Of all the jurisdictions worldwide that permit some form of assisted suicide, Ontario stands alone in mandating that physicians participate in it.

Assisted suicide, or “medical assistance in dying” (MAID), as it is now known, was decriminalized in certain specific circumstances as a result of the Supreme Court’s 2015 decision in Carter v. Canada and has been implemented through Bill C-14, which amended relevant sections of the Criminal Code in 2016.

But does permitting what was once a criminal activity now mean that all health care professionals must participate? Not according to the Supreme Court. In Carter the Court affirmed that nothing in its ruling would compel physicians to participate in assisted dying. Bill C-14 similarly affirmed that nothing in the amendments would affect the constitutional guarantee of freedom of conscience and religion.

And yet Ontario requires its physicians to participate. Through two policies (Medical Assistance in Dying and Professional Obligations and Human Rights), the College of Physicians and Surgeons of Ontario (CPSO) mandates all physicians to provide “effective referrals” for patients seeking MAID even when their conscience dictates otherwise.

Why are these requirements so offensive? What is it about freedom of conscience that is so important? And why shouldn’t the government mandate participation in what is no longer a criminal act? Much can be written in response to these questions, but two key points will be made here. First, compelling physicians to participate in MAID results in the state deciding what everyone should believe; and second, it undermines physicians’ moral integrity, a foundational component of medical ethics and principled health care.

A blueprint for moral conformity

Demanding that physicians participate in MAID imposes state-approved morality on physicians, enforcing moral conformity. It is more than a judgment about the legitimacy of conscientious objection in general; it eliminates any room for dissenting and independent views on deeply contested moral principles, and it does so with the weight and authority of the state, meaning the state has the ability to impose sanctions for falling outside the scope of what it deems permissible.

The CPSO has chosen to draw a line between refusal to administer the fatal drug, which it will accommodate when a physician has a conscientious objection (at least for now), and refusal to make a referral for that same fatal drug, which it will not accommodate. In refusals to refer, the CPSO denies the existence of a possible violation of conscience. Why accommodate the former and not the latter? Some see the distinction as an access issue for patients but, as the Canadian Medical Association (CMA) has recognized, this position is “not empirically supported internationally, where no jurisdiction has a requirement for mandatory effective referral, and yet patient access does not seem to be a concern.”

This differentiation is also inconsistent: if patient access concerns are sufficient to override sincere conscientious objections in the context of referrals for MAID, would they not be sufficient to override sincere conscientious objections to directly providing euthanasia or assisted suicide as well? If physicians chose, en masse, to boycott assisted suicide, would the state nonetheless compel them to end their patients’ lives?

Proponents of effective referrals argue that since MAID is now authorized by law and publicly funded, all health care professionals must facilitate it, even if they cannot directly provide it themselves. However, Canada’s constitutional guarantee of freedom of conscience is not contingent on whether an objectionable act is legal.

Consider conscientious objectors in the context of war. The government may fund and authorize participation in war, considering it a public good, perhaps even a necessary public good, and yet allowance is made for conscientious objectors. Not all otherwise qualified Canadians are obliged to go to war. Even during periods of conscription, there were mechanisms to exempt conscientious objectors. (Whether they were effective or fair is another issue.)

Or consider physician participation in capital punishment in the United States. The American Medical Association is very clear that although capital punishment may be legal, “as a member of a profession dedicated to preserving life when there is hope of doing so, a physician must not participate in a legally authorized execution.” It defines participation broadly, to include directly causing death or assisting, supervising or contributing to the ability of another person to directly cause death, assessing competence, monitoring vital signs, certifying death, consulting with lethal injection personnel and other actions.

Both these scenarios provide for legally authorized killing and for protection of freedom of conscience; in the case of executions, there is a professional mandate against participation.

To be clear, MAID involves the intentional act of prematurely ending a patient’s life. It is more than simply withdrawing life-prolonging treatment or artificial life support; MAID is legalized killing. For physicians who object to euthanasia, killing a patient violates clear ethical and moral (sometimes religious) prohibitions, whether it is legal or not. Indeed, the position of the World Medical Association (WMA) is that euthanasia, defined as “the act of deliberately ending the life of a patient, even at the patient’s own request or at the request of close relatives,” is “in conflict with basic ethical principles of medical practice.” The WMA “strongly encourages all National Medical Associations and physicians to refrain from participating in euthanasia, even if national law allows it.”

Physicians were identified in the Carter case as appropriate gatekeepers for MAID precisely because their independent, professional judgment makes them uniquely capable of detecting a patient’s vulnerability. Professional judgment that detects vulnerability and professional judgment that assesses patients’ best interests are informed by the same ethical framework. Professional judgment is, by its very nature, holistic; it integrates education, clinical experience and, critically, a morally informed ethical framework. The state cannot pick and choose which aspects suit its purposes and jettison the rest.

As Justice Doherty of the Ontario Court of Appeal recognized in the context of medical marijuana in 2013, a doctor’s ability to deny a patient’s request on the basis of professional judgment — including the view that certain legal treatment options are medically contraindicated — is inherent in legislative schemes that entrust physicians with a gatekeeper role. After all, professional judgment is meant to provide the safeguards that were necessary preconditions for MAID’s decriminalization.

Decriminalization by the Supreme Court does not — indeed cannot — mandate that everyone’s conscience must align with its decision nor require that all physicians accept MAID as ethical or even good health care. Neither does it create a “right to access” that physicians are obliged to facilitate. When physicians lose their Charter-protected right to follow their conscience by state edict, it is not a mere personal loss.

Removing ethical boundaries for physicians erodes quality health care for patients

For some conscientiously objecting physicians, the effective referral requirement means they will stop accepting patients who are likely to request MAID, leave Ontario to practise where conscience is protected or leave the practice of medicine altogether, as has happened in Australia and Norway.

Mandating referral for MAID, aside from being unnecessary to facilitate access, incorrectly assumes that all patients want a physician who is willing to participate in MAID (directly or indirectly) or is willing to act against his or her own conscience by referring patients. In such a model of care, there is no room for patients who seek out health care professionals who practise medicine according to principles that reflect their own moral convictions, including those who  value human life unconditionally. Conscientiously objecting physicians enhance patient health care. As the CMA has stated, it is in a patient’s best interests for the physician to act as a moral agent rather than a technician devoid of moral judgment.

Physicians who were initially willing to provide MAID have found the experience “emotionally distressing” and “overwhelming” to the point that they cannot continue the practice. It is safe to assume that for the conscientious objector, the moral distress of participating either directly or indirectly would be exponentially greater. Not only does forcing physicians to act against their conscience cause distress, it desensitizes them to what are important moral and ethical cues as to the appropriate professional response to any given situation. It diminishes — and ultimately extinguishes — the internal barometer by which physicians exercise their professional judgment. Such moral integrity is foundational to a physician’s trustworthiness

In short, by demanding effective referrals, Ontario is forcing physicians to either leave the practice of medicine or abandon their ethical framework altogether. Neither is a good outcome for health care, or for patients in need of caring and competent doctors.

Ontario prides itself on being a province committed to inclusivity, diversity and human rights. It should not stand as a global anomaly in failing to safeguard freedom of conscience, freedom of religion and religious equality in this context. Now is the time for Ontario to reflect the international consensus that conscience is worth protecting.

The authors represent three organizations jointly intervening in Christian Medical and Dental Society et al. v. College of Physicians and Surgeons of Ontario (CPSO), a case that involves a constitutional challenge to the CPSO’s “effective referral” requirement. The case is expected to be heard by the Ontario Divisional Court in June 2017.

Photo: Shutterstock. By Andrei R

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Deina Warren
Deina Warren, LL.B., LL.M., practices constitutional, human rights and criminal law in Ontario.
Derek Ross
Derek Ross is a constitutional lawyer and executive director of Christian Legal Fellowship, a national legal association that has intervened as a friend of the court in cases related to assisted death and the Charter.

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