Physicians,
conscience, and assisted dying
By requiring that physicians make referrals for assisted
dying, Ontario is forcing them to leave medicine or abandon
their ethical framework.
Policy Options
4 May, 2017
Reproduced with permission
Deina Warren,* Derek Ross*
Of all the jurisdictions worldwide that permit some form
of assisted suicide, Ontario stands alone in mandating that
physicians participate in it.
Assisted suicide, or "medical assistance in dying"
(MAID), as it is now known, was decriminalized in certain
specific circumstances as a result of the Supreme Court's
2015 decision in
Carter v. Canada and has been implemented
through
Bill C-14, which amended relevant sections of the
Criminal Code in 2016.
But does permitting what was once a criminal activity now
mean that all health care professionals must participate?
Not according to the Supreme Court. In Carter the
Court affirmed that nothing in its ruling would compel
physicians to participate in assisted dying. Bill C-14
similarly affirmed that nothing in the amendments would
affect the constitutional guarantee of freedom of conscience
and religion.
And yet Ontario requires its physicians to participate.
Through two policies (Medical
Assistance in Dying and
Professional Obligations and Human Rights), the
College of Physicians and Surgeons of Ontario (CPSO)
mandates all physicians to provide "effective referrals" for
patients seeking MAID even when their conscience dictates
otherwise.
Why are these requirements so offensive? What is it about
freedom of conscience that is so important? And why
shouldn't the government mandate participation in what is no
longer a criminal act? Much can be written in response to
these questions, but two key points will be made here.
First, compelling physicians to participate in MAID results
in the state deciding what everyone should believe; and
second, it undermines physicians' moral integrity, a
foundational component of medical ethics and principled
health care.
A blueprint for moral conformity
Demanding that physicians participate in MAID imposes
state-approved morality on physicians, enforcing moral
conformity. It is more than a judgment about the legitimacy
of conscientious objection in general; it eliminates any
room for dissenting and independent views on deeply
contested moral principles, and it does so with the weight
and authority of the state, meaning the state has the
ability to impose sanctions for falling outside the scope of
what it deems permissible.
The CPSO has chosen to draw a line between refusal to
administer the fatal drug, which it will accommodate when a
physician has a conscientious objection (at least for now),
and refusal to make a referral for that same fatal drug,
which it will not accommodate. In refusals to refer, the
CPSO denies the existence of a possible violation of
conscience. Why accommodate the former and not the latter?
Some see the distinction as an access issue for patients
but, as the Canadian Medical Association (CMA) has
recognized, this position is "not empirically supported
internationally, where no jurisdiction has a requirement for
mandatory effective referral, and yet patient access does
not seem to be a concern."
This differentiation is also inconsistent: if patient
access concerns are sufficient to override sincere
conscientious objections in the context of referrals
for MAID, would they not be sufficient to override sincere
conscientious objections to directly providing
euthanasia or assisted suicide as well? If physicians chose,
en masse, to boycott assisted suicide, would the state
nonetheless compel them to end their patients' lives?
Proponents of effective referrals argue that since MAID
is now authorized by law and publicly funded, all health
care professionals must facilitate it, even if they cannot
directly provide it themselves. However, Canada's
constitutional guarantee of freedom of conscience is not
contingent on whether an objectionable act is legal.
Consider conscientious objectors in the context of war.
The government may fund and authorize participation in war,
considering it a public good, perhaps even a necessary
public good, and yet allowance is made for
conscientious objectors. Not all otherwise qualified
Canadians are obliged to go to war. Even during periods of
conscription, there were mechanisms to exempt conscientious
objectors. (Whether they were effective or fair is another
issue.)
Or consider physician participation in capital punishment
in the United States. The American Medical Association is
very clear that although capital punishment may be
legal, "as a member of a profession dedicated to preserving
life when there is hope of doing so, a physician must not
participate in a legally authorized execution." It defines
participation broadly, to include directly causing death or
assisting, supervising or contributing to the ability of
another person to directly cause death, assessing
competence, monitoring vital signs, certifying death,
consulting with lethal injection personnel and other
actions.
Both these scenarios provide for legally authorized
killing and for protection of freedom of
conscience; in the case of executions, there is a
professional mandate against participation.
To be clear, MAID involves the
intentional act of prematurely ending a patient's life. It
is more than simply withdrawing life-prolonging treatment or
artificial life support; MAID is legalized killing. For
physicians who object to euthanasia, killing a patient
violates clear ethical and moral (sometimes religious)
prohibitions, whether it is legal or not. Indeed,
the position of the World Medical Association (WMA) is
that euthanasia, defined as "the act of deliberately ending
the life of a patient, even at the patient's own request or
at the request of close relatives," is "in conflict with
basic ethical principles of medical practice." The WMA
"strongly encourages all National Medical Associations and
physicians to refrain from participating in euthanasia, even
if national law allows it."
Physicians were identified in the Carter case as
appropriate gatekeepers for MAID precisely because their
independent, professional judgment makes them uniquely
capable of detecting a patient's vulnerability. Professional
judgment that detects vulnerability and professional
judgment that assesses patients' best interests are informed
by the same ethical framework. Professional judgment is, by
its very nature, holistic; it integrates education, clinical
experience and, critically, a morally informed ethical
framework. The state cannot pick and choose which aspects
suit its purposes and jettison the rest.
As Justice Doherty of the Ontario Court of Appeal
recognized in the context of medical marijuana in 2013,
a doctor's ability to deny a patient's request on the basis
of professional judgment — including the view that certain
legal treatment options are medically contraindicated — is
inherent in legislative schemes that entrust physicians with
a gatekeeper role. After all, professional judgment is meant
to provide the safeguards that were necessary preconditions
for MAID's decriminalization.
Decriminalization by the Supreme Court does not — indeed
cannot — mandate that everyone's conscience must align with
its decision nor require that all physicians accept MAID as
ethical or even good health care. Neither does it create a
"right to access" that physicians are obliged to facilitate.
When physicians lose their Charter-protected right to follow
their conscience by state edict, it is not a mere personal
loss.
Removing ethical boundaries for physicians erodes
quality health care for patients
For some conscientiously objecting physicians, the
effective referral requirement means they will
stop accepting patients who are likely to request MAID,
leave Ontario to practise where conscience is protected or
leave the practice of medicine altogether, as has happened
in
Australia and
Norway.
Mandating referral for MAID, aside from being unnecessary
to facilitate access, incorrectly assumes that all patients
want a physician who is willing to participate in MAID
(directly or indirectly) or is willing to act against his or
her own conscience by referring patients. In such a model of
care, there is no room for patients who seek out health care
professionals who practise medicine according to principles
that reflect their own moral convictions, including those
who value human life unconditionally. Conscientiously
objecting physicians enhance patient health care. As the
CMA has stated, it is in a patient's best interests for
the physician to act as a moral agent rather than a
technician devoid of moral judgment.
Physicians who were initially willing to provide MAID
have found the experience "emotionally
distressing" and "overwhelming" to the point that they
cannot continue the practice. It is safe to assume that for
the conscientious objector, the moral distress of
participating either directly or indirectly would be
exponentially greater. Not only does forcing physicians to
act against their conscience cause distress, it desensitizes
them to what are important moral and ethical cues as to the
appropriate professional response to any given situation. It
diminishes — and ultimately extinguishes — the internal
barometer by which physicians exercise their professional
judgment. Such moral integrity is
foundational to a physician's trustworthiness
In short, by demanding effective referrals, Ontario is
forcing physicians to either leave the practice of medicine
or abandon their ethical framework altogether. Neither is a
good outcome for health care, or for patients in need of
caring and competent doctors.
Ontario prides itself on being a province committed to
inclusivity, diversity and human rights. It should not stand
as a global anomaly in failing to safeguard freedom of
conscience, freedom of religion and religious equality in
this context. Now is the time for Ontario to reflect the
international consensus that conscience is worth protecting.
The authors represent three organizations jointly
intervening in Christian Medical and Dental Society et
al. v. College of Physicians and Surgeons of Ontario
(CPSO), a case that involves a constitutional challenge to
the CPSO's "effective referral" requirement. The case is
expected to be heard by the Ontario Divisional Court in June
2017.