13 Nov Doctors can’t refuse to help a patient die — no matter what they say
Although it brings up a host of thorny questions, the matter of physician-assisted dying is being made more difficult than it needs to be, because self-interested opponents — like the Canadian Medical Association — are striving to make it byzantine.
If the Trudeau government doesn’t see through their self-interested fabrications, it could be sidetracked into bad policy.
Contrary to what detractors say, the Supreme Court of Canada’s decision legalizing physician assisted dying as of February 2016 is not unclear — it’s one of the most lucid SCC pronouncements ever. It says that when a patient — who has the wits to make a free and informed choice — has a “grievous and irremediable medical condition” which “causes enduring suffering that is intolerable to (that) individual”, he or she may choose to die with medical help.
The legal process that brought us to this point took years. Judges heard breathtaking amounts of evidence and arguments — including courtroom interventions from two dozen civil rights, religious, patient and medical groups. Yet many of the very groups that had their day in court are now complaining they weren’t consulted.
That’s nonsense. It makes them look like sore losers — none more so than the Canadian Medical Association.
The CMA has never concealed its corrosive hostility to the idea of physician-assisted death. It all but threatened that if the Court legalized the practice, doctors would rise up to block it. As the CMA’s past president said, physician-assisted dying “has no prospect of implementation unless physicians in sufficient numbers … are persuaded that (it) is ethical, practical, and in accordance with existing medical standards”.
And now, true to its threat, the CMA is not-too-subtly prodding doctors away from physician-assisted dying.
The CMA recently released recommendations to doctors on assisted dying, containing this bold advice: “Physicians are not obligated to fulfill requests for assisted dying.” Worse, doctors who conscientiously object to assisting their patients aren’t even obligated to find them a willing doctor, and the CMA says that sending those patients away with information on their “options” is enough. The CMA readily admits that what the organization is proposing “does not facilitate access to assisted dying. It facilitates access to information,” and gives as examples “palliative and spiritual care.”
I think the CMA’s position is cowardly and stupid. If physicians are not duty-bound to assist patients with what the Court pointedly labeled “physician-assisted dying”, then who does the CMA think should be obliged to help — elves, maybe? And while it is great for doctors to provide information and options, that is but a small part of what society trains and licenses them to do.
Granted, some doctors conscientiously object to assisted dying — but if the situation arises, they cannot refuse to help their patients access what is now part of the legal standard of care. Anyway, those doctors whose conscientious objection to assisted death is absolute could always migrate into a specialty where the subject would never come up: radiology, dermatology, pathology, obstetrics, surgery or almost any type of medical research, for example.
So why is the CMA fighting this? Simply put, some of its members are bigoted against patients who choose to die — and the CMA is siding with those bigots over their patients.
Across Canada, laws forbid service providers from discriminating against the disabled. In Ontario, the Human Rights Code defines a “disability” in broad terms that include serious illnesses — certainly any “grievous and irremediable” illness, to borrow the Supreme Court’s phrase. Thus, when doctors offer the full standard of care to patients — but not to disabled patients, who get a lesser standard of care because it excludes assisted dying — that is discrimination.
And what if a doctor were to discriminate? That doctor would be like Kim Davis, the bigoted clerk of Rowan County, Kentucky, who had a duty to assist newlyweds but denied homosexuals marriage licenses after the U.S. Supreme Court legalized gay marriage. Doctors likewise have a duty to assist patients — including with assisted dying — because they too are publicly licensed, publicly funded service providers. If they balk, as Ms. Davis did, they must face the legal consequences (in her case, jail).
The CMA knows this to be true. In fact, the CMA asked for my written opinion as a professor, which I gladly gave. But when I asked the CMA if it was unwise to endorse discrimination against disabled patients on grounds of conscience or religion (how would the CMA rule out discrimination against gay or female patients?) the organization bristled. In an email to the CMA’s top leadership that I was not meant to see, the CMA’s vice president of medical professionalism proposed “blocking further emails” from me, which others supported.
Canada’s medical profession loses credibility when it behaves in such a closed-minded, defensive way. The Trudeau government should therefore politely discount the CMA’s advice, and take its cues from the more thoughtful, wise Supreme Court. But instead of asking the judges for a few extra months to implement last year’s ruling, the government should take the opportunity to put a new reference question before the Court.
For example, the government could ask for the Court’s opinion on conscientious objection, and any other issues that doctors find hard to swallow (e.g. whether comatose patients may, by advance written agreement, choose assisted death). Not only would a reference question judicially (and judiciously) settle these issues, but it would do so with the least possible political rancour — whether from the Official Opposition or self-interested opponents like the CMA.
Amir Attaran is a professor in the faculties of Law and Medicine at the University of Ottawa
The views, opinions and positions expressed by all iPolitics columnists and contributors are the author’s alone. They do not inherently or expressly reflect the views, opinions and/or positions of iPolitics.
Source: iPolitics, Canada