A Warning from Canada on Assisted Suicide: Physicians’ Conscience Rights at Stake

By Lynn Wardle | March 18, 2016 | 3:14 PM EDT

Linda Jarrett reads through notes at Dying with Dignity offices in Toronto. Canada's highest court, unanimously struck down a ban on doctor-assisted suicide for mentally competent patients with terminal illnesses. (AP Photo/The Canadian Press/Chris Young)

Historically, assisted suicide (aiding a person to take his or her own life) was prohibited by the common law in Canada, as in all common law jurisdictions. Indeed, at common law suicide resulted in forfeiture of all goods and chattels of the suicide victim to the state.  A person who assisted a person to commit suicide also committed a felony. 

Prohibitions against attempting suicide and assisting suicide were codified in Canada in 1892.  The attempting suicide law was challenged as infringing upon the protection for individual liberty in section 7 of the Canadian Charter of Rights and Freedoms, but the criminal prohibition against assisted suicide was upheld by the Supreme Court of Canada in Rodriguez v. British Columbia (Attorney General) in 1993.

The statutory prohibition of attempting suicide was repealed in Canada in 1972.  However, the criminal prohibition against assisting a person to commit suicide remained in Canada.

In February 2015, the Supreme Court of Canada ruled that the prohibition of medical assistance in dying violates the Charter of Rights and Freedoms. Carter v. Canada (Attorney General), 2015 SCC 5.  Now Parliament is working to codify the Carter ruling.

A special parliamentary committee was appointed to consider how to reform the law.  On February 25, 2016, the Special Joint Committee on Physician-Assisted Dying delivered to the Parliament of Canada its Report on “Medical Assistance in Dying: A Patient-Centred Approach, February 2016, 42nd Parliament, 1st Session.”

The Report contains 21 recommendations.  Some of them are unobjectionable, but some are troubling to some thoughtful observers and medical ethicists, and a few are dangerously disrespectful of the rights and consciences of marginalized populations. The Report evades, brushes aside, or bulldozes over some very serious ethical issues.

One of the most disturbing recommendations in the Report proposes that all Canadian physicians have a legal duty either to provide Medical Assistance in Dying (“MAID”) or to provide an “effective referral” to someone who will provide MAID. 

Recommendation 10 in the Report pays lip service to “respect[ing] a health care practitioner’s freedom of conscience while at the same time respecting the needs of patient who seeks medical assistance in dying.” This recommendation correctly recognizes that there can be a direct conflict of rights and interests between a patient who seeks MAID and a health care provider with ethical or moral standards opposed to providing MAID. 

However, Recommendation 10 subordinates the values, rights and ethical interests of the health care provider who objects to providing MAID to the wishes of a patient who seeks MAID.  It concludes: “At a minimum, the objecting practitioner must provide an effective referral for the patient.”  

While many practitioners who object to personally providing suicide assistance might not object to referring a patient to someone else for that assistance, others may have strong moral and ethical objections to participation by referral in MAID.  Why are their rights ignored?

Additionally, the Reported proposed that all publicly-funded health care institutions should be required to provide medical assistance in dying.  That excludes a significant category of institutional health care providers (especially many religiously-affiliated institutions) from protection of their ethical standards. 

The Supreme Court of Canada stated in Carter, “[i]n our view, nothing in the declaration of invalidity which we propose to issue would compel physicians to provide assistance in dying.” Carter, at para. 132.

Of course, the issue is what physician action constitutes “assistance” in suicide or MAID. 

The first question is “who decides” what physician action constitutes giving “assistance” in suicide or MAID.  As that is a medical decision and as Recommendation 10 is intended to protect the physician’s rights of conscience and ethical integrity, one would reasonably expect that normally the physician would decide whether referring a patient to another health provider for MAID amounts to providing “assistance” in suicide or MAID.  After all, the exception is created to protect the conscience of health providers who have ethical or moral or religious objections to assisting in providing MAID. 

However, the Parliamentary committee opted (without explanation) to adopt a general governmental standard (rather than an individualized physician standard) for whether making referral for MAID constitutes giving “assistance.”   Then, it decreed that giving an “effective referral” to a MAID provider would not amount to “assisting” in suicide or in MAID.  That shows the bias of the Committee and its disrespect for the conscience rights of providers.

The Committee Report calls for national strategy for palliative and end-of-life care. Many witnesses testified about the disturbing short-comings in the provision of adequate palliative care in the Canadian healthcare system, which may be a cause of many requests for MAID. If adequate palliative care is made available, that would alleviate the type of terrible pain that drives some people to seek death as a method of “pain relief.”

The Report also calls for appropriate mental health supports and services for those seeking assisted dying.  That, also, may eliminate some requests for MAID. 

These two recommendations are laudable. The intellectual debates about assisted suicide (about “dignity” and “autonomy” and the “right to die,” etc.) often mask very tragic practical issues about resources and access to them.  It is the pain, the suffering, the untreated mental illness, the absence of affordable and available palliative care, and other alternatives that often drive persons to consider suicide and to seek assistance in dying.

Legalization of suicide and MAID has long been recognized as a “slippery slope” to the disposal of the most dependent, needy, marginalized, and unwanted in a society.  Who can forget the abuses that grew out of similar policies adopted in the 1930s in Germany?  Dr. Leo Alexander, a medical advisor to the Nuremberg prosecutions identified a direct link between Germany’s early euthanasia program (for the disabled, etc.) and the “final solution” mass murder of Jews, Poles, and other “undesirables” that resulted.

Protesters advocate for physician-assisted suicide in front of the Supreme Court. (AP Photo/Charles Dharapak)

MAID is a slippery slope to the kind of social and medical ethics that corrupts and erodes the core virtues essential for survival of a free, liberal society.  Our nations is founded on respect for the equal worth and inalienable value of all human life.  All human lives have inherent worth.

The future of republican self-government in Canada is implicated by legalization of MAID in Canada.  Since these ideas are transportable, it would be wise to pay attention to what is happening in Canada. Already, six American states (CA, OR, WA, MT, NM and VT) have recently legalized MAID.

Lynn D. Wardle is the Bruce C. Hafen Professor of Law at Brigham Young University.  He is author or editor of numerous books and law review articles mostly about family, biomedical ethics and conflict of laws policy issues. His publications present only his personal (not institutional) views.