Submission to the College of Physicians and Surgeons of Ontario
Re: Interim Guidance on Physician Assisted Death
10 January, 2016
Full Text
Abstract
Virtually all of what is proposed in
Interim Guidance on
Physician-Assisted Death (IGPAD) is satisfactory, requiring only
clarifications to avoid misunderstanding and appropriate warnings concerning
the continuing effects of criminal law.
The College has no basis to proceed against physicians who refuse to do anything
that would entail complicity in homicide or suicide, including "effective
referral," because they believe that a patient does not fit the criteria
specified by Carter. College policies and expectations are of no
force and effect to the extent that they are inconsistent with criminal
prohibitions.
Proposals about respect for patients, access to services, and providing
information are acceptable, subject to some clarifications and limitations
with respect to offering the option of suicide. Simple and uncontroversial
recommendations are offered to avoid problems associated with failed
assisted suicide and euthanasia attempts, and in urgent situations.
However, the requirement for "effective referral "is completely
unacceptable. It is ludicrous to assert that the reasoning that underpins
the law on criminal complicity and culpability, civil liability and the
College policy that prohibits referral for Female Genital Cutting can be
dismissed as legally irrelevant to the exercise and protection of
fundamental freedoms of conscience and religion.
The College cannot justify a demand for "effective referral" on the
grounds that it cannot be understood to involve morally significant
complicity in killing patients or helping them to commit suicide, nor can it
be justified as a reasonable limitation on fundamental freedom.
The only
apparent basis for the College's demand for effective referral is that it
has decided what the Supreme Court of Canada did not decide: that euthanasia
and assisted suicide in circumstances defined by Carter are
morally/ethically acceptable. College officials seem to consider the College
justified in using force - the force of law - to compel dissenting
physicians to conform to their moral/ethical views.
This is not a reasonable limitation of freedom but a reprehensible attack
on them. It is a paradigmatic example of the authoritarian suppression of
freedom of conscience and religion and a serious violation of human dignity.
Examples of alternative acceptable policies demonstrate that access to
assisted suicide and euthanasia can be ensured without suppressing freedom
of conscience and religion.
Contents
II.1 Failed assisted suicide and
euthanasia II.2 Urgent situations
II.3 Project recommendations
IV.1 Treat patients respectfully; do
not impede access
IV.2 Notification of objections
IV.3 Providing information
V.1 IGPAD and "effective referral"
V.2 "Effective referral" and criminal law
V.3 Legal vs. ethical/moral
evaluation of euthanasia, assisted suicide
V.4 The
College position: "error has no rights"
VI.1 Previous submissions
VI.2 Making freedom easy - or
impossible
A1.
Carter criteria for euthanasia and physician assisted suicide
A2.
Carter and the criminal law
A3.
Carter and freedom of conscience and religion
B1. A note of caution
B2. The questions addressed in Part VII
B3.
Plaintiffs'
claim shapes and limits the analysis
B4. Ethics: which one?
B5. Medical ethics
B5.1 Ethics and the willingness of physicians
B5.2 Ethics and the positions of medical associations
B5.3 Ethics and the opinions of ethicists
B5.4 Ethics and current end-of-life practices
B6. Ethics of society
B6.2 Ethics and public opinion
B6.3 Ethics and public committees
B6.4 Ethics and prosecution policies
B7. Summary of the ethical debate
B8.
Conclusions about the ethical debate
B8.2 Would Canadian physicians provide the services?
B8.3 Current medical practice with respect to end-of-life care?
B8.4 Does the law attempt to uphold a conception of morality?
B9. Carter Part VII: in brief
B9.1 Unanswered questions
B9.2 Meaningless findings
B9.3 Inconclusiveness
B9.4 Neglected evidence
B9.5 Deficient review of end-of-life decision-making
B10. On appeal to the Supreme Court of
Canada
C1. Introduction
C2. Providing information to patients
C3. Exercising freedom of conscience or religion
C4. Reminder: treatments in emergencies
I. Outline of the submission
I.1 The Project does not take a position on the
acceptability of euthanasia and physician-assisted suicide. For this reason,
much of the draft
Interim Guidance on Physician-Assisted Death (IGPAD) is outside the
scope of this submission.
I.2 From the perspective of freedom of conscience,
virtually all of what is proposed in IGPAD is satisfactory, requiring only
clarifications to avoid misunderstanding and appropriate warnings concerning
the continuing effects of criminal law.
I.3 The first issue raised concerns conflicts that can
adversely impact patients, families and objecting health care providers in
two different situations: in failed assisted suicide and euthanasia
attempts, and in urgent situations. Simple and uncontroversial
recommendations are offered to avoid these problems. (Part II)
I.4 The submission next points out the legal effect of
Carter v. Canada with respect to the law on homicide, suicide, parties to
offences, counselling offences and conspiracy, and that counselling
(recommending) suicide remains a criminal offence. In some circumstances
this will limit the power of the College to enforce demands for physician
participation. (Part III)
I.5 Part IV considers the draft
policy's proposals about respect for patients, access to services, and
providing information. The proposals are acceptable, subject to some
clarifications and limitations with respect to offering the option of
suicide.
I.6 IGPAD requires that physicians who, for reasons of
conscience, are unwilling to kill patients or help them commit suicide,
must, nonetheless, find someone willing to do so. It also threatens to
punish physicians who refuse to become parties to homicide and suicide. This
unacceptable demand, now the subject of a lawsuit against the College, is
the primary focus of this submission. It is addressed in Parts
V and VI.
I.7 Examples of acceptable alternative policies are
offered in Part VII.
II. Avoiding foreseeable conflicts
II.1 Failed assisted suicide and
euthanasia
II.1.1 According to the draft, the patient must "understand and
appreciate the certainty of death upon taking or having the physician
administer lethal medication." In fact, euthanasia and assisted suicide
drugs do not always cause death as expected.1 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.
II.1.2 A 2014 survey of Canadian Medical Association
members indicated that more physicians were willing to participate in
assisted suicide (27%) than euthanasia (20%).2,3,4,5
II.1.3 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 patient's death, and to do it according to
accepted standards. This obligation seems implicit in the agreement.
II.1.4 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.
II.1.5 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.
II.1.6 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.
II.2 Urgent situations
II.2.1 The College policy on Professional Obligations
and Human Rights (POHR) conflicts with the draft Interim Guidance document.
IGPAD insists that "effective referral" for euthanasia and assisted suicide
must be "timely," and that patients must not be exposed to adverse clinical
outcomes by delay. However, POHR states that a physician's obligation to
provide treatment urgently needed to prevent imminent harm to patients does
not extend to providing assisted suicide or euthanasia.6 This appears to
assume that, since the procedures require extensive preliminary consultation
and preparation before they can be authorized, they can never be urgently
required.
II.2.2 That presumption is challenged by testimony
taken by the Quebec legislative committee studying what later became the
province's 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.7 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.8
II.2.3 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 patient's condition.9
II.2.4 Under the terms of the Carter ruling and the
draft policy, 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 patient's death. Between the time that decision
is made and the appointed time, however, a sudden deterioration of the
patient's condition may cause the patient to ask for immediate relief from
pain or suffering by euthanasia or assisted suicide.
II.2.5 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.
II.3 Project recommendations
II.3.1 Physicians should not undertake to provide
assisted suicide unless they are also willing to provide euthanasia.
II.3.2 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.
II.3.3 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.)
II.3.4 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.
II.3.5 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.
II.3.6 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.
II.3.7 The second responsible physician must be
continuously available to act in the place of the primary responsible
physician.
III. IGPAD and criminal law
III.1 The draft policy states:
On [6 February, 2016], subject to any prohibitions or
restrictions that may be imposed in future legislation or policy, physicians
will be legally permitted to assist competent adults who are suffering
intolerably from grievous and irremediable medical conditions to end their
lives. (Lines 17-20)
III.2 While this statement is accurate as far as it
goes, it fails to correctly assess the legal effect of Carter v. Canada
with respect to the law on homicide, suicide, parties to offences,
counselling offences and conspiracy and to acknowledge that counselling
(recommending) suicide remains a criminal offence.
III.3 The implications of the continuing offence of
counselling suicide will be discussed in relation to IGPAD's expectation
that objecting physicians must provide patients with advice on "all
options," though the point has broader application.
III.4 Carter did not entirely strike down murder and
assisted suicide laws, and it left the law against counselling suicide
intact. Physicians can be charged for murder, manslaughter, or administering
a noxious substance if they fail to follow the Carter guidelines (Appendix
A2.6); if they
recommend suicide to patients they can be charged for counselling suicide (Appendix
A2.5).
Moreover, Carter did not touch laws on parties to offences, counselling
offences and conspiracy, which apply to the College's policy on "effective
referral." (Appendix A2.7)
III.5 In view of this, the College has no basis to
proceed against any physician who, having the opinion that a patient does
not fit one of the criteria specified by Carter, refuses to do
anything that would entail complicity in homicide or suicide, including
"effective referral." College policies and expectations are of no force and
effect to the extent that they are inconsistent with criminal prohibitions.
IV. IGPAD on respect, access, notification and
providing information
IV.1 Treat patients respectfully;
do not impede access
IV.1.1 The draft policy requires that physicians who
refuse to provide euthanasia or assisted suicide must treat patients
respectfully. The experience of the Project is that patients are normally
treated respectfully by objecting physicians, though refusal itself is
sometimes misunderstood or deliberately misconstrued as a disrespectful act.
IV.1.2 To 'impede access' is unacceptable, if it is
understood to mean some positive act of interference, such as discouraging
other health care providers from seeing the patient, or to some wrongful
act, like a refusal to release medical records that are the property of the
patient.
IV.1.3 On the other hand, physicians who simply refuse
to help patients find someone willing to kill them or help them commit
suicide are no more impeding patients than colleagues who refuse to help
patients find someone willing to provide virginity certificates or sell
organs.
IV.2 Notification of objections
IV.2.1 The expectation that physicians will personally
advise patient of their objections is entirely in keeping with the
intentions of objecting physicians made known to the Project.
IV.2.2 That objections are in all cases "due to
personal and not clinical reasons" is a mistaken assumption. Objecting
physicians may have both clinical and ethical/moral objections to providing
euthanasia and assisted suicide. Where both reasons exist, it is appropriate
to inform the patient of both. Indeed: to withhold clinical reasons would
seem to violate the requirements of informed medical decision-making.
IV.3 Providing information
IV.3.1 In the Project's experience, objecting
physicians are willing to provide information necessary to enable informed
medical decision making, so the expectation that they will provide
information on all treatment options, including euthanasia and assisted
suicide, should not be problematic. However, two qualifications are in
order.
IV.3.2 First: counselling (recommending) suicide
remains a criminal offence. Although it may be appropriate for physicians to
discuss assisted suicide in response to a patient's request or enquiries,
physicians cannot be expected to "offer the option" of assisted suicide
outside the context of a patient-led discussion. Further: even in that
arguably legal context, a physician may be reluctant to discuss the option
of assisted suicide if there is some reason to fear that the patient might
thus be prompted to commit suicide independently.
IV.3.3 Second: while information necessary to enable
informed medical decision-making must be provided, the point at which that
information ought to be provided must be left to the discretion of
individual physicians based on their knowledge of and interaction with their
patients.
IV.3.4 Physicians may believe that it would sometimes
be harmful or even abusive to gratuitously offer assisted suicide and
euthanasia as treatment options: the case of a patient just blinded or
paralysed by an industrial accident comes to mind.
IV.3.5 It may sometimes be at least insensitive to
offer assisted suicide and euthanasia as treatment options: for example,
upon a diagnosis of dementia, congestive heart failure, chronic obstructive
pulmonary disease, stroke, or major depressive disorder, all of which would
qualify as irremediable medical conditions under the terms of the Carter
ruling.
V. Freedom of conscience
V.1 IGPAD and "effective referral"
V.1.1 The draft policy requires physicians who refuse to kill patients or
help them commit suicide arrange for them to be killed or assisted in
suicide by a willing colleague by means of an "effective referral," as
defined in Professional Obligations and Human Rights.
V.1.2 The policy demands that the referral must be "timely," so that
patients will not experience "adverse clinical outcomes" before being
killed.
V.1.3 Since the College reasonably foresees that the number of
physicians willing to kill patients or help them commit suicide "may be
limited," it "expects physicians to make reasonable efforts" to an keep
up-to-date list of physicians willing to provide lethal injections and
prescriptions.
V.1.4 While this particular requirement applies to all physicians, the
College makes a point of imposing it in the section of the policy dealing
with conscientious objection. Moreover, the College imposes no obligation on
physicians willing to kill patients or help them commit suicide to identify
themselves in order to make the services more accessible.
V.1.5 The differential treatment of objecting and
non-objecting physicians by exclusively imposing an offensive requirement on
the former is strongly suggestive of an illicitly discriminatory attitude
toward objecting physicians.
V.2 "Effective referral" and criminal law
V.2.1 The College policy requiring "effective referral" is unacceptable
to many conscientious objectors because they believe that it makes them
unacceptably complicit in homicide and suicide. The validity of this
position can be verified by considering the effect of a policy of "effective
referral" absent the Carter decision.
V.2.2 But for the Carter decision, providing
an "effective referral" for euthanasia or assisted suicide would expose
physicians to prosecution as parties to murder or assisted suicide, or
conspiracy to commit murder or assisted suicide (Appendix
A2.6 - A2.7). It would, in addition, make
objecting physicians parties to wrongdoing according to their
moral/ethical/religious beliefs. Identical reasoning leads to identical
conclusions about moral and criminal responsibility.
V.2.3 Given the Carter decision, providing an
"effective referral" for
euthanasia and assisted suicide in accordance with the Carter criteria
remains serious wrongdoing from the perspective of many objecting physicians
and health care workers, but it is not a criminal offence because killing
patients or helping them commit suicide à la Carter is not a criminal
offence, not because the reasoning about criminal complicity has changed or
has been invalidated.
V.2.4 The Carter decision changed the law on murder and assisted
suicide by making exemptions in defined circumstances, but it did not change
the reasoning that underpins the law on parties to offences. The reasoning
that supports the law against aiding or abetting murder is exactly the same
reasoning used by physicians and health care providers who would refuse to
provide "effective referral" for euthanasia. It is, moreover, reasoning that
the College accepts and applies:
Under the Canadian Criminal Code, the performance of
FGC/M is considered to be aggravated assault; anyone who aids, abets or
counsels such assault is considered to be a party to the offense; . . .
Physicians must not perform any FGC/M procedures.
Further, physicians must not refer patients to any person for the
performance of FGC/M procedures.
The performance of, or referral for, FGC/M procedures
by a physician will be regarded by the College as professional misconduct.10
V.2.5 Since Carter does not invalidate the
reasoning leading to the conclusion that effective referral involves
criminal culpability, and the same reasoning leads to the conclusion that
effective referral involves moral culpability, nothing in Carter impugns the
conclusion of physicians who, applying this reasoning, refuse to provide
effective referrals because they refuse to be complicit in homicide and
suicide - or female genital cutting.
V.3 Legal vs. ethical/moral
evaluation of euthanasia, assisted suicide
V.3.1 Further, while Carter means that euthanasia and
assisted suicide in the circumstances defined by the Court are no longer
criminal offences, the ruling does not affect the validity of
moral/ethical/religious beliefs that it is gravely wrong to kill patients
or help them to commit suicide, even in those circumstances.
V.3.2 Notwithstanding the appellants' occasionally
extravagant claims,11 evidence at trial did not
demonstrate the ethical or moral acceptability of euthanasia or assisted
suicide.12 It was not an issue in the appeal,13
and the Supreme Court of Canada was unconcerned with the question.14 Thus, nothing in
Carter suggests that objecting physicians are mistaken in believing that
killing patients or helping them to commit suicide is gravely wrong, even in
the circumstances defined by the Court
(Appendix "B").
V.3.3 On the contrary, the Supreme Court of Canada
acknowledged continuing moral/ethical opposition to providing or
participating in euthanasia and assisted suicide,15 that
the need to accommodate objecting health care providers.16
V.4 The College position: "error has no rights"
V.4.1 The Canadian Charter of Rights and Freedoms
is not interpreted in a legal vacuum. It would be ludicrous to assert that
the reasoning that underpins the law on criminal complicity and culpability,
civil liability and the College policy that prohibits referral for female
genital cutting can be dismissed as legally irrelevant to the exercise and
protection of fundamental freedoms of conscience and religion. That would
arbitrarily disconnect the Charter from the corpus of Canadian law. The
College is thus precluded from justifying a demand for "effective referral"
on the grounds that it cannot be understood to involve morally significant
complicity in killing patients or helping them to commit suicide.
V.4.2 Moreover, the nature of what the College demands
- morally significant complicity in homicide and suicide - precludes
justification of the policy on the grounds that forcing objecting physicians
to arrange for the killing of patients by someone else is a reasonable
limitation of their fundamental freedoms that can be demonstrably justified
in a free and democratic society.
V.4.3 The only apparent basis for the College's demand
for effective referral is an assertion of its own authority to make binding
dogmatic decisions, together with the claim that error has no rights.
V.4.4 That is: College officials appear to have decided
what the Supreme Court of Canada did not decide: that euthanasia and
assisted suicide in circumstances defined by Carter are morally/ethically
acceptable, rather than simply legally permissible (Appendix A3). College
officials seem to consider the College justified in using force - the force
of law - to compel dissenting physicians to conform to their moral/ethical
views.
V.4.5 The requirement for "effective referral" in IGPAD
is a paradigmatic example of the authoritarian suppression of freedom of
conscience and religion by those in positions of power, cloaked by a
pretence of moral neutrality.
VI. Project response
VI.1 Previous submissions
VI.1.1 The Protection of Conscience Project's 2014
submission to the College concerning Physicians and the Human Rights
Code remains relevant:
. . .it is incoherent to include a duty to do what one
believes to be wrong in a code of ethics, the very purpose of which is to
encourage physicians to act ethically and avoid wrongdoing. . .
There is
a significant difference between preventing people from seeking perfection
by doing the good that they wish to do and destroying their integrity by
forcing them to do the evil that they abhor.
As a general rule, it is fundamentally unjust and
offensive to force people to support, facilitate or participate in what they
perceive to be wrongful acts; the more serious the wrongdoing, the graver
the injustice and offence. It is a policy fundamentally opposed to civic
friendship, which grounds and sustains political community and provides the
strongest motive for justice. It is inconsistent with the best traditions
and aspirations of liberal democracy. And it is dangerous, since it instills
attitudes more suited to totalitarian regimes than to the demands of
responsible freedom.
VI.1.2 In 2015, the Project warned against the
requirement for "effective referral" in Professional Obligations and
Human Rights.
A Council member who approves Professional
Obligations and Human Rights will thereby approve the principle that a
learned or privileged class, a profession or state institution can
legitimately compel people to do what they believe to be wrong - even
gravely wrong - even murder - and punish them if they refuse.
VI.1.3 These warnings were ignored. College Council uncritically
adopted the policy of "effective referral."
VI.1.4 As the Project predicted, College officials now
want the power to compel physicians to kill patients or arrange for them to
be killed - and punish them if they refuse. It is doubtful that any argument
is likely to prevail against this authoritarian mindset. When argument
fails, stories may help.
VI.2 Making freedom easy - or
impossible
VI.2.1 Dr. Sigmund Rascher attended the Luftwaffe's
Institute for Aviation Medicine in Munich for a medical course in May, 1941.
He wrote to Reichsfuehrer SS Heinrich Himmler, asking if "professional
criminals" or "feeble minded" persons could be made available as test
subjects for high altitude research.17 Himmler
agreed to provide "asocial individuals and criminals who deserve only to
die" to serve as test subjects,18 and
approved the use of Dachau for the project in July.19 He was concerned that physicians or
researchers from the Luftwaffe or Institute for Aviation Medicine would
attempt to take credit for the research, so he insisted that Rascher, an SS
physician with no expertise in aviation medicine,20
participate in all experiments involving human subjects.21
VI.2.2 Subsequently, Institute director Weltz met Dr. Siegfried Ruff,
Dr. Wolfgang Romberg and Dr. Rascher at the institute to discuss the planned
experiments. According to Ruff, the plan was to use concentration camp
inmates condemned to death, whose sentences would be commuted to life
imprisonment. He did not consider the experiments immoral, "especially in
war time."22 At least 200 experiments
were conducted by Rascher and Romberg in Dachau from March to May, 1942,23
during which 70 to 80 of the test subjects died.24
VI.2.3 Later, Rascher and his colleagues in Dachau
embarked on a series of "freezing experiments" that ultimately involved 300
inmates, 70-80 of whom died.25 It appears that the
experiments met with resistance, and Himmler asked Rascher to personally
report on the experiments to Luftwaffe Inspector General Erhard Milch in the
hope that "the difficulties, based mainly on religious objections . . .
could be eliminated."
The difficulties are still the same now as before. In
these "Christian medical circles" the standpoint is being taken that it goes
without saying that a young German aviator should be allowed to risk his
life but that the life of a criminal . . . is too sacred for this purpose
and one should not stain oneself with this guilt. . .It will take at least
ten years before we can get such narrow-mindedness out of our people.26
VI.2.4 With this summary of the "high altitude"
experiments in Dachau in mind, return now to Institute for Aviation Medicine
in late 1941 or early 1942, when Institute director Dr. Weltz approached Dr.
Wolfgang Lutz about assisting with the Dachau experiments. Dr. Lutz, the son
of an Austrian general practitioner,27 was an internal
medicine specialist, a Luftwaffe physician who had joined the Institute in
1940.28
VI.2.5 According to Dr. Lutz, he was asked by Weltz if he was willing
to participate in "high altitude research on human beings in the Dachau
concentration camp."29 Dr. Lutz said that he
understood that the research was intended to save the lives of soldiers, and
that the test subjects would be criminals who had been condemned to death,
but who had the opportunity to be pardoned if they participated in the
experiments.30
VI.2.6 Dr. Lutz declined, later testifying that he did not consider
himself "robust enough to conduct such experiments."31
When asked on cross-examination to explain what he meant, he said, "It is
even difficult to experiment upon a dog which looks at you and which seems
to have some kind of a soul; it is even difficult to do that with a dog."32,33
VI.2.7 What is of interest here is not that Lutz
declined to participate, nor his reasons, which did not amount to
conscientious objection. What is of interest is the approach taken by Dr.
Weltz.
Lutz: Weltz, in the way in which he
formulated the question, let it be seen that he expected that we would
refuse. He called us in and he asked us "Do you want to conduct these
experiments in Dachau?" And he continued to me: "Mr. Lutz, I do not believe
that you want to do that because I know you are rather religious." These
were his exact words, so that he neither forced us or urged us to agree.
Rather, on the contrary, he made refusal easy for us."34
VI.2.8 Nazi Germany: the director of a Luftwaffe medical institute,
suspecting (incorrectly, it seems) that the subordinate physician might have
religious scruples about the Dachau experiments supported by Heinrich
Himmler, "made refusal easy."
VI.2.9 Nazi Germany: no Universal Declaration of
Human Rights, no Charter of Rights and Freedoms, just the
Fuehrer Principle - yet, sensitive to moral scruples, Dr. Weltz "made
refusal easy."
VI.2.10 But physicians who don't want to be involved in
killing patients will not find refusal made easy in Ontario. On the
contrary: College officials want to make it impossible.
VI.2.11 This is not a reasonable limitation of
fundamental freedoms, but a reprehensible attack on them. It is a serious
violation of human dignity. And it is profoundly dangerous. If the state can
demand that citizens must be parties to killing other people and threaten to
punish them or discriminate against them if they refuse, what can it not
demand?
VII. Alternative acceptable
policies
VII.1 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 from physicians who receive requests for
euthanasia or assisted suicide.35
VII.2 Subject to the Project's recommendations (which
largely mirror those in this submission),36 the
Draft Statement on Physician Assisted Dying (October, 2015) from the
College of Physicians and Surgeons of Manitoba37 is
generally satisfactory.
VII.3 In Appendix "C"
the Project offers an example of a freedom of conscience policy that can be
applied to all services or procedures, including euthanasia and assisted
suicide.
VIII. Conclusion
VIII.1 From the perspective of freedom of conscience,
virtually all of what is proposed in IGPAD is satisfactory, requiring only
clarifications to avoid misunderstanding and appropriate warnings about the
continuing effects of criminal law.
VIII.2 The single element of IGPAD that is completely
unacceptable is the demand for "effective referral." This and previous
submissions from the Project have addressed this. The examples of
alternative acceptable policies demonstrate that access to assisted suicide
and euthanasia can be ensured without suppressing freedom of conscience and
religion.
VIII.3 As a rule of thumb when developing policies
related to physician involvement , many objecting physicians will refuse to
do anything that, but for Carter, would make them parties to murder or assisted suicide,
or conspiracy to commit murder or assisted suicide.
Notes
1. 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
2. Moore E.
"Doctor is hoping feds will guide on assisted suicide legislation."
Edson Leader, 12 February, 2015. (Accessed 2015-07-16).
3. Rich, P.
"Physician perspective on end-of-life issues fully aired." Canadian
Medical Association, 19 August, 2014 (Accessed 2015-06-22).
4. Ubelacker S.
"Medical professionals try to answer burning questions on doctor-assisted
death." Associated Press, 13 February, 2015 (Accessed
2015-07-04).
5. Kirkey S.
"How far should a doctor go? MDs say they 'need clarity’ on Supreme Court’s
assisted suicide ruling." National Post, 23 February, 2015
(Accessed 2015-07-04).
6. "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).,
7. Consultations & hearings on Quebec Bill
52, College of Pharmacists of Quebec:
Dianne Lamarre, Manon
Lambert.Tuesday 17 September 2013 - Vol. 43 no. 34 (Hereinafter
"Consulations")
T#49,
T#58.
8. Consultations,
T#33.
9. Consultations,
T#76,
T#87,
T#88.
10. College of Physicians and Surgeons of
Ontario,
Policy Statement #2-11, Female Genital Cutting (Mutilation) (Updated
September, 2011) (Accessed 2016-01-05)
11. In his oral submission, Joseph Arvay
referred to the ethical distinction between euthanasia and withdrawing
or withholding treatment, describing it as "the Rubicon." "We asked the
trial judge to cross that Rubicon. And she did, based on evidence of
ethicists and philosophers and physicians and practitioners, and she
said there is no ethical distinction . . .". Supreme Court of Canada,
Webcast of the Hearing on 2014-10-15, 35591, Lee Carter, et al. v.
Attorney General of Canada, et al (British Columbia) (Civil) (By
Leave).
Joseph Arvay, Oral Submission, 101:25 | 491:20 to 102:01 |
491:20 (Accessed 2015-06-28).
12. The trajectory of the case was
determined by the trial judge’s belief that suicide can be a rational
and moral/ethical act, which led her to conclude that assisted suicide
and euthanasia could be ethical. These moral/ethical conclusions became
the assumptions underlying the judge’s explanation of the purpose of the
law, but they originated in the judge’s personal views, not
derived from the evidence. See Murphy S. "Legalizing therapeutic
homicide and assisted suicide: A tour of Carter v. Canada,"
Part VI.1. Protection of Conscience Project.
13. Carter v. Canada (Attorney General),
2015 SCC 5, para. 40. (Hereinafter "Carter") Accessed
2015-06-27.
14. Carter, para. 1-4
15.
Carter, para. 130-131
16. Carter, para. 132
17.
Letter from Dr. Sigmund Rascher to Reichsfuehrer SS, 15 May, 1941.
(Letter to Heinrich Himmler concerning the high altitude experiments.
Harvard Law School Library Item No. 30) Accessed 2016-01-07.
18.
Letter from Heinrich Himmler to Erhard Milch, November, 1942.
(Letter to Erhard Milch concerning the high altitude and freezing
experiments. Harvard Law School Library Item No. 65). Accessed
2016-01-07.
19.
Brandt REH, Affidavit. (Affidavit concerning the high altitude
experiments at Dachau. Harvard Law School Library Item No. 29). Accessed
2016-01-07
20. Ebbinghaus A. "Introduction to the Trial's
History." In The Nuremberg Medical Trial 1946/47: Transcripts, Material
of the Prosecution and Defense, Related Documents. Guide to the Microfiche
Edition. Compiled by Johannes Elzschig and Michael Walter, (Hereinafter
"Ebbinghaus"), p. 58.
21.
Brandt REH, Affidavit. (Affidavit concerning the high altitude
experiments at Dachau. Harvard Law School Library Item No. 29). Accessed
2016-01-07.
22.
Ruff S. Affidavit, 18 October, 1946. (Affidavits concerning the high
altitude experiments at Dachau. Harvard Law School Library Item No. 28).
Accessed 2016-01-07.
23.
Rascher S. Secret Report, 11 May, 1942 (Munich) (Secret Report. Harvard
Law School Library Item No. 48). Accessed 2016-01-07.
24. Ebbinghaus, p. 58, citing
Transcript p. 1698.
25. Ebbinghaus, p. 15.
26.
Letter from Heinrich Himmler to Erhard Milch, November, 1942. (Letter to
Erhard Milch concerning the high altitude and freezing experiments. Harvard
Law School Library Item No. 65). Accessed 2016-01-07.
27. Waters V.
"Wolfgang Lutz Obituary."
The Guardian, 30 November, 2010. ()
Accessed 2016-01-08.
28. Official Transcript of the American
Military Tribunal in the matter of the United States of America, against
Karl Brandt, et al., defendants, sitting at Nurnberg, Germany, on 12
December 1946, 0930-1630, Justice Beals, presiding. (Hereinafter
"Transcript")
p. 267-268.
Accessed 2016-02-07.
29. Transcript,
p. 268.
30. Transcript,
p. 277,
294.
31. Transcript,
p. 269-270.
32. It does not appear that he actually
explained this to Weltz. When asked in cross-examination if Weltz knew this,
he said only that Weltz knew that he had rejected involvement.
Transcript,
p. 302.
33. Weltz was charged with war crimes and crimes
against humanity. Testifying in his own defence, said that he had discussed
the Dachau experiments "rhetorically" with Lutz but was surprised to learn
that he did not think himself "robust" enough to participate. Neumann A.
"Wolfgang Lutz: Die höhenphysiologischen Experimente im Konzentrationslager
Dachau 1942 und deren Auswirkungen auf seine Biographie" ("Wolfgang
Lutz: The altitude physiological experiments in the Dachau concentration
camp in 1942 and their impact on his biography.") Inaugural Dissertation for
Earning a Doctorate in Medicine of the Faculty of Medicine at the University
of Giessen, 2013. Accessed 2016-01-07.
34. Transcript,
p. 282.
35. College of Family Physicians of Canada,
A Guide for Reflection on Ethical Issues Concerning Assisted Suicide and
Voluntary Euthanasia (September, 2015) Accessed 2015-10-30.
36. Protection of Conscience Project,
"Submission to the College of Physicians and Surgeons of Manitoba Re: Draft
Statement on Physician Assisted Dying (15 October, 2015)." (10 November,
2015).
37. College of Physicians and Surgeons of
Manitoba,
Draft Statement on Physician Assisted Dying (October, 2015).
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