Submission to the College of Physicians and Surgeons of Manitoba
Re: Draft Statement on Physician Assisted Dying
(15 October, 2015)
10 November, 2015
Full Text
Abstract
The Project finds the proposed policy concerning the exercise of
physician freedom of conscience generally satisfactory. Unfortunately,
in its current form, the proposed policy could be understood to mean that
objecting physicians cannot or should not discuss euthanasia and assisted
suicide with patients. This is inconsistent with recent advice from
the College of Family Physicians, and it inadvertently introduces bias
against objecting physicians. However, this can easily be corrected by
rewording the draft to bring it more closely into line with existing College
policy on moral or religious beliefs.
The draft does not clearly indicate that patients must be advised about
the possibility that the drugs may not cause death as expected. The
patient should be asked to provide direction as to what the physician should
do in the event of incapacitation by failed physician-assisted suicide or
euthanasia. This situation would be particularly problematic for
physicians willing to assist with suicide but not provide euthanasia.
The killing of an incapacitated patient in such circumstances may be legally
questionable even within the terms of the Carter ruling. At a
minimum, the Project suggests that physicians should not undertake to
provide assisted suicide unless they are also willing to provide euthanasia.
The proposed policy seems to envisage the possibility of delegation of
aspects of the lethal act to other physicians or health care workers.
This increases the likelihood of conflicts of conscience, particularly in
urgent situations. While it seems unlikely that physicians will be
expected to provide euthanasia and assisted suicide on an urgent basis,
there is evidence that this expectation could develop when there is a delay
between final approval and the provision of the procedures. Among
other things, the Project recommends that the responsible physician should
personally administer the lethal drug or be personally present when it is
ingested, remain with the patient until death ensues, and be continuously
available for this purpose once the procedure has been approved.
This submission alsorecommends that the policy should include provisions
to protect physicians, applicants for medical school and medical students
from discrimination.
The Project's view is that if the draft policy is revised in accordance
with its recommendations, the result will be entirely satisfactory from the
perspective of ensuring protection of conscience for physicians, without
impeding patient access to euthanasia and assisted suicide.
Finally, it is unlikely that the College will encounter procedures more
contentious than euthanasia and assisted suicide. If the revisions
proposed in this submission are accepted, the Project suggests that the part
of the policy dealing with physician freedom of conscience could be adopted
as a standard policy applicable to all morally contested procedures and
services. This would very likely make it unnecessary for the College
to revisit the issue of physician freedom of conscience every time social
and technological developments give rise to new morally contested
procedures.
III.2 Paragraph "I.A"
- entirely satisfactory
III.3 Paragraph "I.B"
- entirely satisfactory
III.4 Paragraph
"I.C" - generally satisfactory
III.4.4 Inadvertent bias against objecting physicians
III.5 Summary
IV.1 Introduction
IV.2 Willingness of
physicians to provide assisted suicide vs. euthanasia
A)
Discrimination
B)
Providing information
C)
Obligations of responsible physicians
I. Introduction
I.1 The Protection of Conscience Project is a non-profit,
non-denominational initiative that advocates for freedom of conscience among
health care workers. It does not take a position on the acceptability of
morally contested procedures. Comments and recommendations concerning
Draft
Statement on Physician Assisted Dying (15 October, 2015)
are limited to issues directly or indirectly related to the protection of
physician freedom of conscience.
II. Outline of this submission
II.1 The Project finds the proposed policy concerning the
exercise of physician freedom of conscience generally satisfactory,
recommending revision of one element to correct inadvertent bias against objecting
physicians (Part III).
II.2 The practical and possible legal consequences of
failed euthanasia/assisted suicide procedures are discussed Part IV.
II.3 The need to take additional steps to ensure
freedom of conscience for objecting physicians and health care workers in
urgent situations is discussed in Part V.
II.4 The importance of protecting physicians, applicants
for medical school and medical students from discrimination is noted in
Part VI.
II.5 A number of recommendations are made in
Part VII to address the issues raised in this
submission. The recommendations are intended to
minimize the likelihood of conflicts of conscience among other physicians and health
care workers.
II.6 In Part VIII, the Project
suggests that the part of the policy developed by the College to address
physician freedom of conscience in relation to assisted suicide and
euthanasia could be adopted as a standard policy applicable to all morally
contested procedures and services if the recommendations in this submission
are accepted.
III. Freedom of conscience
III.1 From the Project perspective, the critical part of the
proposed policy is Part I, reproduced here:
I. Minimum Requirements of All Physicians
A. Physicians must not impede patients' access to
physician assisted dying or impose their moral or religious beliefs about
physician assisted dying on patients.
B. A physician who elects not to provide or
participate in physician assisted dying for any reason is not required to
provide it or participate in it or to refer the patient to a physician who
will provide physician assisted dying to the patient.
C. When a physician receives a request from a patient
to provide or participate in providing physician assisted dying to that
patient or to be referred to another physician who will, if that physician
elects not to provide or participate in providing physician assisted dying
to the patient that physician must:
1. disclose his/her objection to providing or
participating in physician assisted dying to the patient; and
2. provide the patient with timely access to another
member or resource2 that will provide accurate information about physician
assisted dying3; and
3. continue to provide care unrelated to physician
assisted dying to the patient until that physician's services are no longer
required or wanted by the patient or until another suitable physician has
assumed responsibility for the patient; and
4. make available the patient's chart and relevant
information (i.e., diagnosis, pathology, treatment and consults) to the
physician(s) providing physician assisted dying to the patient when
authorized by the patient to do so; and
5. provide a copy of this Statement to the patient.
________
2.
Resources may include but are not limited to other health care
providers, counsellors and publicly available resources for physician
assisted dying.
3. CPSM
Statement 181
Members Moral or Religious Beliefs not to Affect Medical
Care
III.2 Paragraph "I.A" - entirely
satisfactory
III.2.1 In view of paragraphs "I.B" and "I.C," the expectation in "I.A"
cannot be understood to mean that the exercise of freedom of conscience in
accordance with this policy amounts to imposing moral or religious beliefs
or impeding patients' access to services. This is entirely
satisfactory.
III.3 Paragraph "I.B" - entirely
satisfactory
III.3.1 Paragraph "I.B" is entirely satisfactory because
it recognizes that the issue of complicity arises not just with respect to
providing a procedure, but also with respect to indirect forms of
participation, including referral.
III.3.2 This is consistent with the distinction made
in the factum of the Canadian Medical Association in its intervention in the
Carter case at the Supreme Court of Canada when it insisted that
the law should protect both physicians providing the procedures and those
who do not (para. 28).
[N]o physician should be compelled to
participate
in or provide medical aid in dying to a patient, either at all, because
the physician conscientiously objects . . . or in individual cases, in which
the physician makes a clinical assessment that the patient's decision is
contrary to the patient's best interests.(para. 27) (Emphasis added)1
III.3.3 It is also consistent with the distinction
made by the Supreme Court in the Carter ruling:
III.3.4 Finally, the provision is consistent with
guidelines just released by the College of Family Physicians of Canada:
. . .the right to freedom of conscience in law and
ethics normally extends to an individual's right to limit cooperation with
others in a practice that he or she objects to on ethical grounds. This is
pertinent to the degree of involvement that a physician judges to be
ethically acceptable in responding to a patient's request for assisted
suicide or euthanasia. Such involvement might range from providing
information to the patient on how to end his or her life, to prescribing
medication or administering medication, to referring or transferring the
care of the patient to another physician or third party. In general, the
more essential and direct the cooperation is in bringing about an outcome
to which that physician objects on the grounds of conscience, the more
complicit the physician would be in it.3
III.4 Paragraph "I.C" - generally
satisfactory
III.4.1 The proposed policy presumes that a request for
euthanasia or physician assisted suicide will come from the patient.
It does not impose a requirement that physicians offer patients the options
of euthanasia or assisted suicide. This is prudent, for two reasons.
a) Even physicians willing to provide or refer for the procedures might sometimes
consider it harmful or even abusive to offer them as options: the case of a patient just
blinded or paralysed by an industrial accident comes to mind.
b) The
Carter decision did not strike down the law against counselling suicide
[241(a) Criminal Code], so the gratuitous suggestion of physician assisted suicide even to
patient who meets the Carter criteria may expose physicians to criminal prosecution.
III.4.2 In the Project's experience, physicians who
object to providing morally contested procedures do not normally object to
providing information about them that a patient needs in order to make
informed decisions. Moreover, the Project's experience is that
objecting physicians are particularly sensitive to and anxious to respond to
the difficult circumstances that may cause patients to request euthanasia or
physician assisted suicide. In this regard, the suggestions made in
recent guidance from the College of Family Physicians of Canada indicate the
kind of response that should be presumed and encouraged.4
III.4.3 However, in its current form, the proposed
policy could create the impression that objecting physicians cannot or
should not discuss euthanasia and assisted suicide with patients. This
is an erroneous conclusion that should be corrected (see III.4.4).
III.4.4 Inadvertent bias against objecting physicians
III.4.4.1 Paragraph I.C2 states that
physicians who, for reasons of conscience, refuse to provide, participate in
or refer for euthanasia and assisted suicide must "provide the patient with timely access to another
member or resource that will provide accurate information about physician
assisted dying." This statement implies that such physicians are not
capable of providing accurate information about these procedures, and,
further, that only physicians who support euthanasia and assisted suicide
are capable of doing so.
III.4.4.2 The underlying presumption here seems to be
that physicians who support assisted suicide and euthanasia are trustworthy
sources of information about the procedures, but physicians opposed to
euthanasia and assisted suicide are not. This is inaccurate, unfair
and biased. Leaving aside legal issues, it is unlikely that a
physician opposed to female genital mutilation would, by reason of that
opposition, be considered an unreliable source of information about the
procedure.
III.4.4.3 However, the fact that this paragraph cites
CPSM Statement 181,
Members Moral or Religious Beliefs not to Affect Medical
Care, suggests that the bias in the draft document is
inadvertent. The relevant section of Statement 181 states:
If the moral or religious beliefs of a
member prevent him or her from providing or offering access to
information about a legally available medical treatment or procedure,
the member must ensure that the patient who seeks that advice or medical
care is offered timely access to another member or resource that will
provide accurate information about all available medical options.5
(Emphasis added)
III.4.4.4 This statement correctly recognizes that moral
or religious beliefs do not necessarily prevent physicians from providing
accurate information about procedures to which they object. Only if
physicians' beliefs preclude the provision of information are they expected
to direct the patient to other sources of information.
III.4.4.5 The bias in paragraph I.C2 can
be corrected in one of two ways:
a) by incorporating a more substantial rendering of the above section
of Statement 181: for example -
2. Provide all information necessary to facilitate informed decision-making
by the patient. If the moral or religious beliefs of a member prevent
him or her from providing or offering access to information about physician
assisted dying,3 provide the patient with timely access to another
member or resource2 that will provide
accurate information about all available medical options.
b) by adopting a more comprehensive statement: for
example -
2. Provide all information necessary to
facilitate informed decision-making by the patient. Advise
patients that they may approach other physicians, health care providers or
sources if they wish to obtain euthanasia or assisted suicide. In
response to a patient request, provide information about how to contact
other physicians, health care providers or sources of information. If
the moral or religious beliefs of a member prevent him or her from providing
or offering access to information about physician assisted dying,3 provide the patient with timely access to another
member or resource2 that will provide
accurate information about all available medical options.
III.4.4.6 Either of these proposed revisions may more
accurately reflect what the current draft was actually meant to express.
III.5.1 CPSM Statement 181, Members Moral or Religious Beliefs not to Affect Medical
Care, requires objecting physicians to ensure that patients
have information necessary for informed decision-making, but does not
require them to facilitate access to morally contested procedure by
referral. This distinction preserves physician freedom of conscience and
religion, but it does not impede access to services. The wisdom of
this approach
has become particularly obvious since the
Carter ruling.
IV. Failed assisted suicide and euthanasia
IV.1 Introduction
IV.1.1 According to the draft, the patient must be informed of
"the potential risks and complications associated with taking the lethal
medication." It is not clear
that this includes discussion about the possibility that the drugs may not kill the patient.
IV.1.2 The proposed policy requires the physician who
is to provide or administer the lethal medication to "be readily available
to care for the patient" from the time the medication is provided or
administered "until the patient is declared dead by a physician."
However, it does not require the responsible physician to personally
administer or provide the lethal medication or to remain until death ensues.
This suggests the possibility of delegation of aspects of the lethal act to
other physicians or health care workers, which increases the likelihood of
conflicts of conscience.
IV.1.3 Further, euthanasia and assisted suicide drugs do not always cause death as expected.6 It is for
this reason that Quebec euthanasia kits are to include two courses of medication.7
IV.1.4 Discussion with patients should include discussion of options available in the event that a
lethal injection or prescribed drug does not kill the patient, and the patient should be
asked to provide direction on this point.
IV.1.5 As will be seen presently, this issue appears to
have legal implications with respect to a physician's criminal responsibility,
and also implications for physician freedom of conscience.
IV.2 Willingness of physicians to provide assisted suicide vs. euthanasia
IV.2.1 A 2014 survey of Canadian Medical Association members indicated that more physicians
were willing to participate in assisted suicide (27%) than euthanasia (20%).8,9,10,11
IV.2.2 However, a physician who agrees to help a patient commit suicide would seem to have
accepted an obligation to do something that will result in the patients death, and to do it
according to accepted standards. This obligation seems implicit in the agreement.
IV.2.3 In the case of a failed physician-assisted suicide that incapacitates a patient, it is likely
that the responsible physician will be expected to fulfil his commitment to help bring
about the death of the patient by providing a lethal injection or finding someone willing to
do so. The expectation would be stronger if the patient had sought assisted suicide to
avoid the kind of incapacitation caused by the failed suicide attempt.
IV.2.4 Here the issue of physicians willing to assist in suicide but
unwilling to provide euthanasia becomes acute. Those willing to assist with
suicide but not euthanasia may be reluctant or unwilling to ask another
colleague to kill the patient.
IV.2.5 Moreover, the
Carter
ruling limits the provision of euthanasia to competent patients. Thus, to ask physicians to
kill a patient who has been rendered incompetent by a colleague's failed attempt would
seem to expose them to prosecution for first degree murder or, at least, assisted suicide.
Even the legal position of an administering physician faced with a patient
incapacitated by the first course of medication seems doubtful.
V. Urgent situations
V.1 Some authorities have stated that a physicians obligation to provide treatment urgently
needed to prevent imminent harm to patients does not extend to providing assisted suicide
or euthanasia.12 This presumes that, since the procedures require extensive preliminary
consultation and preparation before they can be authorized, they can never be urgently
required. The silence of the draft document on this point suggests a similar presumption
in Manitoba.
V.2 That presumption is challenged by testimony taken by the Quebec legislative committee
studying what later became the provinces euthanasia law (An Act Respecting End of Life
Care). Representatives of the College of Pharmacists of Quebec agreed that the provision
of euthanasia would not seem to involve the same urgency as other kinds of procedures,
and that arrangements could normally be made to accommodate conscientious objection
by pharmacists because the decision could be anticipated.13 However, they also stated
that situations may evolve more quickly than expected, and that (for example) palliative
sedation might be urgently requested as a result of respiratory distress precipitated by
sudden bleeding.14
V.3 The pharmacist representatives distinguished between making a decision that euthanasia
or assisted suicide should be provided - a decision which might take days or weeks - and
a decision that a drug should be urgently provided to deal with an unanticipated and
critical development in a patients condition.15
V.4 Under the terms of the
Carter ruling and the draft document, it is possible that a
responsible physician might agree to provide euthanasia or assisted suicide on a given
date and time, to accommodate (for example) the desire of geographically distant family
members to be present at the patients death. Between the time that decision is made and
the appointed time, however, a sudden deterioration of the patients condition may cause
him to ask for immediate relief from pain or suffering by euthanasia or assisted suicide.
V.5 No problem will arise if the responsible physician is immediately available to fulfil the
request. However, there is likely to be a problem if the responsible physician is absent or
unavailable, and other physicians willing to kill the patient or assist in suicide cannot be
conveniently found. This situation is more likely to arise if the originally appointed time
for euthanasia/assisted suicide is some days later than the decision to provide the
procedure.
VI. Discrimination against objecting physicians, medical school applicants and students
VI.1 The policy does not address the issue of discrimination against medical school applicants,
medical students and physicians who refuse to provide or facilitate euthanasia for reasons
of conscience. This can be addressed by adopting a provision derived from
the current Canadian Medical Association policy, Induced Abortion:16
No discrimination should be directed against applicants for medical school or
doctors who refuse to perform, assist with or facilitate euthanasia or assisted suicide.
Respect for freedom of conscience in this area must be stressed, particularly for
doctors training in general practice, palliative care and anesthesia.
VI.2 This proposal, while intended
to protect freedom of conscience, would also
function as an additional safeguard against abuses that even the successful
appellants in the Carter case are keen to avoid. In his oral submission,
Mr. Arvay, counsel for the appellants, stated:
[I]t is also an irrefutable truth, borne out by the
evidence in this case from all sides, that all doctors believe it is their
professional and ethical duty to do no harm, which means, in almost every
case, that they will want to help their patients live, not die. And it's for
the very reason that we advocate only physician assisted dying and not any
kind of assisted dying, because we know physicians will be reluctant
gatekeepers, and only agree to it as a last resort.17
VI.3 The proposed revision would help to ensure that
physicians can remain the reluctant gatekeepers that Mr. Arvay wishes them
to be.
VII. Recommendations
VII.1 Paragraphs "I.A" and "I.B"
of the proposed policy are entirely satisfactory.
VII.2 The provisions of "I.C" of the proposed policy
are generally satisfactory. However, for the reasons given in Part
III.4 of this submission, paragraph "I.C2"
should be revised to correct what appears to be inadvertent bias.
VII.3 The policy should address the issue of
discrimination against medical school applicants, medical students and
physicians who refuse to provide or facilitate euthanasia for reasons of
conscience.
VII.4 Part IV and V
of this submission demonstrate a need to include in the policy some additional guidance in
order to avoid conflicts of conscience and concerns about criminal responsibility in
particularly difficult circumstances, and to avoid conflicts of conscience among health
care workers who may be involved in other aspects of the care or treatment of a patient.
VII.5 The following recommendations address these
concerns. To avoid ambiguity, the term "responsible physician" is used in
this part to mean a physician who has agreed to assist with the patients
suicide or provide euthanasia, distinct from (for example) a family
physician who has declined to do so, but who continues to be responsible for
other aspects of patient care.
1. A policy to the following effect should be
included:
No discrimination should be directed against applicants for medical school or
doctors who refuse to perform, assist with or facilitate euthanasia or assisted suicide.
Respect for freedom of conscience in this area must be stressed, particularly for
doctors training in general practice, palliative care and anesthesia.
2. Paragraph I.C2 should be revised in the
manner indicated in III.4.4.5. Either:
2. Provide all information necessary to facilitate informed decision-making
by the patient. If the moral or religious beliefs of a member prevent
him or her from providing or offering access to information about physician
assisted dying,3 provide the patient with timely access to another
member or resource2 that will provide
accurate information about all available medical options.
or:
2. Provide all information necessary to
facilitate informed decision-making by the patient. Advise
patients that they may approach other physicians, health care providers or
sources if they wish to obtain euthanasia or assisted suicide. In
response to a patient request, provide information about how to contact
other physicians, health care providers or sources of information. If
the moral or religious beliefs of a member prevent him or her from providing
or offering access to information about physician assisted dying,3 provide the patient with timely access to another
member or resource2 that will provide
accurate information about all available medical options.
3) Physicians should not undertake to provide assisted suicide unless they are also
willing to provide euthanasia.
4) In all cases, the responsible physician should, as
part of the informed consent discussion preliminary to decision making, advise
the patient of the possibility that the drugs might not cause death and discuss
the options available.
5) Immediately prior to
administering or providing the lethal medication, the responsible physician
should obtain written direction from the
patient as to what action should be taken if the prescribed or administered drugs
fail to cause death. (NB. In the case of patients incapacitated by failed
euthanasia/assisted suicide, it is not known if this would be legally sufficient to
invoke the exemption from prosecution provided by Carter.)
6) The responsible physician should personally administer the lethal drug or be
personally present when it is ingested, and remain with the patient until death ensues.
7) A responsible physician who has agreed to provide euthanasia or assisted
suicide must be continuously available to do so from the time the agreement is
made to the time that the procedure is performed, unless the patient withdraws the
request.
8) A responsible physician who has agreed to provide euthanasia or assisted
suicide must also arrange for a second responsible physician to provide the
procedure in the event that he is unable to be continuously present or is unable to
act.
9) The second responsible physician must be continuously available to act in the
place of the primary responsible physician.
VIII. Closing remarks
VIII.1 The Project's view is that if the draft
policy is revised in accordance with these recommendations, the result will
be entirely satisfactory from the perspective of ensuring protection of
conscience for physicians without impeding patient access to euthanasia and
assisted suicide.
VIII.2 It is unlikely that the College is likely to
encounter morally contested procedures more contentious than euthanasia and
assisted suicide.
VIII.3 If revised in accordance with the
recommendations under VII.5
(A) and (B), Part I of the
draft policy could be adopted as a standard policy applicable to all morally
contested procedures and services. This would very likely make
it unnecessary for the College to revisit the issue of physician freedom of
conscience every time social and technological developments give rise to new
morally contested procedures.
Notes
1. In the SCC on appeal from the BCCA,
Factum of the Intervener, The Canadian Medical Association (27
August, 2014)
2.
Carter v. Canada (Attorney General), 2015 SCC 5, 132 (Accessed 2015-10-30)
3. College of Family Physicians of Canada,
A Guide for Reflection on Ethical Issues Concerning Assisted Suicide and
Voluntary Euthanasia (September, 2015) (Hereinafter "CFPC Guide") p. 4 (Accessed 2015-10-30)
4.
CFPC Guide, p.5
5. College of Physicians and Surgeons of Manitoba,
Statement No. 181: Members Moral or Religious Beliefs not to Affect
Medica Care (Effect 1 May, 2014) (Accessed 2015-10-30)
6. Groenewoud JH, van der Heide A.
Onwuteaka-Philipsen BD Willems DL van der Maas PJ, van der wal G., "Clinical
Problems with the Performance of Euthanasia and Physician-Assisted Suicide
in the Netherlands." N Engl J Med 2000; 342:551-556 February 24, 2000
7. Ubelacker S. "Quebec MDs to get euthanasia guide to prepare for legalized assisted death:
Unclear whether other provinces and territories will adopt a similar practice."The Canadian
Press, 1 September, 2015
(Accessed 2015-09-03).
8. Moore E.
"Doctor is hoping feds will guide on assisted suicide legislation." Edson Leader,
12 February, 2015.
(Accessed 2015-07-16).
9. Rich, P.
"Physician perspective on end-of-life issues fully aired." Canadian Medical
Association, 19 August, 2014
(Accessed 2015-06-22).
10. Ubelacker S.
"Medical professionals try to answer burning questions on doctor-assisted
death." Associated Press, 13 February, 2015
(Accessed 2015-07-04).
11. Kirkey S.
"How far should a doctor go? MDs say they 'need clarity' on Supreme Courts
assisted suicide ruling." National Post, 23 February, 2015
(2015-07-04)
12. A request for physician assisted death will not
be considered an emergency in the context of this policy, and is therefore not a
service or intervention that physicians will be required to provide, contrary to
their conscience or religion. College of Physicians and Surgeons of Ontario,
Professional Obligations and Human Rights: Frequently Asked Questions.
(Accessed 2015-10-17)
13. Consultations & hearings on Quebec Bill 52, College of Pharmacists of Quebec:
Dianne Lamarre, Manon Lambert. Tuesday 17 September 2013 - Vol. 43 no. 34,
T#49,
T#58.
14. Consultations & hearings on Quebec Bill 52, College of Pharmacists of Quebec:
Dianne Lamarre, Manon Lambert. Tuesday 17 September 2013 - Vol. 43 no. 34,
T#33.
15. Consultations & hearings on Quebec Bill 52, College of Pharmacists of Quebec:
Dianne Lamarre, Manon Lambert. Tuesday 17 September 2013 - Vol. 43 no. 34,
T#76,
T#87,
T#88
16. Canadian Medical Association,
Induced Abortion (1988)(Accessed 2010-10-30)
17. Supreme Court of Canada, 35591,
Lee Carter, et al. v. Attorney General of Canada, et al. (British
Columbia) (Civil) (By Leave)
Webcast of the Hearing on 2014-10-15:
Oral submission of Joseph
Arvay, (81:09/491:20 - 82:12/491:20) (Accessed 2015-06-26)