"Can't take the heat, get out of the kitchen"

Law professor tells senators how he deals with conscientious objectors

Winnipeg, Manitoba, Canada (1995-2000)

Sean Murphy*

In November, 1999, a sub-committee of the Canadian Senate convened in Ottawa to review the Senate report, "Of Life and Death", published in 1995. The report was the product of hearings into a number of issues, including euthanasia, assisted suicide, the withholding and withdrawing of life-support treatment, palliative care, advance directives, and sedation practices.

The new sub-committee was given the task of submitting an update to "Of Life and Death" in June of 2000, the fifth anniversary of its publication. The terms of reference specified that the sub-committee's review of the report should focus on four areas :

• anything that was a unanimous recommendation;
• progress on the implementation of the unanimous recommendations;
• developments in Canada respecting the issues dealt with;
• developments in foreign jurisdictions respecting the issues dealt with.

In February, 2000, a law professor from western Canada addressed the sub-committee. He told the Senators about an incident that occurred during a seminar at the Health Sciences Centre in Winnipeg. The seminar, a role playing exercise, had been organized by a professor of medicine. The relevant portion the testimony has been extracted from the transcript of the sub-committee hearing. It is consistent with the example of coercion cited by Canadian Member of Parliament Maurice Vellacott when he introduced his protection of conscience bill in the Canadian House of Commons (See Student pressured to participate in abortion).

It is noteworthy that this story does not appear to have elicited so much as a raised eyebrow from the Senators. On the contrary: Senator Pepin adverted to what she seems to consider a troublesome 'lobby' of medical students who are reluctant to participate in certain procedures. She even reminisced about difficulty encountered in introducing birth control when working in a hospital years before; it was necessary to employ "persuasion" to get nurses to cooperate.

It is not surprising that Senator Pepin opposed the protection of conscience legislation presented in the Senate by Senator Haidasz.

Proceedings of the Subcommittee to Update "Of Life and Death"

Ottawa, Monday, February 14, 2000

The Subcommittee to Update "Of Life and Death" of the Standing Senate Committee on Social Affairs, Science and Technology met this day at 2:01 p.m. to examine the developments since the tabling in June 1995 of the final report of the Special Senate Committee on Euthanasia and Assisted Suicide entitled, "Of Life and Death".

Senator Sharon Carstairs (Chairman) in the Chair.

Professor Barney Sneiderman, Faculty of Law, University of Manitoba: The Nancy B. case is a decision by a trial court judge, yet the case has had considerable impact. The people who have had to get that message are the physicians. The message they need to get is that a mentally competent patient has the right to refuse treatment, even if, in the physician's considered judgment, the treatment will restore a quality of life that the physician regards as tolerable.

I am sometimes involved in discussions with physicians and with medical students. They all know about this case. I can recall attending a seminar with medical residents, where a nurse was brought in on a gurney, playing the role of Nancy B., and each of the residents would have to go up to her and engage in a conversation.

"Nancy B." would begin the conversation by saying it was time to remove the respirator and to let her die, and there would be a discussion between the patient and the medical resident. One of the medical residents was arguing with "Nancy B." and telling her that she could not abide by her request. She explained that, out of her religious convictions, it was simply impossible for her to grant the patient's request.

I then commented. I said to her, "There was a sign on Harry Truman's desk: If you can't take the heat, get out of the kitchen. You are going to be a physician and your religious principles are a matter between you and your God. If you feel you cannot comply with her request, then you are obliged to transfer her to another physician, but you have to understand that that is her legal entitlement."

She did not respond to me. She looked rather upset with me. Then a number of her fellow residents injected comments supporting what I had said. They said, "Look, you heard her. She said disconnect the respirator, and she is mentally competent. You can talk to her, you can certainly attempt to persuade her otherwise, you cannot coerce her, but the bottom line is that it is her decision."

This decision by a trial judge has had a considerable impact.

[Translation]
Senator Pépin: I was a nurse at a time when we had to refuse to give morphine to a patient, even if he or she was in a great deal of pain, if we knew that, given the patient's weak state, the morphine injection could be fatal. Later on, the legislation as well as the Catholic position changed, so that nurses were allowed to give morphine to such patients. . . .

Senator Pépin: The other issue concerned medical students. You told us about the medical student who was refusing treatment based on her religious beliefs.

Mr. Sneiderman: She was a resident.

Senator Pépin: She was a resident. Currently, medical students and nurses are lobbying to be transferred from one department to another one because, for example, they may be working in a department where they must assist in abortions and they can not do so. I understand the lobby is quite strong.

I have not been involved on a hospital floor for many years, but I do remember the impact of the discussion surrounding birth control and the persuasion it took before nurses would cooperate. Of course, the impact of that is not comparable to what we are discussing now. What trends are young medical students adopting?

Mr. Sneiderman: I really cannot say, but I can tell you something about medical students in Manitoba.

Senator Pépin: Are they more inclined to accept what the patient says and to help the patient?

Mr. Sneiderman: I think that the new generations of medical students and physicians are more respectful of patients' rights than their predecessors. There may be two reasons for that: First, a recognition that the principle of patient autonomy means something, and second, the fear of being sued for disregarding the patient's instructions. That may be even more effective.

Senator Pépin: I forgot about that.

Senator Corbin: Out of curiosity, in the conscience case to which you alluded where the nurse refused to comply with the patient's wishes, did that event take place in a religious environment? Was this a public hospital? Was the patient of the same faith?

Mr. Sneiderman: This was in the context of a seminar organized by one of the professors of medicine who has expertise in medical ethics, and it was an exercise in role playing. This was at the Health Sciences Centre in Winnipeg. The religious convictions of the patient were never discussed. The medical resident referred to her religious convictions but did not specify what they were. She did say something about the sanctity of life and that she simply could not abide the decision by a patient to die. She said it might be different if the patient were terminally ill and dying, but this patient was not. That is all she said.

Senator Corbin: It was an ethics game, really?

Mr. Sneiderman: I have taken part in a few of these scenarios, and it is interesting how people really get caught up in it. It is not play acting to them; it becomes real.

Senator Corbin: We have such thing as war games. That is an analogy.

Mr. Sneiderman: Yes. . .