Appendix "C"

Full Text

C1.    Introduction

C1.1    Conscientious Refusal as revised states that it will not apply to "physician assisted death or physicians' conscientious objection related to a potential physician assisted death" (i.e., physician administered euthanasia and physician assisted suicide).1

C1.2    However, almost all of the principles introduced into the revised policy have already been used in support of euthanasia and assisted suicide.

C.2    Euthanasia/assisted suicide supported by principles

C2.1    Conscientious Refusal as revised by the drafting committee now includes an introductory paragraph that identifies the principles upon which it is based.

C2.2    Fiduciary duty

C2.2.1    The first principle identified in Conscientious Refusal as revised is "the fiduciary relationship between a physician and a patient." This is also addressed in the first line of the College of Physicians and Surgeons of Ontario (CPSO) policy provided to College Council: "The fiduciary nature of the physician-patient relationship requires that physicians act in their patients' best interests."2

C2.2.2    Assisted suicide and euthanasia advocates argue that the procedures are in the "best interests" of some patients.

C2.2.3    The trial judge in Carter v. Canada3 acknowledged that physicians are expected to act in the "best interests" of patients (para. 311) and, when summarizing arguments in favour of euthanasia and assisted suicide, stated:

Individuals may experience such suffering (physical or existential), unrelievable by palliative care, that it is in their best interests to assist them in hastened death. Physicians are required to respect patient autonomy, to act in their patients' best interests and not to abandon them. Where those principles co-exist, assistance in hastened death may be ethically permitted. (para. 315e)

C2.2.4    In justifying her ruling in favour of physician assisted suicide, the trail judge referred to "a strong consensus that if physician-assisted dying were ever to be ethical, it would be only be with respect to those patients, where clearly consistent with the patient's wishes and best interests, and in order to relieve suffering." (para. 358)

C2.3    Patient autonomy

C2.3.1    "Patient autonomy" is the second principle identified. Appeals to patient autonomy are central to the arguments of euthanasia and assisted suicide advocates. The Royal Society of Canada panel of "experts" asserted that, though not exclusive, "the value of individual autonomy or self-determination . . . should be seen as paramount."4

The commitment to autonomy, which as we have seen is a cornerstone of our constitutional order, thus quite naturally yields a prima facie right to choose the time and conditions of one's death, and thus, as a corollary, to request aid in dying from medical professionals.5

C2.3.2    The panel appealed to patient autonomy to justify its demand that health care workers unwilling to kill patients or help them kill themselves should be forced to refer patients to someone who would do so.6 The Carter plaintiffs, seeking legalization of physician assisted suicide and euthanasia, quoted extensively from the panel's discussion of autonomy and "wholeheartedly" embraced its report.7

C2.4    Continuity of care/ left without appropriate care

C2.4.1    Conscientious Refusal as revised refers to a patient's right "to continuity of care" and insists that patients "should not be . . . left without appropriate care due to the personal beliefs of their physicians."

C2.4.2    Leaving aside disputes about whether or not lethal injection can be properly classified as a form of "care" - disputes that have not been ended by Carter - this assertion seems to be based on the principle of non-abandonment.

C2.4.3    Health care workers who refuse to provide or facilitate euthanasia and assisted suicide may be accused of abandoning their patients.8

C2.4.4    Testifying during the trial in Carter, Professor Margaret Battin stated that "non-abandonment" is a "core value" or "norm of practice" for physicians.

Physicians are under an ethical obligation to try to respond to autonomous requests from their patients, especially when those requests revolve around extremes of suffering in those who are otherwise dying. . .

The nature of the patient's suffering and why it is intolerable to the patient must also be understood by the physician, who then is obliged to try to respond as a matter of mercy and in fulfilment of his or her commitment not to abandon the dying patient. . . for the physician to offer assistance in dying, it must be the patient's choice and it must also be done to help the patient avoid suffering that is either intolerable or about to be so.9

C2.4.5    Professor Battin was called by the plaintiffs to help to make the case for legalization of physician assisted suicide and euthanasia. Plaintiff witnesses were prepared to testify with the help of Professor Jocelyn Downie,10 co-author of the CRG policy largely copied in CR No. 1.

C2.5    Intentional or unintentional barriers to care/disadvantage/equitable access

C2.5.1    Conscientious Refusal as revised warns physicians against erecting "barriers to care" or disadvantaging patients.

C2.5.2    Dr. James Downar, a euthanasia advocate, has said that conscientious objection within the context of killing patients or helping them commit suicide "can serve as a barrier."

C2.5.3    What constitutes a "barrier" or "disadvantage" is a polemical issue. In Ontario, for example, Facebook crusaders believe that an unacceptable "barrier" or "disadvantage" exists if a patient has to drive around the block or cross the street to obtain birth control pills.12

C2.5.4    Most physicians prescribe contraceptives, and birth control is widely available. In contrast, only a minority of physicians provide euthanasia and assisted suicide even where the procedures have been legal for years.13 If it is said to be necessary to force objecting physicians to help patients obtain birth control in order to ensure patient "access" or to prevent "disadvantage" or "barriers it care," it would seem that there will be an even greater need to force objecting physicians to help find someone willing to kill a patient or assist in suicide.

C2.6    Reasonable limits

C2.6.1    Conscientious Refusal as revised states that "reasonable limits on a physician's ability to refuse to provide care are appropriate unless there is a good legal reason that the patient's interests should not be accommodated."

C2.6.2    Since a physician can only provide treatment that is legal in the circumstances of a particular patient, there can never be "a good legal reason" not to accommodate a patient's interests.

C2.6.3    Purged of its needless polemical convolutions, the statement amounts to this: that a physician's exercise of freedom of conscience is always subject to reasonable limits.

C2.6.4    As illustrated by the report of the Royal Society of Canada panel of "experts," euthanasia and assisted suicide advocates interpret this to mean that physicians unwilling to kill patients can be compelled to find someone else to do the killing.

Notes

1.  Policy: Conscientious Refusal-2: Scope. In Salte BE. Memorandum to Council re: Draft Policy, Conscientious Objection, 20 March, 2015 (CPSS No. 73/15) , p. 10-11, 14-15.

2.  College of Physicians and Surgeons of Ontario Policy Statement #2-15, Professional Obligations and Human Rights, Sept. 2008 (Reviewed and updated March, 2015) p. 1.  In Salte BE.  Memorandum to Council re: Draft Policy, Conscientious Objection, 20 March, 2015 (CPSS No. 73/15) , p. 18-25

3.  Carter v. Canada (Attorney General) 2012 BCSC 886. Supreme Court of British Columbia, 15 June, 2012. Vancouver, British Columbia (Accessed 2015-05-31).

4.  Schuklenk U, van Delden J.J.M, Downie J, McLean S, Upshur R, Weinstock D. Report of the Royal Society of Canada Expert Panel on End-of-Life Decision Making (November, 2011) p. 41 (Accessed 2014-02-23).

5.  Schuklenk U, van Delden J.J.M, Downie J, McLean S, Upshur R, Weinstock D.  Report of the Royal Society of Canada Expert Panel on End-of-Life Decision Making (November, 2011) p. 45 (Accessed 2014-02-23).

6.   Schuklenk U, van Delden J.J.M, Downie J, McLean S, Upshur R, Weinstock D.  Report of the Royal Society of Canada Expert Panel on End-of-Life Decision Making  (November, 2011) p. 62 (Accessed 2014-02-23).

7.  In the Supreme Court of British Columbia, between Lee Carter, Hollis Johnson, Dr. William Shoichet and the British Columbia Civil Liberties Association and Gloria Taylor (Plaintiffs) and the Attorney General of Canada and Attorney General of British Columbia (Defendants), Written Submissions of the Plaintiffs, dated 1 December, 2011, para 66 (Accessed 2015-06-02).

8.  Angell M., Lowenstein E. Letter re: Redefining Physicians' Role in Assisted Dying. N Engl J Med 2013; 368:485-486 January 31, 2013 DOI: 10.1056/NEJMc1209798 (Accessed 2015-05-31).

9.  Carter v. Canada (Attorney General) 2012 BCSC 886. Supreme Court of British Columbia, 15 June, 2012. Vancouver, British Columbia, para. 239-240 (Accessed 2015-05-31).

10.  Carter v. Canada (Attorney General)2012 BCSC 886. Supreme Court of British Columbia, 15 June, 2012. Vancouver, British Columbia, para. 124 (Accessed 2015-05-31).

11.  Grant K. "Canadian doctors drafting new rules in case doors open to assisted suicide." Globe and Mail, 5 February, 2015 (Accessed 2015-06-01).

12.  Murphy S. "'NO MORE CHRISTIAN DOCTORS!' Crusade against NFP-only physicians." Protection of Conscience Project.

13.  Murphy S. "Redefining the Practice of Medicine: Euthanasia in Quebec-An Act Respecting End-of-Life Care (June, 2014) Appendix "C": Statistics.

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