Monday, October 24, 2016
Wednesday, October 19, 2016
Principles-Based Recommendations for a Canadian Approach to Assisted Dying
Policy on Medical assistance in Dying
5.2 Conscientious objection by a physician
CMA’s position on conscientious objection aims to ensure two equally legitimate considerations: (1) protection of physicians’ freedom of conscience (or moral integrity) in a way that respects differences of conscience and (2) effective patient access to a legally permissible medical service.
Physicians are not obligated to fulfill a patient’s request for assistance in dying but all physicians are obligated to respond to a patient’s request. This means that physicians who choose not to provide or participate in assisted dying (1) are not required to provide it or to participate in it or to refer the patient to a physician or a medical administrator who will provide assisted dying to the patient and (2) are required to fulfill their duty of non-abandonment by responding to a patient’s request for assistance in dying. There should be no discrimination against a physician who chooses not to provide or participate in assisted dying.
Physicians are obligated to respond in a timely fashion to a patient’s request for assistance in dying. This means that physicians are obligated to, regardless of their beliefs:
i. provide the patient with complete information on all options available, including assisted dying;
ii. advise the patient on how to access any separate central information, counselling and referral service; and
iii. transfer the patient to another physician or another institution if the patient requests it for the assessment and treatment of the patient’s medical condition and, if the patients meets the eligibility criteria, provision of assistance in dying.
Physicians are expected to make available relevant medical records (i.e., diagnosis, pathology, treatment and consults) to the attending physician when authorized by the patient to do so; or, if the patient requests a transfer of care to another physician and the patient is being transferred to the care of another physician, physicians are expected to transfer the patient’s chart to the new physician when authorized by the patient to do so.
Physicians are expected to act in good faith, never abandon or discriminate against a patient requesting assistance in dying, and not impede or block access to a request for assistance in dying. Physicians should inform their patients of the fact and implications of their conscientious objection. No physician may make a commitment not to seek assisted dying a condition of acceptance or retention of a patient.
The federal legislation does not address how conscientious objections of physicians, nurse practitioners, or other healthcare providers are to be managed. In the Carter case, the Supreme Court of Canada noted that the Charter rights of patients and physicians would have to be reconciled. Physicians who have a conscientious objection to providing medical assistance in dying are directed to comply with the College’s expectations for conscientious objections in general, set out in the Professional Obligations and Human Rights policy.
These expectations are as follows:
The federal legislation does not compel physicians to provide or assist in providing medical assistance in dying. For clarity, the College does not consider providing the patient with an ‘effective referral’ as ‘assisting’ in providing medical assistance in dying.
Friday, February 19, 2016
Monday, November 9, 2015
Debra Selkirk the widow of Toronto businessman Richard Selkirk is preparing a constitutional challenge to the practice that denied her husband access to a liver transplant because he was an alcoholic who had only been “dry” for six weeks. CBC Radio ran this story, with ethics commentary on Friday November 6th. http://www.cbc.ca/radio/thecurrent/the-current-for-november-6-2015-1.3307075/widow-of-alcoholic-challenges-policy-for-denying-husband-liver-transplant-1.3307145 The patient was reportedly denied access to a liver transplant on the grounds that he had not been “dry” long enough. He died shortly thereafter. This restriction on access to liver transplants is pretty common across North America. Is it fair? Is it a justifiable restriction on access to care? What are good reasons for denying a person access to necessary medical care? Let’s look at some of those reasons and who gets to decide.
The best reason for not providing a person with a treatment is that the treatment will not work. That is, if the treatment would be medically futile – if it cannot provide the physiologic effect for which it is intended, then it does not need to be offered. (This needs a footnote, an exception is probably a resuscitation attempt. The reasons for this are complicated, it is probably associated with the idea that the standard of care in a hospital is that if a person arrests in hospital he or she will be resuscitated unless he or she has said otherwise.) Going back to not offering treatments on the grounds of medical futility, I would argue further that it should not be offered. (On the grounds that doing something that cannot work is a waste of resources, resources which are inevitably scarce.) In addition, the decision that a treatment cannot bring about the physiologic effect for which it is intended is an expert decision that belongs to physicians and care providers – rather than patients. This is clear in theory, but less so in practice. In practice treatments rarely cannot work, far more often they are unlikely – or even vanishingly unlikely to work. That leads to a rather different question – a cost-benefit decision, when is a treatment not worth offering – either because the likelihood of benefit is so low, or the cost is so high – or both?
Scarce resources and cost/benefit decisions
Cost benefit decisions of this type are amongst the most difficult for the health care system. Whether a treatment is “worth” the cost may very well depend on one’s perspective. There are also real puzzles of what constitutes a “benefit” and what benefits should count. For example some people would argue that continued physical life, even on life support, even if there is no evidence of interaction with the patient’s environment and even if the prospects for recovery are vanishingly remote would constitute a benefit. Others would say this is a benefit in name only, and certainly not a benefit worth funding from scarce health-care resources. Further, if person “A” accrues a given benefit for 5 years and person “B” the same benefit for 10 years, at the same cost then presumably we should fund person “B’s” treatment before person “A.” But that would have the effect of systematically favouring the young in health care – and do we really want to build in that bias to decision-making? These resource allocation questions are also those where authority for decision-making is most blurred. A cost-benefit, resource allocation decision is not simply a medical decision, nor is it just a matter of the personal preferences of the patient. At stake is what a community is prepared to pay for – so ultimately these decisions are small “p” political decisions, yet they are rarely identified or made as such.
Evidence and standards of practice
There are other reasons for denying access to a particular treatment or therapy, standards of medical practice and evidence are always relevant, and of course, on the other side, a patient can refuse care, and can do so either explicitly or by creating conditions that make it impossible to provide care. Do any of those reasons apply in the case of liver transplants and persons with alcoholism? The first question would concern the possibility that a liver transplant would be ineffective for a person who continues to drink or who has not demonstrated sobriety for six months. The evidence seems to be lacking. While it is true that for a liver transplant to be successful the patient would need to follow a regimen of immunosuppressive drugs and other care post-surgery and while it is also true that certain patients – on lifestyle grounds may be incapable of following such a regimen that is not the case for all people who have been diagnosed with liver failure as a result of alcohol consumption. So, rather than a six month rule or policy what would be required would be a careful assessment of each prospective patient in his or her actual situation.
Could it be a resource allocation decision?
Cadaver livers available for transplant are certainly scarce. But the issue of fairness in the first instance really only concerns whether the patient will get onto the list. It could also be that certain patients expand the liver donor pool by bringing with them potential live donors. Even if there was evidence that a person continuing to drink would make the transplant less effective, that is it might bring a shorter period of life, even then it is not clear that that should result in a denial of access to care. If we wish to treat persons equally we have to accept the idea that each individual’s life may well be of infinite value to that individual, in that respect we are all the same. The general approach in Canadian health care is that we are evaluated on the basis of our need and our capacity to benefit.
Bad reasons for denying care
We do not deny health care on any of the prohibited grounds for discrimination under federal or provincial human rights legislation. Nor do we deny care based on ability to pay.
Should we deny care on the grounds of personal responsibility for health status?
We generally take the view that ill health and disease are unfortunate facts of human life. No-one wants to be sick, or unwell so if you are it is a misfortune and the community will provide the health care you need to help you recover. Typically, we take the view that people are not responsible for their ill-health. But what if they are? There are many illnesses, diseases, and indeed accidents that occur as a direct result of the actions people perform. Smoking causes lung cancer (and heart disease and…) overeating is connected to obesity and diabetes, alcohol consumption with liver disease, and, of course, skiing with fractures, hockey and football with concussions and so on. Leaving aside the issue of whether an “addiction” allows you to escape personal responsibility there are plenty of examples of cases where individual choice has negative health consequences.
Should we be held responsible for those choices? The answer, of course, has to be yes. I must be responsible and accountable for the choices I make in my own life and that must include choices about diet, exercise, smoking, alcohol and so on. And certainly, as a community we should be reinforcing and promoting that individual accountability.
But can or should a publicly funded health care system hold us accountable by denying care? Here, I think the answer has to be no. I do not see how health care providers (or anyone else for that matter) could possibly become the arbiters of the deserving and underserving sick. Were you driving too fast when the crash occurred? When did you stop smoking – have the last drink? How often do you exercise…? What would it look like to deny care under those circumstances? This would mean that we would refuse care to those who were suffering and dying, it would mean that we would turn people away from our Emergency Departments, it would mean that we would turn our backs on those in need.
I would not wish to be part of a community that made those choices. But, health care resources are always limited, and that always has the effect of meaning that if we do “this” then there is some other good “that” that cannot be performed. Those choices must be made, but they must be made openly and on grounds we understand and accept.
Debra Selkirk is forcing that discussion onto the public stage, and thanks to her for that.
Rob Butcher. November 2015
Thursday, September 24, 2015
Thursday, February 19, 2015
The College of Physicians and Surgeons of Ontario (CPSO) has a policy draft out for consultation on Professionalism and Human Rights. Though the policy would directly apply only to physicians the topics raised in the policy are significant for all health care professionals.
The nature and sources of moral – or ethical obligation.
I will use the words "moral" and "ethical" interchangeably, some people wish to maintain a distinction between "moral" as something more within the personal domain, and "ethical" as something more public or social, but as we will see in this piece that distinction won't help us, at the end of the day there is just you, or me, deciding what you or I will do. We have a variety of sources for our moral or ethical commitments. I am a member of a family, and a community, I live in a shared environment, each of these bring moral obligations. I have obligations to my children, my partner, and my extended family and I have those obligations because of my relationships with those people. I have an obligation to my community and environment because I share that space with others. Some would argue that I have ethical obligations to respect the law and some people have moral convictions that stem from their religious beliefs, and – and this is the issue here, many of us have ethical obligations that stem from our roles as professionals. (Of course those preceding couple of sentences could be a book chapter – or indeed the book itself, this is all contested territory, but the point I want is that our moral obligations legitimately come from a variety of sources.) Most of the time that all fits more or less neatly together. We typically choose our relationships, religious beliefs and professions in accordance with our deepest values and we can often juggle the pieces to fit. But not always.
An example of conflict
Some years ago, in the aftermath of SARS many health care organizations started to develop pandemic plans. In the context of those plans issues of staffing arose, what would happen if there was a pandemic and health care professionals were fearful for their own safety? I was summonsed, along with the other ethicist working in the area and we were told by a senior hospital administrator that we were to go out and do some education sessions on the "duty to provide care." After my initial reluctance to do what I was told… the next thing was to think about the duty to provide care. Is there such a duty for a health care professional? And of course it's pretty easy to get to the conclusion – yes. But as the sessions progressed it quickly became apparent that that was only part of the story. Is there a duty for a health care professional to provide care – yes. Is there a duty for a parent to look after his or her children – yes. What happens when those two duties collide? (When your day care plans have fallen though because your usual provider is sick and so on.) In this case a professional ethical obligation came into conflict with a personal moral obligation. In this case it is clear what people will do but this realisation interestingly shifts the problem for organizations. The original thought was that the obligation to provide care should be preached – and that this would be enough – in effect the burden would be placed on the shoulders of care providers. But this could not be the solution. Care providers themselves have other, potentially competing moral obligations too. The real problem for health care organizations had to be to work out how to support staff to make it as easy as possible for them to fulfill their health care obligations. That would mean encouraging people to make contingency plans for their other obligations – and supporting those plans where possible, and in providing as safe as possible a work environment. Sometimes our professional obligations can come into conflict with our other obligations – and at that point we have to decide what we – as persons will do.
Physicians and the duty to refer.
First, let's lay the groundwork. Medicine is a self-regulated profession. That is, medical practitioners have been given the social right to set their own standards of practice and to ensure that the training, education, and discipline of practitioners meet those standards. In Ontario the authority to ensure that this occurs is granted to the CPSO. The CPSO describes self-regulation as a privilege, and medical professionalism as a social contract, a covenant between the profession and society. (The Practice Guide: Medical Professionalism and College Policies. http://www.cpso.on.ca/uploadedFiles/policies/guides/PracticeGuideExtract_08.pdf ) The CPSO acts, in effect, as the mediator between the medical profession and the broader society which grants physicians their authority to practice. Physicians, practising in Ontario have accepted a professional ethical obligation to practice in accordance with CPSO values and standards.
The draft policy says the following:
156 Where physicians are unwilling to provide certain elements of care due to their moral or religious
157 beliefs, an effective referral to another health care provider must be provided to the patient. An
158 effective referral means a referral made in good faith, to a non-objecting, available, and accessible
159 physician or other health-care provider. The referral must be made in a timely manner to reduce the
160 risk of adverse clinical outcomes. Physicians must not impede access to care for existing patients, or
161 those seeking to become patients.
163 The College expects physicians to proactively maintain an effective referral plan for the frequently requested services they are unwilling to provide.
There are almost a thousand comments on this draft policy on the CPSO web site. Most of them objecting. In many cases the argument seems to be that, informing someone that while I do not do this someone else does, is somehow the moral equivalent of performing the deed itself. That does not seem quite right to me. It sounds a bit like suggesting that a librarian is responsible for doing the things described in the books on the library shelves. It is the case that a number of practices, for example, some forms of contraception, assisted reproduction, and abortion, are permitted in Ontario and can only be accessed through the medical profession. While a physician may choose not to offer those services him or her-self competent, ethical members of the same profession, in your jurisdiction, do, and informing your patient of that fact is not the moral equivalent of performing the act yourself.
The CPSO has situated the duty to refer in the context of the profession's commitment to the broader community. That professional commitment then becomes binding on individual physicians. From the social perspective it is easy to see the point. The health care system in Ontario is a system of interlocking pieces. Physicians play a privileged role in that system. Furthermore, access to any part of the system is often controlled by physicians. No physician therefore, should be in a position to impede access to that system. Hence the duty to refer.
Ultimately, it is up to each one of us – physicians or not to decide how we will conduct our moral lives. Our moral obligations do indeed spring from a variety of sources and in the event of conflict we, each of us, must choose what we do. But, how we honestly, and carefully reflect upon and conceptualize our moral obligations and how they do or do not conflict is hugely significant, and may make all the difference.