Submission to Canadian Regulatory Authorities and Ministers of Health

Re: Health Canada's Model Practice Standard for Medical Assistance in Dying (MAID) (March, 2023)

17 July, 2023

Full Text

EXECUTIVE SUMMARY

Preliminary observations

The Canadian federal department of health has issued a Model Practice Standard for euthanasia and assisted suicide (EAS) (commonly referred to in Canada as "Medical Assistance in Dying" or "MAID"). From March, 2024 it will apply to the provision of EAS for mental disorders alone. For constitutional reasons, the Standard has no legal effect except to the extent that provincial professional regulators adopt its provisions. However, it articulates state expectations in relation to lawfully killing people that are intended to override the moral/ethical convictions of individuals.

The ruling of the Supreme Court of Canada ordering legalization of EAS in defined circumstances does not undermine the legitimacy and reasonable plausibility of moral/ethical/religious beliefs that it is gravely wrong and/or contrary to good medical practice to deliberately kill people or assist in suicide — even if the law approves. Acting upon this belief should not be a reason for the state to penalize practitioners or exclude someone from health care practice. However, adopting the Standard would have that effect.

Killing people continues to be a deeply controversial subject, but the Standard attempts to erase the controversy by an authoritarian exercise of moral partisanship. It assumes the default position that practitioners have a moral duty to facilitate the killing of their patients, and it enlists the power of the state to impose this contested premise systemically. Regulators are thus encouraged to suppress unceded moral/ethical positions — and freedom of conscience — just as European colonists applied a false and enlarged notion of terra nullius to take control of unceded indigenous lands. That is the focus of this submission.

Involvement and participation

The Standard suggests that involvement with EAS is inescapable but participation is optional. The concepts of involvement and participation are critical in ethical/moral deliberation, becoming acute in deliberation about involvement or participation in killing people. Nonetheless, the terms are undefined in the Standard, and the attributed meanings are not clearly distinguished in the text. Further, kinds of involvement the Standard requires — notably effective referral and effective transfer of care — may be reasonably classed as morally charged participation or entail serious moral/ethical responsibility that practitioners may find unacceptable. While the Standard affirms the relevance of ethical norms espoused by the Canadian Medical Association (CMA) and other professional groups, its demand for effective referral contradicts the longstanding position of the CMA and its current policy on EAS.

Unaddressed legal issues

The Standard acknowledges that the exercise of freedom of conscience by practitioners produces a range of responses, some willing to provide EAS in some circumstances but not in others. However, it does not address legal criticism to the effect that this amounts to discrimination on the basis of disability, nor the accompanying claim that practitioners cannot escape the obligation to personally provide EAS by making an effective referral: that referral would itself be evidence of unlawful discrimination.

Legal and ethical goalposts have been shifting steadily to expand access to EAS in Canada. The likelihood of conflicts of conscience increases as exemptions allowing EAS increase. However, the Standard does not recognize this, and, moreover, is unduly restrictive in its explanation of current exemption criteria.

Practitioners and patients

Irremediability of a medical condition is a key criterion established by the Supreme Court of Canada for exempting practitioners from prosecution for providing EAS. Some argue that practitioners must determine irremediability; others insist that patients can determine irremediabilty by refusing treatment. The Standard maintains that patients cannot compel practitioners to provide EAS by refusing potentially effective interventions, but fails to provide a rationale supporting this position. It asserts that determination of irremediability should be negotiated by practitioners and patients, but dodges the problem of what should be done if they disagree.

By revisiting the Carter decision this submission provides the missing rationale and addresses the problem of practitioner/patient disagreement. In sum, practitioners are responsible for determining irremediability, and their determination cannot be overridden by patient refusal to accept potentially efficacious treatments. Patients in these cases may continue to look for a practitioner who may find they meet the exemption criteria, but cannot expect assistance from practitioners who believe that they do not. Further, practitioners who believe that a patient does not meet the legal exemption criteria are constrained from doing anything to further a request for it. Regulators have no basis to proceed against them, and would seem to commit the offence of counselling were they to advise practitioners or attempt to persuade or coerce them to provide effective referrals or effective transfers of care.

Compulsory assistance

The Standard states that physicians and nurse practitioners must not be compelled to “prescribe or administer substances” for the purpose of EAS, but it does not prevent them and other health care workers from being compelled to assist in providing EAS. Demands for compulsory assistance are most likely to arise in situations characterized as emergencies. Requests for active assistance in providing EAS in such situations are now treated as emergencies by mainstream actors in Canada’s public healthcare system. Hence, the Standard’s silence on this point is troubling.

It is also revealing. If one believes that the state must not compel unwilling individuals to assist in lawfully killing other people, nor allow such compulsion, one would expect the Standard to make clear that no one can compelled under any circumstances to assist in providing EAS. The absence of such a statement indicates that Canada’s national government supports coercion of unwilling health care workers to force them to assist in killing their patients. Provincial governments and professional regulators should clearly reject this position by prohibiting coerced participation in EAS.

Cooperation vs. collaboration

The logic underlying the law on criminal complicity is applied to moral complicity by practitioners who refuse to collaborate in EAS. They refuse to take positive action that establishes a causal connection to or is supportive of killing their patients. They reasonably hold that such action would make them complicit in killing their patients, which they hold to be gravely wrong and/or contrary to good medical practice. On the other hand, they are generally willing to cooperate with patients by providing information for informed medical decision-making, by enabling them to connect with other health care practitioners and by continuing to provide treatment and care unrelated to EAS.

This willingness to cooperate (but not to collaborate) — if understood and honoured — makes it possible to accommodate practitioners and patients. Unfortunately, the Standard’s authoritarian moral partisanship precludes admission that practitioners can be legitimately concerned about complicity in killing other people. Hence, the Standard erroneously suggests that effective referral and effective transfer of care (as defined) are ethically/morally interchangeable, and — more important — it fails to recognize the possibility of a compromise in an alternative that it suggests but does not develop.

Recognizing an alternative

The undeveloped alternative suggested by the Standard is “taking positive action” to connect a patient to an “agency, program, office responsible patient navigation” that can connect the patient to EAS providers. Subject to important caveats, this may prove to be a generally satisfactory method of accommodating objecting practitioners. In order to avoid confusion and mistrust, it should not be identified or described as “effective referral,” which has accumulated too much baggage.

This submission presents the alternative in a form clearly distinguished by name and modified to enable accommodation likely to be generally satisfactory to objecting practitioners. It identifies unacceptable arrangements (Provincial-Territorial Expert Advisory Group EAS delivery system; MAiD Care Coordination Services) that would push objecting practitioners beyond cooperation to collaboration. It distinguishes these from acceptable arrangements (the CMA model; Alberta Health Link; Health Connect Ontario).

Suggesting EAS

The Standard trades on principles of informed consent to force practitioners to suggest EAS to patients who have expressed no interest in it simply because the patient might be “eligible” for it. This is most evident in the requirement that practitioners explore patients’ views about euthanasia and assisted suicide in order to determine whether or not to present them as potential treatment options. The exploration itself would effectively present the procedures as options, just as a practitioner’s exploration of a patient’s views about having a sexual relationship with him could hardly fail to be understood as the presentation of an option.

Practitioners cannot be expected to characterize what they believe to be an unethical/immoral practice as a normal or acceptable treatment, especially since they often judge practices to be unethical/immoral because they consider them actually or potentially harmful. On the other hand, they are required and willing to provide information necessary to enable patients to make informed medical decisions, including information about procedures or services they refuse to provide or recommend.