TORONTO, ON March 30, 2017 – CCRL president Phil Horgan, executive director Christian Elia, along with Toronto-based barrister and solicitor and CCRL member Catherine Pawluch appeared before a legislative committee to speak against the infringement of freedom of religion and conscience of healthcare workers caused by the implementation of assisted suicide and euthanasia and the requirement for doctors to make an “effective referral” to another physician when refusing to be complicit in killing a patient.
Bill 84, “An Act to amend various Acts with respect to medical assistance in dying” is Ontario’s framework for implementing assisted suicide and euthanasia. On March 23, other intervenors including Cardinal Collins, Archbishop of Toronto, spoke of the need to amend Bill 84 to include protection for healthcare workers who refused to participate in the act of mercy killing, including the compulsion to make an “effective referral” to another willing party.
Here is the CCRL’s written submission.
Introduction
The Catholic Civil Rights League (“CCRL”), formed in 1985, is a national lay Catholic organization committed to working with the media to secure a fair hearing for Catholic or Christian positions on issues of public debate, countering anti-Catholic defamation, and educating decision-makers or intervening in court challenges in support of law and policy compatible with a Christian understanding of human nature and the common good. The CCRL has over 25,000 members drawn from all walks of life and from all parts of the country.
The Faith and Freedom Alliance (“FFA”), established in 2004, is a federally-incorporated, national, non-denominational Christian organization. It seeks to promote freedom of religion, conscience, and expression, under constitutional and human rights legislation across the country. The FFA has a large, nationally dispersed membership base composed of a number of Christian organizations, of various denominations, as well as individuals. In addition, FFA’s board of directors is comprised of individuals who hold leadership positions in a number of diverse Christian organizations.
A significant goal of the CCRL and the FFA is to advocate for law and policy that respect, support and encourage a robust understanding of religious beliefs, values and cultures, including Christianity, in the public sphere. The CCRL and FFA view such law and policy as essential elements of a free and democratic, and tolerant and rich multicultural Canadian society. The CCRL and FFA promote their Christian values and objectives through education, conferences, public forums, seminars, publishing newsletters or journals, establishing and supporting local groups and chapters, and various other means of education and advocacy.
The CCRL and the FFA, together with the Protection of Conscience Project, are joint interveners in the upcoming judicial review hearings, in support of Christian doctors who are challenging the “effective referral” regime now implemented by the College of Physicians and Surgeons of Ontario, to be argued in June.
We support previous submissions made last week to this committee in support of a robust understanding of conscience rights, and we hope in the limited time available that we can avoid repetition of previous submissions.
There are several concerns in the current bill. For example, we share the concerns expressed by Mr. Brian Beamish, the Privacy Commissioner for Ontario, from his presentation on March 23, on the need for transparency in reporting and access to information on assisted suicides. The effort to suppress such information is opposed.
However, we have chosen to focus on two major concerns: the lack of conscience protection for health practitioners; and the inherent problems with a self reporting regime.
Lack of Conscience Protection for Physicians and Health Care Workers
The Supreme Court of Canada, in Carter stated that, “Nothing in this declaration would compel physicians to provide assistance in dying”. However, the federal government stepped back from imposing conscientious protection in its Bill C-14.
The current bill appears to accept, without serious engagement, the current provisions enacted by the College of Physicians and Surgeons in its various policy proclamations over the past two years, which while recognizing that a physician may have moral or conscientious objections to certain procedures, including medical assistance in suicide, there remained an obligation on such a physician to provide an “effective referral” to a patient seeking such assistance.
The first policy is CPSO Policy Statement No. 2-15 Professional Obligation and Human Rights, which requires that:
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. […] Physicians must provide care in an emergency, where it is necessary to prevent imminent harm, even where that care conflicts with their conscience or religious beliefs.[1]
The second policy, CPSO Policy No. 4-16 Medical Assistance in Dying, similarly requires an objecting physician to provide an “effective referral” for euthanasia or assisted suicide.[2]
There is a need to unpack the history of the deliberations which gave rise to these formulations (which are the subject matter of two court applications).
We also wish to comment on an analytical approach to frame the competing rights issues which arise as between a patient who seeks assisted suicide, and an objecting physician.
The process of CPSO development of the original Policy Statement 2-15 included an initial round of consultations as of August, 2014, in which the great majority of 1,270 submissions favoured a robust recognition of physician conscience rights. In that same process, an anonymous poll was conducted, where the question was asked, “Do you think a physician should be allowed to refuse to provide a patient with a treatment or procedure because it conflicts with the physician’s religious or moral beliefs?” Of 32,912 votes cast, 77 % (25,230) voted in favour, while 23 % (7,616) opposed, and less than 1 % (66) voted “don’t know”.
In a consultation on the draft policy released in December, 2014, an additional 15,977 submissions were received, of which approximately 10 per cent came from members of the CPSO. The vast majority of those submissions sought that physician conscience rights be respected. It was further acknowledged that roughly 10,000 of these submissions were received after February 11, following the date of an initial review of the first round of submissions. It remains unrealistic to consider that the post February 11 submissions were properly assessed before the Executive Council of the CPSO adopted the new policy provisions on March 6, 2015.
In a more expedited process to bring forward the Medical Aid in Dying Policy guidelines, the CPSO sought input in December, 2015, and received 2194 submissions by its expedited January 13, 2016 deadline, including 341 comments posted on the website’s discussion page, 546 online surveys, and a petition signed by 1307 individuals. The great majority of responses again sought protection for religious and conscience protection for physicians.
The CPSO published its interim guidance in December, 2015. By May 31, 2016, CPSO Policy No. 4-16 Medical Assistance in Dying was passed, and subsequently enacted in June, 2016, without further public consultation. All of the published guidelines retained the “effective referral” passage, despite the submissions received after the original guidance document.
In the current litigation, it has been learned that the Registrar of the CPSO, Dr. Rocco Gerace, spoke to the External Panel established by the federal government to address the implementation of the Carter decision, on November 6, 2015, together with other representatives of provincial Colleges of Physicians and health professionals.
In that presentation, secured by the process of access to information, which occurred prior to the December, 2015 delivery of the first interim guideline to the profession following Carter, and prior to any public consultations, Dr. Gerace stated as follows: “Without wanting to be contrary, I think the focus should be patients’ rights and not physicians’ rights. We are here on behalf of the public and not the profession.” Later, he stated: “And we’ve been fairly prescriptive in setting out an obligation for a doctor to make an effective referral. And, we think that’s absolutely essential in these areas because we know in the past, around issues such as abortion, that the profession that members and, keep in mind that this is a very small number of physicians have, have really prevented access.”
The federal panel’s final report confirmed that the Ontario position was in favour of effective referral, but the language used by the Ontario Registrar in his submission to the federal panel was indicative of a “mind made up” on the MAID position, presumably based on the previous March 2015 policy. It further disclosed a lack of true balancing of competing rights claims, and suggests that the Ontario Registrar opposed objecting physicians as individuals who intended to impose their beliefs over their patients’ beliefs, when the objections raised in the context of the two CPSO policies were to avoid being compelled to make an effective referral.
Accordingly, we submit that the legislature needs to address this pre-disposition of the CPSO, which in effect allowed the effective referral practice guideline to trump the conscience rights of physicians, in response to the substantial change in the law imposed by Carter, and later, Bill C-14.
When a delegated authority, such as the CPSO, exercises its judgment without a true balancing of competing rights, there is a role for the legislature to intervene to correct that balance.
We further submit:
- Canada’s democratic and constitutional tradition promotes pluralistic liberalism where disagreements and different beliefs are encouraged and promoted. A robust understanding of freedom of conscience is necessary for such protection.
- While freedom of conscience is not absolute, any principled and coherent limitation of such freedom, must account for distinctions between perfective and preservative freedom of conscience: between the freedom to do what is perceived to be good, and the freedom to refuse to do what is perceived to be evil. Limitation of the former differs significantly from the latter. The “effective referral” system proposed by the CPSO policies fails to make this distinction.
- Specifically, the “effective referral” system violates physicians’ preservative freedom of conscience, by compelling physicians to do what they believe is wrong and to punish them if they refuse. Such compulsion treats physicians as a means to an end – violating their freedom of conscience and essential dignity.
While our legal argument in the upcoming court cases makes reference to Immanuel Kant, Jacques Maritain, John Paul II, and Martin Luther King, among others, it may be helpful to limit our discussion today to an analytical framework that may assist in dealing with this issue.
Freedom of conscience is exercised in two different, complementary ways: to pursue an apparent good or to avoid an apparent evil. Some decisions may involve both choices. This analysis of conscientious judgment’s structure is independent of any specific religious or ideological perspective.[3] From this structure, we distinguish perfective and preservative freedom of conscience.
Distinguishing between exercising perfective and preservative freedom of conscience, and recognizing the more fundamental and limited nature of preservative freedom of conscience, provides an objective, analytical framework for an analysis grounded in the nature and exercise of this freedom. This analytical framework is not tied to a particular moral or ideological viewpoint.
A person exercises perfective freedom of conscience by pursuing an apparent good in accordance with his or her conscience. For example, physicians who provide euthanasia, because they believe it benefits patients, can be motivated by perfective freedom of conscience. “Perfective” freedom of conscience is independent of a particular definition of good. For example, a moral pluralist would observe that pursuing a chosen good actualizes personal autonomy and contributes to his or her self-fulfillment. In this way, accommodating expressions of perfective freedom of conscience demands more from society.
One exercises preservative freedom of conscience by refusing to participate in an apparent wrong.[4] For example, through conscientious objection to mandatory military service,[5] a person can preserve one’s own integrity and autonomy even if the refusal does not achieve the personal growth that may be possible through acts of generosity, charity or assistance. A moral pluralist would observe that this refusal preserves rather than develops personal autonomy.
Preservative freedom of conscience is more fundamental, and more limited, than perfective freedom of conscience. The integrity preserved by the former is a precondition for the exercise of the latter.
Limiting perfective freedom of conscience prevents people from doing the good that they wish to do. This may violate their freedom of conscience, which is why our courts demand that such restrictions must be demonstrably necessary, minimally impairing and strictly construed.[6] Even if this is a violation, it is a violation that will be less extreme than a violation of preservative freedom of conscience.
Limiting preservative freedom of conscience, by forcing people to do something they believe is wrong, has a graver effect. The gravity of this violation can be explored through considering the effects coerced participation in wrongdoing.
We submit that to comply with the CPSO policies, a physician is compelled to participate in a wrong. The state or the patient chooses, and they bear the moral responsibility. But this ignores the essential unity of the human person who experiences moral culpability and responsibility. It disregards the response of the whole person.
Forcing someone to participate in what is assessed as wrongdoing demands the submission of intellect, will, and conscience, reducing the person to the status of a thing, to a tool to be used by others.
Servitude cannot be reconciled with principles of equality. This is an assault on human dignity that deprives physicians of their essential humanity.[7]
The CPSO policies deliberately deprive physicians of meaningful choices and coerce physicians to participate in homicide, with the threat of punishment if they refuse. This violation is incompatible with traditional civil liberties advocacy, which guarantees the protection of life, liberty, and security of the person against state power.[8]
In applying this framework, requiring a physician to make an “effective referral” demands that physicians suppress their intellect, will, and conscience. The CPSO policies reduce physicians to a means to an end; such subordination cannot be reconciled with principles of equality and dignity.
Summary
If a limitation of preservative freedom of conscience is contemplated, it should only be as a last resort, and only in the most exceptional circumstances, an example of which we cannot at present contemplate.
The limitation should be justified on a case-by-case basis, and cannot be justified in advance by a general rule through legislation, regulation or professional guidelines. There can be no freestanding legal compulsion or duty to do what one believes to be wrong.
Limitations of preservative freedom of conscience cannot be justified by an intention to privilege perfective freedom of conscience. In this context, a patient’s perfective freedom of conscience cannot be used to trump or undermine a physician’s preservative freedom of conscience.
Recommendation
We submit that The Regulated Health Professions Act, 1991 be amended in section 29 to provide that no member can be compelled to participate in medical assistance in dying if to do so would violate their conscience or religion, and that such participation would be understood to include performing, assisting in the performance, of or making a referral for medical assistance in dying.
Problems with a Self Reporting Regime, as Proposed
The other startling provision in the current bill is the unsatisfactory proposals for self-reporting of assisted suicides.
The experiences from other jurisdictions provides a helpful warning of the prospect of abuses that can follow such modest demands proposed by the bill. The dangers to frail elderly or the disabled are particularly evident, if the doctor or nurse practitioner merely reports a death by assisted suicide, or in some cases by reference to an underlying illness which was not the cause of death, in the death certificate or submission to the coroner, after the death has occurred.
Reports from the Quebec Ministry of Health have confirmed that there have already been numerous occasions where there has been inadequate compliance with the demands required by the law in place there.
A minimal starting point in this area would be to demand that the doctor or nurse practitioner who intends to provide assistance with the death of the patient be required to provide the documentation, or a summary of same, that identifies the particular circumstances and confirmation of the intention to proceed, at the time of the original request, for which a second independent opinion has presumably been secured.
That report, provided 10 days in advance of the execution of the directive, via email to the coroner’s office, would provide a record with the coroner, from which a review could be undertaken to ensure compliance with the demands of the Criminal Code, or at least a record of what has transpired in the event questions may arise.
Further provisions should also be considered in this context, so as to allow a more formal review to be undertaken if there is evidence of abuse of the process, prior to fulfilment and execution of the “competent” patient demand.
If the patient is freely making such a demand, the provision of this reporting merely expedites the filing with the coroner’s office, prior to the patient’s death.
This data would also be more easily tracked in the circumstances of record keeping, or to assist long term care facilities, nursing homes, or other facilities that the demand for assisted suicide has been properly “registered” with the coroner prior to the final act.
It is not hard to contemplate circumstances where a physician or nurse practitioner chooses not to report a failure to comply with the requirements, after the fact. Such circumstances should not be alleviated by inadequate reporting mechanisms.
Recommendation
Section 10.1 of the Coroners Act be amended to reflect the requirement that a report be filed on the completion of the original patient request for assisted suicide, failing which the procedure should not proceed. A second report following the actual death of the patient would then be filed to complete the statutory requirements.
Likewise, the proposed change to s. 21 of the Vital Statistics Act should also reflect that compliance with these revised reporting requirements be obtained, in order to be relieved from further inquiries by the coroner. It is unclear in the existing provision how compliance is achieved, if there is only one report, post death. The proposed change suggests that the coroner make a decision on whether further reporting may be required. As it stands, the relief from compliance with the provisions of s. 21 (5) and (6) is based on the determination of the coroner, based on one submission after the death of the patient, presumably in the absence of this data. How does the physician or nurse practitioner avoid the further compliance with other provisions of s. 21(5) and (6) prior to this review by the coroner?
More importantly, the current proposal of providing only one report after the death of the patient by assisted suicide could lead to any number of abuses, or non-compliance, for which a physician or nurse practitioner may be tempted to avoid reporting.
We remain concerned that even with these amendments, there will still be risks inherent with improper compliance with the provisions of the Criminal Code, for which a self reporting regime may not be sufficient to address. The experience of the Quebec Ministry of Health may be instructive in this regard, as it identified numerous such deaths in the past year as being “non-compliant”.
All of which is respectfully submitted,
Philip H. Horgan
For the Catholic Civil Rights League and the Faith and Freedom Alliance
[1] The College of Physicians and Surgeons of Ontario, Policy Statement #2-15 “Professional Obligations and Human Rights” (March 2015), online: <http://www.cpso.on.ca/policies-publications/policy/professional-obligations-and-human-rights>.
[2] The College of Physicians and Surgeons of Ontario, Policy Statement, Policy Statement #4-16, “Medical Assistance in Dying” (June 2016), online: <http://www.cpso.on.ca/Policies-Publications/Policy/Medical-Assistance-in-Dying>.
[3] Stephen J. Genuis & Sean Murphy, “Freedom of Conscience in Health Care: Distinctions and Limits” (2013) 10:3 Bioethical Inquiry 347 at 348.
[4] This notion is reflected in familiar maxim “do no harm” – a principal precept in bioethics.
[5] Other examples included the refusal to eat meat as a matter of conscience in Maurice v Canada (AG), 2002 FCT 69, 215 FTR 315 or the Guantanamo nurse who refused to force-feed prisoners
[6] R v Oakes, [1986] 1 SCR 103, [1986] CarswellOnt 95 at paras 73-75.
[7] Ibid.
[8] Charter, s 7.
About the CCRL
Catholic Civil Rights League (CCRL) (www.ccrl.ca) assists in creating conditions within which Catholic teachings can be better understood, cooperates with other organizations in defending civil rights in Canada, and opposes defamation and discrimination against Catholics on the basis of their beliefs. The CCRL was founded in 1985 as an independent lay organization with a large nationwide membership base. The CCRL is a Canadian non-profit organization entirely supported by the generosity of its members.
For further information:
Christian Domenic Elia, PhD
CCRL Executive Director
416-466-8244
@CCRLtweets