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.