Physician Assisted Dying and Protection of Conscience Rights in Canada

by Nate Cloutier

woman in water floating

In Canada, one of the foundational provisions made under the Charter of Rights and Freedoms is the fundamental freedom of conscience and religion. An integral component of Canada’s national makeup is the commitment to tolerance and diversity. Perhaps by necessity, this tends to conflict with an absolutist ethical framework, especially when there is a degree of consensus that a particular action, like allowing suffering patients to die on their terms, for example, is a good one. As a result of dramatic shifts in public opinion coupled with bold legislative changes in health care, the medical landscape in this country has become so complex that it is no longer clear how, or if, freedom of conscience and religion can be totally preserved for everyone all the time. While I do not aim to completely and perfectly resolve the many questions pertaining to medically assistance in dying (MAID), I wish to examine some relatively recent legal developments in this conversation from the angle of ethics and morality.

Dr. Mark Wicclair summarizes the issue this way, “On the one hand, patients seek goods and services to meet their health care needs and interests. On the other hand, health care professionals want to maintain their moral integrity, and doing so can prompt them to refuse to provide a good or service that will satisfy a patient’s health needs and/or interests”1

The lack of alignment among Canadians in the conversation on the conscience rights of physicians who  object to morally questionable procedures, such as assisted dying or abortion, is primarily to do with the necessity and nature of physician complicity. We are now well past the honeymoon phase of the national move to legalize assisted suicide, taking place on June 17, 2016 when Bill C-14 was enacted, and yet the ethical matters of euthanasia and assisted dying and a so-called rational suicide is far from settled in the aging Canadian mind. Questions abound and one of the most critical problems society needs to resolve is what to do concerning physicians who object to the practice of assisting in a patient’s death. 

Does a patient’s supposed right to die obligate his or her physician to act in accordance with their request regardless of the physician’s independent judgment? Do conscience rights exist in a professional setting? Can personal ethics be divorced from medical practice? Can compromise be truly achieved? Does physician referral effectively mean ‘complicity’ in the act? Is physician complicity a necessary evil?

Note that while this is an issue relevant, for example, in the abortion conversation (I think of the still-fresh #repealthe8th decision in Ireland) and wartime scenarios, I am primarily interested in the debate’s unique quality within the context of assisted dying in Canada, my home country. My claim in this piece is that requiring physicians to give an effective patient referral to another willing physician in the case where they object to assisted dying on moral grounds constitutes a fracture to the individual physician’s conscience rights and injury to the person themselves which is immoral and unnecessary.

I will examine what Bill C-14 says with regards to physician’s conscience rights and effective referrals. Then, I will give an overview of three solutions to the entanglement of conscientious objection and patients’ rights. I will finally offer a response to the issue of complicity and mandatory referrals which I believe to infringe on rightfully owed protection for objectors within the medical profession.

Bill C-14 and Some Definitions

When Canada’s historic laws prohibiting the practice of euthanasia and assisted dying went up in smoke as the outcome of Carter v. Canada, in February, 2015, it was the culmination of decades of shifting sympathies and popular opinion across the nation. Arguably the first significant challenge was the Sue Rodriguez case in the early nineties which ultimately failed to change the legislation on the matter.2 The Kay Carter case, starting about twenty years later and had required nearly four years of prior struggle between the British Columbia Civil Liberties Association and Canada’s Supreme Court, would ultimately achieve the victory sought by Rodriguez.3 A year after the ban was stricken, Canada finally enacted its law on assisted dying which we call Bill C-14.4 

The bill defines what is legally permitted:

241.‍2 (1) A person may receive medical assistance in dying only if they meet all of the following criteria:

(a) they are eligible — or, but for any applicable minimum period of residence or waiting period, would be eligible — for health services funded by a government in Canada;

(b) they are at least 18 years of age and capable of making decisions with respect to their health;

(c) they have a grievous and irremediable medical condition;

(d) they have made a voluntary request for medical assistance in dying that, in particular, was not made as a result of external pressure; and

(e) they give informed consent to receive medical assistance in dying after having been informed of the means that are available to relieve their suffering, including palliative care.”5

The Joint Committee that made initial recommendations for this piece of legislation did not ignore the issue of conscientious objection.6 The recommendation made was that the means by which the rights of physicians and patients might be reconciled should be decided at the provincial level and that objecting physicians should be required to provide effective referral.7 Bill C-14 makes no clear statement about conscientious objection to MAID, therefore, when we talk about the issue of making referrals mandatory, we are talking about a broad moral problem that has been dealt with differently by each province (Ontario leading the charge in favor of mandatory referrals).    

In our discussion of this pressing matter and all its moral and social implications, definitions are of primary importance. Many of the terms we would typically use with broad applications, we may discover, have narrow meanings. On a more political note, many terms are having their meanings continually readjusted by certain parties to fit an ethical paradigm. It seems in many cases that words are the first casualties of these sorts of conversations. Therefore, I will carry on in this piece only after I’ve defined the key terms being used.

Euthanasia: The word is Greek in origin, literally meaning ‘good death’. It is the act of one person killing another person with the intent of relieving their suffering. The act may be done actively (for example, by lethal injection or strangulation) or passively (for example, by deprivation of food). Euthanasia may be done voluntarily (by explicit consent of the person being euthanized), involuntarily (in opposition to explicitly stated wishes of the euthanized person), and non-voluntarily (no explicit statement of wishes given either way).

Medical Assistance in Dying (MAID): This is an active, voluntary form of euthanasia performed by a physician, often by lethal injection, on a patient who wishes for a premature death and requests the assistance of a physician in the dying process.

Assisted Suicide, or Physician Assisted Suicide (PAS): The patient self-administers a lethal cocktail of drugs, or some other means, provided by a physician, pharmacist, or some other person, in order to die prematurely or on their own terms. 

At this point, I’d like to note for clarification that if I use the general term assisted dying or assisted death, it should be taken to refer to any kind of voluntary assisted death, including voluntary euthanasia, MAID, and PAS. Here are two more definitions:

Conscientious Objection (CO): The individual in a professional setting disagrees, on the basis of moral conscience and/or religious conviction, with an act or procedure that the individual is being requested to perform and refuses to perform that act or procedure. The act or procedure is a requirement of the profession.

Right to Die: As defined by its proponents, a patient has an inherent and owed right to die on their terms should that patient consider their degree of suffering unbearable and their living meaningless or unnecessary as a result.8

As I will explain later, a sixth term that needs to be defined is complicity and this will be a central focus and purpose of the final section of this piece which aims to address the ethics of CO and mandatory referrals.

Three Possible Approaches to Conscientious Objection in Medicine

The bill in its final form appealed to very few people outside of the small group that manufactured it. Those on the conservative end of the social spectrum claim the bill is too liberal, ambiguous, and would ultimately damage society. Many on the liberal side also view the bill as being ambiguous but too exclusive and, in its exclusivity, discriminatory. What both sides agree on is that the lack of clarity in the bill makes life difficult on the medical professionals called upon to carry out the work, in terms of wrestling with legal boundaries as well as the ethical consequences. While the concerns are shared on all sides, there is disagreement on what is an appropriate level of restriction on CO among medical professionals.

Dr. Wicclair provides us with three possible approaches, broadly-speaking, to CO:

  1. Conscience absolutism: The physician must be permitted to refuse any service that conflicts with their conscience, without any other obligations such as referrals or providing information of options to the patient.9 
  2. Incompatibility: Refusing any legal service is “contrary to the professional obligations of physicians”.10
  3. Compromise: A compromise can and ought to be negotiated between the objecting professional and the receptor of the service (i.e. the patient) via provisions.11  

In the following section, I will defend my prior statement that effective referral is injurious to the conscientious objector and advocate a form of compromise.

In Favor of Conscientious Objection (Without Complicity)

What is evident after a first reading of Bill C-14 and the other regulatory decisions that followed its enactment is that the complicity of an objecting physician’s will has become a side-cost to the assisted dying experiment. Is the fee truly necessary though? 

As an example of the effective referral requirement, let us review the regulation stated by the College of Physicians and Surgeons of Ontario:

“Where physicians are unwilling to provide certain elements of care for reasons of conscience or religion, an effective referral to another health-care provider must be provided to the patient. An effective referral means a referral made in good faith, to a non-objecting, available, and accessible physician, other health-care professional, or agency. The referral must be made in a timely manner to allow patients to access care. Patients must not be exposed to adverse clinical outcomes due to a delayed referral. Physicians must not impede access to care for existing patients, or those seeking to become patients.”12

The following three arguments I present are good reasons to oppose making effective referrals mandatory in this manner and for supporting conscientious objection in health care, without complicity, in general.

Argument 1: Effective Referrals Require Physician Complicity

Premise 1: Effective referrals directly contribute to the MAID procedure.

Premise 2: Any action that directly assists in a procedure taking place that is deemed unethical is an action constituting complicity. The person’s involvement makes that individual complicit in the procedure.

Conclusion 1: Effective referrals make the physician complicit with MAID services.

Premise 3: Mandating an objecting physician to be complicit in a procedure that they consider unethical infringes upon their freedom of conscience.

Conclusion 2: Mandatory effective referrals infringe a person’s freedom of conscience.

Allow me to clarify and defend a few of the points made here. I am taking direct opposition to the notion that the act of referring a patient to another physician who is willing to perform the morally questionable procedure is morally neutral. It isn’t.

Some may disagree with my first premise that effective referrals are directly linked to the MAID procedure itself. I believe that the contribution is direct because it gives specific direction and means to access MAID, beyond merely making the patient aware of their options.13 

Premise two, which is central to the argument, is based on a standard definition of the word complicit. It seems hardly disputable, but I foresee a few objections. Complicity requires certain cooperation and involvement. This much is known. What I add in my definition is that the very word implies cooperation with an act or series of acts that are immoral or unethical. This requires a determination of the morality of the action and while there may be an attempt to distinguish moral actions from professional actions, if there is only the knowledge and belief that an act is immoral, then that alone constitutes personal complicity. Regardless of whether or not a medical procedure is actually immoral, if the physician determines that the procedure they are being required to carry out or cooperate with in some sense is unethical, then that still satisfies the definition of complicity.14 

(This brings up an interesting point of discussion, that there are some who feel professional duties cannot be treated as having any moral weight. It is simply a matter of “doing your job”. I don’t want to explore that idea too deeply, though it will come up in Argument 2b., below. I will only say that I’m not sure if this can truly and consistently be adhered to. Especially when the foundational moral assumption for legalizing abortion and assisted dying is their physical and psychological benefit for the people receiving that service.)

The first conclusion follows from premises one and two. An effective referral signifies cooperation with the medical procedure to be carried and indeed contributes towards the smooth access and execution of that procedure. 

The third premise ties into the argument to follow (see Argument 2a. below). It connects the complicity underlying the act of referral to the issue of the preservation, or lack thereof, of the conscience rights of the physician. If a physician is being forced to cooperate with a procedure that they believe is unethical, under threat of penalty, then this necessitates a restriction on the freedom to exercise their conscience and, in many other cases, adhere to their religious convictions. 

I have shown that mandatory effective referrals, because they render the physician complicit through their cooperation with a procedure otherwise deemed immoral, breach the physician’s freedom of conscience enshrined by the Canadian Charter of Rights and Freedom. 

Let me give two more baseline arguments, for one’s consideration, in favor of CO.

Argument 2a.: Argument for CO from human rights

Premise 1: Physician CO is an exercise of freedom of conscience/religion.

Premise 2: Physicians have a right to freedom of conscience/religion, as stated by the Charter.

Premise 3: Canadian professional requirements/obligations must not interfere/obstruct the exercise of fundamental human rights protected by Canada’s Charter.

Conclusion: Canadian professional requirements/obligations must not reject physician CO.

This directly confronts the fundamental problem with obligating an objecting physician to refer their patient to a non-objecting physician. A person could look at my Complicity Argument and dismiss it entirely on the basis that they do not believe in conscientious objection to begin with.

At the bottom of the issue is a perceived conflict with requiring a physician to perform a procedure though they must not be forced to go against conscience. What I am suggesting and arguing for is that the Canadian medical profession has a duty to honor the rights of the physician (they’re people too!) by not rejecting physician conscientious objection. This much they are owed. 

Argument 2b.: Argument for CO from a definition of medical care

Premise 1: The goal of medical care is to provide physical, emotional, and spiritual healing.

Premise 2: CO to MAID services in general aims to preserve the physical, emotional, and spiritual health of the patient.15

Conclusion 1: CO to MAID services is consistent with the goal of medical care.

Premise 3: The health care system must accommodate physicians with ethical positions consistent with the goal of medical care.

Conclusion 2: The health care system must accommodate physician CO to MAID services.

I am here offering a deeper and perhaps more controversial argument in favor of CO to MAID by deriving the conclusion from a definition of medical care. Here are a few foreseeable objections: 

(1) One issue is how one defines health care in the first place. It isn’t straight-forward. The definition I espouse in the first premise was purposefully left as generic and broadly stated so that as many philosophical viewpoints as possible may be found to be compatible with it. I don’t view this definition as being particularly contentious.

(2) The first conclusion could be considered problematic because determining whether anti-euthanasia sentiments are consistent with the goals of medicine may be somewhat of a challenge. The main point here is to provide a meaningful criterion for legitimate CO. If the objection is based on a genuine concern for the overall wellbeing of the patient as well as the appropriateness and ethicality of the procedure for the given situation, then the reasons for CO may be said to be consistent with the goals and purposes of medicine. There is a general understanding, I think, from a moral standpoint, that what is right and appropriate will lead to the wellbeing of the patient or at least be beneficial for the patient. The physicians that object to providing MAID services often do so based on a prioritization of the physical life, health, safety of the patient, as per the Hippocratic Oath. For the longest time, euthanasia and assisted dying were understood to be antithetical to the Oath and the moral logic of duty to care.

(3) A third issue is whether it is necessarily true that the health care system must accommodate CO for the reasons I suggest. Does C2 truly follow from the previous premises? This is where we enter the discussion of whether medical professionals are to turn the ethical parts of their brain off when they go to work, being present to fulfill all of their legal duties, or if there is room for independent judgment and moral deliberation in line with the goals and purposes of medical care whilst on the job.

Margaret Somerville, bioethicist and professor at McGill University in Montreal, wrote in 2008, “The practice of medicine always and unavoidably involves ethical and moral issues, although when we all agree on how they should be dealt with, we might not be consciously aware of them in day-to-day practice. It’s only when something goes wrong or there is a conflict of values that the ethical issues flash up on the big screen. Treating physicians as mere technicians fails completely to take that omnipresent ethical aspect into account. Treating physicians as mere technicians is also the antithesis of the traditional concept of a physician, as a professional with ethical and legal obligations to exercise good professional judgment. Most notable among those obligations is to “first do no harm”, which means that a physician may not simply fulfill a patient’s request, but must make an independent judgment as to its acceptability.” 16

Julian Savulescu, ethics professor at Oxford University, is of a significantly differing opinion. For example, he wrote in 2006, “A doctors’ conscience has little place in the delivery of modern medical care. What should be provided to patients is defined by the law and consideration of the just distribution of finite medical resources, which requires a reasonable conception of the patient’s good and the patient’s informed desires. If people are not prepared to offer legally permitted, efficient, and beneficial care to a patient because it conflicts with their values, they should not be doctors. Doctors should not offer partial medical services or partially discharge their obligations to care for their patients.”17

I agree with Somerville, and not Savulescu, for at least two reasons. The first is that Savulescu’s argument seems on the surface to be self-defeating. On one hand, he asks that doctors mute their conscience when they show up to work in the morning, yet doctors are called to have “a reasonable conception of the patient’s good” and to provide care that is “beneficial” as well as legal and efficient. Moreover, Savulescu makes a moral assertion that those who object to what is requested of them by their patients should not be doctors. 

I also find Somerville’s position more attractive particularly when she asks, “Would any of us really want to be treated by a physician who had complied with a directive to “park your ethics and values with your car outside the surgery”?”

Argument 3: Argument for compromise and making effective referrals non-mandatory 

Now that we have dealt, albeit briefly, with the moral issue of mandatory physician referrals and CO, I would like to suggest that there are practical ways of reconciling the rights of patients and physicians. My suggestion is by no means new. Many people have been advocating for such means for a long time now.

The ideal solution achieves the optimal balance between respect for the rights and interests of physician and patient and this should be the solution that Canada implements. Making it mandatory for objecting physicians to give an effective referral does not achieve an optimal balance, it does not honor the rights of the physician to exercise their conscience (see Complicity Argument). Effective referrals should not be made mandatory if equally effective alternatives exist.

Equally effective alternative solutions do exist to mandatory effective referrals, achieving a more optimal balance between respect for the rights and interests of physician and patient. For example, Alberta MP Garnett Genuis suggested that “Health authorities could compile lists of willing providers, and patients could be made aware of the law and of their ability to access willing providers. This need not be cumbersome for anyone, but would also ensure that we are not chasing good clinicians out of the profession or the country because they don’t want to be involved in something which they find objectionable.”18

This would pose a greater practical solution to the issue of CO. Considering that there is a high percentage of physicians, based on historical survey data, that are uncomfortable with providing MAID services or outright refuse to provide such services, it is best to provide an opt-out means so that patient rights are respected and skilled medical professionals are not endangered.19 

Therefore, I maintain that not only is the mandatory referral solution unethical, but it is also unnecessary.

Brief Rejection of Conscience Absolutism and Incompatibility

I reject the Conscience Absolutist approach because I believe some claims may be morally justifiable and sincere while others are not. If a claim is found to be insincere and morally unjustifiable, it may be arguably considered unacceptable. A claim to CO could be based on any number of reasons, some good, some not so good. Claims should be treated on a case by case basis. My case for CO is such that any individual with a genuine conviction that aims at professionalism and internal moral consistency ought to be protected. 

I reject the Incompatibility approach because I simply do not buy the idea that a medical professional is (a) betraying the profession by being lead by independent moral reasoning apart from the government and the public, (b) relinquishing responsibility by adhering to their moral and religious convictions, (c) necessarily contradicting the goals of medicine by acting on those convictions. I also do not buy that the healthcare system cannot manage to produce a reasonable means of honoring both the rights of the physician and the patient without causing harm to those with sincere objections. 

Furthermore, and this is admittedly a more politically-charged comment, I believe there is deep hypocrisy within the Right to Die and the general pro-choice movements that argue, for example, that a slice of the national demographic ought not to force religious or moral beliefs upon others who believe otherwise, and then proceed to argue that all physicians must be prepared to provide whatever service is demanded by their patients, regardless of their independent judgment and moral conviction.  

Conclusion

The decision of Ontario and other provinces to force physicians who object to providing MAID services to patients to refer their patients to another willing physician poses serious moral problems. It requires that the objecting physician be complicit in an act they deem unethical or possibly incompatible with the tenets of their religious worldview. In a very serious way, this is damaging to the exercise of the professional’s conscience rights, owed to them by Canada’s Charter of Rights and Freedoms. What is perhaps more grievous is that the decision made by these provinces in their regulatory documents to obligate objecting physicians to refer their patients is unnecessary. This signifies not only the power of popular opinion to affect legislation and policy, but also that cultural attitudes towards medicine and healthcare are veering in a direction that should cause deep concern. 

Nate Cloutier is a recently-graduated mechanical engineering student with a specific interest in architectural and environmental acoustics, and bioethics.

Endnotes

1. Wicclair, Mark R. Conscientious Objection in Health Care: An Ethical Analysis, Cambridge University Press, P. 32 

2. Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519

3. See British Columbia Civil Liberties Association website: https://bccla.org/our-work/blog/death-with-dignity-case/

4. Carter v Canada (Attorney General), 2015 SCC 5

5. An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying) (formerly Bill C-14), 1st Sess, 42nd Leg, Canada, 2016 (assented to June 17, 2016)

6. The Special Joint Committee on Physician-Assisted Dying was a group who gave recommendations to the Canadian government when the legislation on physician assisted dying was being drafted. For more information, see https://www.parl.ca/DocumentViewer/en/42-1/PDAM/report-1

7. See https://lop.parl.ca/staticfiles/PublicWebsite/Home/ResearchPublications/LegislativeSummaries/PDF/42-1/c14-e.pdf

8. While I believe this definition accurately reflects the majority of pro-choice advocates, note that there is variance in how the right is defined. The part I include at the end, depending on who you talk to, may be entirely jettisoned. Or, conversely, the right might be further constrained.

9. Wicclair, Mark R. Conscientious Objection in Health Care: An Ethical Analysis, Cambridge University Press, P. xi

10. Ibid

11. Ibid

12. College of Physicians and Surgeons of Ontario, Professional Obligations and Human Rights, updated March 2015. See https://www.cpso.on.ca/Physicians/Policies-Guidance/Policies/Professional-Obligations-and-Human-Rights

13. MP Garnett Genuis clarifies this: “The referring clinician isn’t just showing the patient where to go; she is effectively doing the transfer work herself. Understandably, therefore, clinicians are almost never expected to provide referrals for things that they would regard as scientifically or ethically inadvisable.” See his article for McLean’s, The intersection of freedom of conscience and assisted dying, April 7, 2016. https://www.macleans.ca/politics/ottawa/the-intersection-of-freedom-of-conscience-and-assisted-dying/

14. Margaret Sommerville, What’s behind the demolition of conscience rights in Canada?, April 12, 2016.  https://www.mercatornet.com/articles/view/whats-behind-the-demolition-of-conscience-rights-in-canada/17890

15. See Dr. Jeff Blackmer’s interview for MacLean’s, A CMA doctor on the burdens and ethics of assisted death, June 8, 2016. https://www.macleans.ca/society/health/a-cma-doctor-on-assisted-death-and-navigating-the-ethical-grey-area/

16. Marget Somerville, Denying Doctors free conscience unconscionable, September 17, 2008. https://www.consciencelaws.org/ethics/ethics078-009.aspx

17. Savulescu Julian, Conscientious objection in medicine BMJ 2006; 332:294

18. Garrett Genuis, The intersection of freedom of conscience and assisted dying, April 7, 2016. https://www.macleans.ca/politics/ottawa/the-intersection-of-freedom-of-conscience-and-assisted-dying/

19. Vogel, Lauren. Many doctors won’t provide assisted dying CMAJ 2015 187(13); E409-E410

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