Submission to the College of Physicians and Surgeons of Nova
Scotia
Re: Standard of Practice: Physician Assisted Death
6 February, 2016
Full Text
Abstract
The Project considers the proposed standard of practice satisfactory with
respect to the accommodation of physician freedom of conscience and respect
for the moral integrity of physicians. Neither direct nor indirect
participation in euthanasia and assisted suicide is required.
The Project offers simple and uncontroversial recommendations to avoid
conflicts of conscience
associated with failed assisted suicide and euthanasia attempts and urgent
situations.
The standard does not adequately address the continuing effects
of criminal law. The College has no basis to proceed against physicians who,
having the opinion that a patient does not fit one of the criteria specified
by Carter, refuse to do anything that would entail complicity in
homicide or suicide. College policies and expectations are of no force and
effect to the extent that they are inconsistent with criminal prohibitions.
While the standard is satisfactory with respect to freedom of conscience,
the fundamental freedoms of physicians in Nova Scotia will remain at risk
as long as the College Registrar and others persist in the attitude and
intentions demonstrated in his presentation to the Special Joint Committee
on Physician Assisted Dying.
TABLE OF CONTENTS
II.1 Failed assisted suicide and
euthanasia
II.2 Urgent situations
II.3 Project recommendations
IV.1 The Registrar
before the Special Joint Committee on Physician Assisted Dying
IV.2 The Registrar, the Conscience Research Group, and
"effective referral"
IV.3 The
Registrar's intentions
IV.4 The
Registrar's complaint
IV.5 An ethic
of servitude, not service
A1.
Carter criteria for euthanasia and physician assisted suicide
A2.
Carter and the criminal law
A3.
Carter and freedom of conscience and religion
B1. Attempts
to coerce physicians: abortion
B2. Plans to
coerce physicians: assisted suicide and euthanasia
B3. Plans to coerce
physicians: the CRG Model Policy
B4. CRG convenes
meeting with College representatives
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
Standard of Practice: Physician Assisted
Death (SPPAD) is outside the
scope of this submission.
I.2 From the perspective of freedom of conscience, the Project
considers SPPAD satisfactory. In particular, accommodation of physician
freedom of conscience and respect for the moral integrity of physicians is
reflected by the fact that effective referral is recommended, but not
required. This is consistent with the position of the Canadian Medical
Association in its recent submission to the College of Physicians and
Surgeons of Ontario.1
I.3 The first issue raised in this submission concerns
failed assisted suicide and euthanasia attempts and urgent situations, which
can cause conflicts that can adversely affect patients, families and
objecting health care providers. 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 Some remarks by the Registrar of the College made in his
appearance before the Special Joint Committee on Physician Assisted Dying
are addressed in Part IV.
II. Avoiding foreseeable conflicts
II.1 Failed assisted suicide and
euthanasia
II.1.1 Euthanasia and assisted suicide
drugs do not always cause death as expected.2 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%).3,4,5,6
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 It is often assumed that, since euthanasia and assisted suicide
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. Given the number of Nova
Scotians working outside the province, this is likely to occur at some
point. 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. SPPAD and criminal law
III.1 The draft standard states:
The effect of the Carter decision is that
after February 6, 2016, it will be a legal for a physician to assist an
adult patient to die if specified criteria have been met. (Introduction,
para. 1)
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 SPPAD'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 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. Remarks of the Registrar
IV.1 The Registrar before the Special Joint Committee
on Physician Assisted Dying
IV.1.1 In his appearance before the Special Joint
Committee on Physician Assisted Dying, on 2 February, 2016, Registrar Dr.
Douglas
Grant made the following remarks:
The next question is perhaps the most contentious, and that is what are
the responsibilities of professionals or physicians conflicted by conscience, and by whom
should these responsibilities be mandated. We have a history to confront. I
refer to our country's experience with abortion and access to contraception
where conscientiously objecting physicians faced and continue to face the
same question. On many occasions, whether through silence or obfuscation,
physicians chose and continue to choose not to assist women to access
a legal and medical service that runs counter to their personal beliefs. I
respectfully disagree with the submission to this committee of Dr. Jeffrey Blackmer of the CMA. As a regulator, I submit it is naive to think that access to
physician assisted death will not be an issue whether for reasons of
conscience or geography. (Emphasis added)
The provincial colleges are not in unanimous agreement on the question of
conscience and whereas it's unfortunate that there is not a unified pan-Canadian
approach, this alone should not invite federal legislation. The professional
and ethical obligations of a physician in this difficult situation are
clearly within the objects of provincial legislation. The colleges, through
FMRAC, should work toward consistency, both to establish the physician's
obligations and to establish the disciplinary consequences that might
flow from a breach of those obligations.10
IV.2 The Registrar, the Conscience Research Group, and
"effective referral"
IV.2.1 These comments are consistent with the agenda of
the Conscience Research Group (CRG). The Group includes euthanasia/assisted
suicide and abortion activists who are determined to force physicians who
are unwilling to provide abortions, kill patients or help them commit
suicide to find a colleague willing to do so. Having failed to convince the
Canadian Medical Association to adopt such a policy, they decided to
convince provincial regulatory authorities to impose it. (Appendix
"B")
IV.2.2 Dr. Grant became involved with the Conscience
Research Group in 2013, when he participated in a meeting called to discuss
a policy intended to suppress physician freedom of conscience and religion.
Representatives from Colleges of Physicians and Surgeons in Saskatchewan,
Ontario and Quebec also attended (Appendix
BIV.).
IV.2.3 The Collège des Médecins du Québec was, at that
time, the only regulator that required objecting physicians to refer
patients for morally contested procedures. The Ontario College
subsequently adopted the CRG inspired policy of "effective referral" for
morally contested procedures other than euthanasia and assisted suicide,
which almost immediately resulted in a constitutional challenge.11
Predictably, it recently extended the policy of "effective referral" to
euthanasia and assisted suicide.12 Saskatchewan attempted but failed to
impose a virtual clone of the CRG policy.13 The policy ultimately
adopted there may yet lead to a lawsuit against the Saskatchewan College.14
IV.3 The Registrar's intentions
IV.3.1 It is clear from the history of the Conscience Research group
and from the Registrar's statement to the Special Joint Committee that
persistent lobbying to force objecting physicians to facilitate abortion and
contraception by referral have been an ongoing dress rehearsal for the power
play now being acted out.
IV.3.2 The Registrar's remarks about the lack of unanimity
among Colleges of Physicians indicate that he will continue to try to impose
the repressive policy of the Conscience Research Group. This will have
practical consequences in Nova Scotia.
IV.3.3 When appearing before the Special Joint
Committee, Dr. Jeff Blackmer of the Canadian Medical Association said that
he was already hearing from physicians planning to move from one province to
another in order to be able to practise in accordance with their
convictions.15 This suggests that physicians will leave Nova Scotia if
Dr. Grant is ultimately successful in imposing his views.
IV.3.4 The Registrar appears to recognize this.
The development of the "unified pan-Canadian approach" he advocates is
clearly intended to impose a repressive regime across the country, so that
objecting physicians unwilling to conform will have to leave medical
practice or leave the country, and only those willing to do what they
believe to be gravely wrong will be able to become physicians anywhere in
Canada.
IV.4 The Registrar's complaint
IV.4.1 This is apparent from the Registrar's complaint
to the committee. He did not complain that objecting physicians were
actually obstructing patients or preventing them from obtaining morally
contested services, nor did he offer any evidence to that effect (which, as
Registrar, he could have produced, if it existed). Instead, he
complained that objecting physicians "chose and continue to choose not to
assist" patients.
IV.4.2 The reason for this is that objecting physicians
are concerned to maintain their own personal and professional integrity.
They cannot control the choices their patients make, nor prevent patients from
acting upon those choices, but they may refuse to help patients do what they
believe to be wrong. For example, they may refuse to help find someone
willing to kill a patient or assist with suicide.
IV.4.3 In contrast, the Registrar intends to actively
prevent objecting physicians from making or acting upon what he considers to
be unacceptable choices. Those fond of labels might say that he is not
"pro-choice," or that he is an "anti-choice." In any case, by his own
account, he is less respectful of the freedom of objecting physicians than
they are of the freedom of their patients.
IV.5 An ethic of
servitude, not service
IV.5.1 The Registrar asks what responsiblities
physicians have when they ecounter conflicts of conscience. His answer
is implied in his presentation to the Committee and by his collaboration
with the Conscience Research Group. He expects them to do what they
are told to do by the patient, or by the College, or by the state.
He expects them to 'follow orders', as it were, even if they believe doing
so is wrong - even gravely wrong - even if it means arranging for someone to
be killed.
IV.5.2 The Registrar has accepted the argument of the
Conscience Research Group that physicians have an ethical obligation to do
what they believe to be unethical; that the essence of "professionalism" is
a willingness to do what one believes to be wrong. This is
incoherent. Moreover, his reference to "disciplinary consequences"
makes clear his intention to punish those who refuse to do what they believe
to be wrong, including those who refuse to be parties to homicide and
suicide. This is dangerous.
IV.5.3 The best traditions of the practice of medicine,
like the best traditions of liberal democracy, are associated with an ethic
of service. The Registrar and the Conscience Research Group propose to
replace this with an ethic of servitude. This is unacceptable.
V. Conclusion
V.1 The Project considers SPPAD satisfactory with
respect to the accommodation of physician freedom of conscience and respect
for the moral integrity of physicians. However, it should include reference
to continuing effects of criminal law, and it would be prudent to address
failed assisted suicide/euthanasia attempts and urgent situations.
V.2 The fundamental freedoms of physicians in Nova
Scotia will remain at risk as long as the College Registrar and others
persist in the attitude and intentions demonstrated in his presentation to
the Special Joint Committee on Physician Assisted Dying.
Notes
1. Canadian Medical Association,
Submission to the
College of Physicians and Surgeons of Ontario - Consultation on CPSO Interim
Guidance on Physician-Assisted Death (13 January, 2016) (Accessed
2016-02-02).
2. 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
3. Moore E.
"Doctor is hoping feds will guide on assisted suicide legislation."
Edson Leader, 12 February, 2015. (Accessed 2015-07-16).
4. Rich, P.
"Physician perspective on end-of-life issues fully aired." Canadian
Medical Association, 19 August, 2014 (Accessed 2015-06-22).
5. Ubelacker S.
"Medical professionals try to answer burning questions on doctor-assisted
death." Associated Press, 13 February, 2015 (Accessed
2015-07-04).
6. 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).
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. Special Joint Committee on Physician
Assisted Dying (PDAM), Meeting No. 10 (2 February, 2016).
Webcast: Dr. Douglas Grant (19:30:08 to 19:31:50) (Accessed 2016-02-05)
11. Ontario Superior Court of Justice, Between the
Christian Medical and Dental Society of Canada et al and College of
Physicians and Surgeons of Ontario,
Notice of
Application, 20 March, 2015. Court File 15-63717.
12. College of Physicians and Surgeons of Ontario,
Interim Guidance on Physician Assisted Death (January, 2016)
(Accessed 2016-02-05)
13. Protection of Conscience Project,
Submission to the College of Physicians and
Surgeons of Saskatchewan
Re: Conscientious Refusal (5 March,
2015)
14. Christian Medical and Dental Society,
"Sask MDs, doctors' groups critical of CPSS decision."
News
Release, 19 June, 2015 (Accessed 2016-02-05)
15. Dr. Blackmer: I have phone calls every day
from people saying, "I live in this province. I think I'm going to
move to this province because I like their rules better and they coincide
better with my own moral views." Special Joint Committee on Physician
Assisted Dying,
Evidence, Wednesday, 27 January, 2016. (Accessed 2016-02-05)
| Next