Conscience rights of physicians and the decision of the Ontario Court of Appeal

All doctors are needed

On May 15, 2019, the Court of Appeal for Ontario confirmed a lower court ruling defending the requirement of the College of Physicians and Surgeons of Ontario (CPSO) that dissenting physicians make “effective referrals” for euthanasia (“MAiD”).

We consider this decision to be not only wrong, but founded upon non-factual assumptions, contrary to the needs of patients, and contrary to the opinion of those doctors most aware of the needs of terminally ill patients. The Canadian Society of Palliative Care Physicians (CSPCP) in a  recent messaging update states, notably: that MAID referral should not be the responsibility of the individual physician, but requires a separate, publicly accessible information service, and, of course, that dissenting physicians should be respected in their choice.

In its judgement the Court described CPSO policy in these terms: “[The policies] strike a reasonable balance between patients’ interests and physicians’ Charter-protected religious freedom.”

Underlying this assessment lies the false assumption that the “rights” of objecting doctors are a threat to the “interests” of patients. Needless to say, in our view, the reason these doctors exercise their charter rights is to protect the interests of their patients.

In response to the judgement Dr. Nancy Whitmore, registrar and CEO of the CPSO, spoke of “ensuring patients get access to the care they need”. Again, we believe that euthanasia is not medical care, and that if patients were getting the care they needed, the demand for euthanasia would approach zero.

Above all, there is one key fact that has been insufficiently considered in this debate: that the vast majority of patients do not want to die, that they do not ask for euthanasia, and that they refuse it when offered.

In other words, the perception that objecting doctors, with their narrow personal prejudices, are somehow in conflict with the “interests” of their own patients is plainly false with regard to the majority. On the contrary, at great personal cost, these doctors are publicly defending the sort of care that is desired by the majority of patients.

It is evident that we are facing two distinct clienteles requiring two distinct services, and that there is a large discrepancy in the numerical importance of the two. In the Netherlands, for example, where euthanasia has been aggressively marketed to patients for nearly twenty years, only 13 % of cancer patients consent to die in this manner. We must ask ourselves, therefore: what acceptance of negative consequences are we prepared to require of the 87% who do not?

In this regard, The Canadian Society of Palliative Care Physicians (as above) maintains that providing euthanasia is a service “distinct from palliative care”; and that “The Canadian public must be able to continue to trust that the principles of palliative care remain… to help people live as well as they can until their natural death.” A particular criticism is made of the so-called “duty to inform” being promoted by some euthanasia activists, which would require doctors to systematically inform seriously ill patients of their “right to die”. The CSPCP rightly observes that this “… could exert undue pressure or cause subtle/overt coercion of patients.” i.e. it is nothing less than universal suicidal suggestion imposed upon this vulnerable group.

Euthanasia enthusiasts often make their case in these terms: “It is legal; we pay for it with our taxes; and we have the right to enjoy it”. We would respond however, that the very same can be said of the life-centered care desired by the majority. This majority should be able to access medical care with the confident expectation that those doctors randomly assigned to them would never “give a lethal drug to anyone… nor… advise such a plan” (Hippocrates) , i.e. that they will be allowed to feel safe.

That is the root problem with the evolving forms of euthanasia implementation in Canada: The entire industry is being retooled to optimize the satisfaction of a small minority, to the serious detriment of that much larger share of patients who are non-suicidal. Or, as has been remarked (Le Devoir, July 2016) : “Every citizen has the right to a smoke-free environment, but not to one that is free of euthanasia…”

Let us remember that the court cases leading to the legalization of euthanasia were only concerned with the decriminalization of such an act. It was decreed that a consenting doctor might euthanize a patient, under certain circumstances, without going to jail. That is all. It was never stated that society at large, or the medical profession (much less the individual doctor) would ever be responsible for providing such a “service”.

More generally, health care services, being accessed by different clienteles having different desired outcomes, must adjust to these competing demands. There may be specialized delivery systems, and there may be general facilities where the default procedure will logically favor the expected majority, ensuring reasonable minority access without reducing the quality and availability of majority service.

In this case, we believe that minority access should be perfectly satisfied with the simple legality of euthanasia, coupled with the free dissemination of information regarding service availability. Public funding for such information (not to mention funding for the procedure itself) would be a further, non-obligatory, gesture of goodwill.

On the other hand, consider the new standard of care required by the College of Physicians and Surgeons of Ontario and upheld by the Court of Appeal, which will lead to patients justifiably living in fear of being treated by doctors who would be happy to euthanize them; who patiently (and even insistently) inform them of their “right to die”; and who await only the required consent to proceed. Is this not a paradigm hugely unfair to the non-suicidal majority?
But even that is not all, for onerous regulations requiring some physicians to do that to which they cannot in good conscience consent will necessarily force them out of practice or out of the country. How, we ask, can the satisfaction of a minority demand possibly justify the purging of doctors who are urgently required to serve the majority? There are not even enough doctors as things are now! And yet some of our best are to be drummed out under accusations of ideological impurity? The very idea surpasses the notion of “absurd”.

Let us be clear:
• The exercise of conscience rights by individual doctors does not threaten the interests of patients (Overall, doctor conscience has historically provided the long-term guarantee of those interests).
• The refusal of individual doctors to collaborate in euthanasia does not significantly affect access to that service (Supply is organically dynamic and grows with demand).
• It is not rational to reconfigure the entire health care system for optimal minority satisfaction when that transformation destroys the infrastructure designed to serve a different (and quantitatively greater) purpose.
• If there are two distinct clienteles with two distinct treatment models, then two parallel streams must be allowed to evolve independently.

And most importantly, the very last thing we need is to lose professionals who are ideally suited to serve.

Make euthanasia unimaginable.


Catherine Ferrier


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