Medical Assistance in Dying in Canada: An Ethical Analysis of Conscientious and Religious Objections

Dylan Dahlgren, Fred Koning, John Sloan, Timothy Christie

Bioethique Online

Abstract

Background: The Supreme Court of Canada (SCC) has ruled that the federal government is required to remove the provisions of the Criminal Code of Canada that prohibit medical assistance in dying (MAID). The SCC has stipulated that individual physicians will not be required to provide MAID should they have a religious or conscientious objection. Therefore, the pending legislative response will have to balance the rights of the patients with the rights of physicians, other health care professionals, and objecting institutions.

Objective: The objective of this paper is to critically assess, within the Canadian context, the moral probity of individual or institutional objections to MAID that are for either religious or conscientious reasons.

Methods: Deontological ethics and the Doctrine of Double Effect.

Results: The religious or conscientious objector has conflicting duties, i.e., a duty to respect the “right to life” (section 7 of the Charter) and a duty to respect the tenets of his or her religious or conscientious beliefs (protected by section 2 of the Charter).

Conclusion: The discussion of religious or conscientious objections to MAID has not explicitly considered the competing duties of the conscientious objector. It has focussed on the fact that a conscientious objection exists and has ignored the normative question of whether the duty to respect one’s conscience or religion supersedes the duty to respect the patient’s right to life.

Christie T, Sloan J, Dahlgren D, Konging F.  Medical Assistance in Dying in Canada: An Ethical Analysis of Conscientious and Religious Objections.  BioéthiqueOnLine, 2016, 5/14

The Limits of Conscientious and Religious Objection to Physician-Assisted Dying after the Supreme Court’s Decision in Carter v. Canada

Amir Attaran

The Limits of Conscientious and Religious Objection to Physician-Assisted Dying after the Supreme Court’s Decision in Carter v. Canada

In February 2015, the Supreme Court of Canada unanimously ruled in Carter v. Canada (Attorney General) that the Canadian Charter of Rights
and Freedoms (the “Charter”) protects the right of every competent, consenting adult suffering from a grievous and irremediable medical condition to
choose death, assisted by a physician.1 The Court’s decision to quash the sections of the Criminal Code that criminalize physician-assisted dying is in
abeyance until June 2016.2

Trouble is, not many physicians seem willing to assist. In a survey of its members, the Canadian Medical Association found that, at best, only 29 per
cent would consider a patient’s request for medical aid in dying, while a staggering 63 per cent would refuse outright (and even more say they would refuse
if the patient were not terminally ill).3 Further, among that majority of doctors who would refuse, most also believe that the system should require
them to do nothing to help patients die—not even refer the patient to a more willing doctor.4 No doubt there are fissures within the profession — family doctors appear to be more willing to assist dying, and Christian doctors less willing — but overall, it is clear that a majority of Canadian doctors
polled refuse to participate in physician assisted dying.5

. . . This article argues that whether doctors do or do not have the right to refuse to treat patients on conscientious or religious grounds is neither a difficult nor a novel legal issue. Patients and doctors have clashed on this issue before, and when they have, tribunals and courts have overwhelmingly sided
with the patients over the doctors. . .

. . .Equality law therefore greatly limits, but does not wholly abolish, the ability of doctors to opt out of giving medical services. For example, while
a doctor clearly would be justified to opt out of physician-assisted dying if he or she lacks the clinical skills to administer it safely—equality law does
not override the standard of care and fiduciary duty owed to the patient—it is extremely doubtful that a suitably skilled doctor could opt out just because of his or her conscientious or religious objection to assisting death, and that is because doing so would discriminate against the patient.


Attaran A. The Limits of Conscientious and Religious Objectionto Physician-Assisted Dying after the Supreme Court’s Decision in Carter v. Canada. Health Law Can. 2016 Feb;36(3):86-98.

Emerging assault on freedom of conscience

Stephen J. Genuis

Canadian Family Physician

Discussion on physician autonomy at the 2014 and 2015 Canadian Medical Association (CMA) annual meetings highlighted an emerging issue of enormous importance: the contentious matter of freedom of conscience (FOC) within clinical practice. In 2014, a motion was passed by delegates to CMA’s General Council,and affirmed by the Board of Directors, supporting the right of all physicians, within the bounds of existing legislation, to follow their conscience with regard to providing medical aid in dying. The overwhelming sentiment among those in attendance was that physicians should retain the right to choose when it comes to matters of conscience related to end-of-life intervention. Support for doctors refusing to engage in care that clashes with their beliefs was reaffirmed in 2015. However, a registrar from a provincial college of physicians and surgeons is reported to have a differing perspective, stating “Patient rights trump our rights. Patient needs trump our needs.1

So, do the personal wishes of doctors hold much sway in Canadian society, where physicians are increasingly perceived as publicly funded service providers? Should the colleges of physicians and surgeons have the power to remove competent physicians who refuse to violate their own conscience?

And what about FOC in a range of other thorny medical situations unrelated to physician-assisted dying?

Genuis SJ. Emerging assault on freedom of conscience.  Canadian Family Physician April 2016 vol. 62 no. 4 293-296  [Full text]

Legal and ethical aspects of organ donation after euthanasia in Belgium and the Netherlands

Jan Bollen,Rankie Ten Hoopen, Dirk Ysebaert, Walther van Mook, Ernst van Heurn

Journal of Medical Ethics

Abstract

Organ donation after euthanasia has been performed more than 40 times in Belgium and the Netherlands together. Preliminary results of procedures that have been performed until now demonstrate that this leads to good medical results in the recipient of the organs. Several legal aspects could be changed to further facilitate the combination of organ donation and euthanasia. On the ethical side, several controversies remain, giving rise to an ongoing, but necessary and useful debate. Further experiences will clarify whether both procedures should be strictly separated and whether the dead donor rule should be strictly applied. Opinions still differ on whether the patient’s physician should address the possibility of organ donation after euthanasia, which laws should be adapted and which preparatory acts should be performed. These and other procedural issues potentially conflict with the patient’s request for organ donation or the circumstances in which euthanasia (without subsequent organ donation) traditionally occurs.


Bollen J, Ten Hoopen R, Ysebaert D, van Mook W, van Heurn E. Legal and ethical aspects of organ donation after euthanasia in Belgium and the Netherlands. J Med Ethics. 2016 Aug;42(8):486-9. doi: 10.1136/medethics-2015-102898. Epub 2016 Mar 24.

Canadian physicians warned to get ready for euthanasia and assisted suicide

Sean Murphy*

Canadian physicians warned to get ready for euthanasia and assisted suicide

Three physicians and a lawyer have written an article published in the May issue of the Canadian Medical Association Journal.[1] The lead author, Dr. James Downar, is co-chair of a euthanasia/assisted suicide advocacy group.

Anticipating a change in the law, the authors warn that “well-rehearsed debates” about sanctity of life and personal autonomy “may become obsolete.”

“We need to start to answer some challenging questions in preparation for the possibility that physician-assisted death will be available in Canada soon,” they write.

Among the questions they pose, one raises two particularly sensitive issues:

Will physicians who are conscientious objectors be obliged to present physician-assisted death as an option to patients and facilitate transfers of patients to other physicians or facilities?

As a matter of law and ethics, physicians are expected to advise patients of all reasonable legal options for treatment so that patients can provide informed consent to it.  However, many physicians who are strongly opposed to euthanasia and assisted suicide may view the “presentation of an option” for either procedure as inherently abusive of vulnerable patients.  This problem does not usually arise with respect to other morally contested procedures, like abortion or contraception.

A requirement to “facilitate transfers” of patients would probably be acceptable if it involved only the kind of  cooperation normally involved in the transfer of records when a patient is taken on by a different physician; this is all that is required in Belgium, Oregon and Washington State.  However, a demand that objecting physicians refer patients or actively initiate transfers would be resisted by those who would consider such actions to involve unacceptable complicity in killing.  The Supreme Court of the Philippines recognized this issue when it struck down a mandatory referral requirement in the country’s Reproductive Health Law as an unconstitutional violation of freedom of conscience.

Murphy S. Canadian physicians warned to get ready for euthanasia and assisted suicide [Internet]. Powell River, BC: Protection of Conscience Project; 2014 May 13 [Updated 2021 Mar 09].

Notes

1. Downar J, Bailey TM, Kagan J, Librach SL.  Physician-assisted death: time to move beyond Yes or No.  CMAJ 2014 May 13;186(8):567-8. doi: 10.1503/cmaj.140204. Epub 2014 Apr 7.

Dignity, death, and dilemmas: A study of Washington hospices and physician-assisted death

Courtney S. Campbell, Margaret A. Black

Journal of Paint and Sympton Management

Abstract:

The legalization of physician-assisted death in states such as Washington and Oregon has presented defining ethical issues for hospice programs because up to 90% of terminally ill patients who use the state-regulated procedure to end their lives are enrolled in hospice care. The authors recently partnered with the Washington State Hospice and Palliative Care Organization to examine the policies developed by individual hospice programs on program and staff participation in the Washington Death with Dignity Act. This article sets a national and local context for the discussion of hospice involvement in physician-assisted death, summarizes the content of hospice policies in Washington State, and presents an analysis of these findings. The study reveals meaningful differences among hospice programs about the integrity and identity of hospice and hospice care, leading to different policies, values, understandings of the medical procedure, and caregiving practices. In particular, the authors found differences 1) in the language used by hospices to refer to the Washington statute that reflect differences among national organizations, 2) the values that hospice programs draw on to support their policies, 3) dilemmas created by requests by patients for hospice staff to be present at a patient’s death, and 4) five primary levels of noninvolvement and participation by hospice programs in requests from patients for physician-assisted death. This analysis concludes with a framework of questions for developing a comprehensive hospice policy on involvement in physician-assisted death and to assist national, state, local, and personal reflection.


Campbell CS, Black MA. Dignity, death, and dilemmas: A study of Washington hospices and physician-assisted death. J Pain Symptom Manage. 2013 Jul 3. pii: S0885-3924(13)00270-4. doi: 10.1016/j.jpainsymman.2013.02.024. [Epub ahead of print]

Letter re: Redefining Physicians’ Role in Assisted Dying

Edward Lowenstein, Marcia Angell

NEJM

To the Editor: As two of the original petitioners to bring a Death with Dignity Act before Massachusetts voters, we are pleased that Prokopetz and Lehmann believe “there is a compelling case for legalizing assisted dying,” as they state in their Perspective article (July 12 issue).1 However, we oppose their idea that physicians who agree that assisted dying is sometimes indicated might outsource the actual writing of the prescription to a government agency, presumably because they find that final step “incompatible with the physician’s role as healer” (in the words of the statement on the subject by the American Medical . . .


Angell M., Lowenstein E. Letter re: Redefining Physicians’ Role in Assisted Dying. N Engl J Med 2013; 368:485-486 January 31, 2013 DOI: 10.1056/NEJMc1209798

Recognizing conscience in abortion provision

Lisa Harris

NEJM

The exercise of conscience in health care is generally considered synonymous with refusal to participate in contested medical services, especially abortion. This depiction neglects the fact that the provision of abortion care is also conscience-based. The persistent failure to recognize abortion provision as “conscientious” has resulted in laws that do not protect caregivers who are compelled by conscience to provide abortion services, contributes to the ongoing stigmatization of abortion providers, and leaves theoretical and practical blind spots in bioethics with respect to positive claims of conscience — that is, conscience-based claims for offering care, rather than for refusing to provide it.


Harris L. Recognizing conscience in abortion provision. N Engl J Med 2012; 367:981-983

Redefining Physicians’ Role in Assisted Dying

Julian J.Z. Prokopetz, Lisa Soleymani Lehmann

NEJM

Data from places with legal assisted dying have allayed concerns about potential abuses and patient safety, but a lingering challenge comes from the medical establishment. Creating a centralized mechanism for prescribing lethal medication could overcome this hurdle. . .


Prokopetz JJZ, Lehmann LS. Redefining Physicians’ Role in Assisted Dying.  N Engl J Med 2012;  367:97-99 July 12, 2012

The Ever-Expanding Health Care Conscience Clause: The Quest for Immunity in the Struggle Between Professional Duties and Moral Beliefs

Maxine M. Harrington

Florida State University Law Review

Introduction:  During the past few years, the debate over whether health care professionals should be required to provide services that conflict with their personal beliefs has focused primarily on pharmacists refusing to fill prescriptions.1 According to one media account, during a sixmonth period in 2004 there were approximately 180 reports of pharmacists refusing to dispense routine or emergency oral contraceptives. 2 This controversy, however, extends beyond the pharmacy into every facet of the heath care system. . .


Harrington MM. The Ever-Expanding Health Care Conscience Clause: The Quest for Immunity in the Struggle Between Professional Duties and Moral Beliefs. 34 Fla. St. U. L. Rev. 779, 816 n.237 (2007)