Conscientious
objection and referral: words, principles and compromise.
On the one hand:
The
Parliament of Canada recognizes the autonomy of persons who have a grievous and
irremediable medical condition that causes them enduring and intolerable
suffering and who wish to seek medical assistance in dying;
And
The
Government of Canada has committed to uphold the principles set out in the Canada Health Act —
public administration, comprehensiveness, universality, portability and
accessibility — with respect to medical assistance in dying;
But on the other hand:
everyone has freedom of conscience and
religion under section 2 of the Canadian
Charter of Rights and Freedoms;
And
nothing in this Act affects the
guarantee of freedom of conscience and religion;
Preamble
to Bill C-14
Bill C-14 Section 241.2(9) goes on to say:
(9) For
greater certainty, nothing in this section compels an individual to provide or
assist in providing medical assistance in dying.
In
Medical Assistance in Dying, Health Canada puts it this way:
Protecting the right of
providers to act according to their beliefs and values
Not all health care providers will be comfortable
with giving or helping to provide medical assistance in dying. The practice may
not be consistent with a provider's beliefs and values. The legislation does
not force any person to provide or help to provide medical assistance in
dying.
Patients
are entitled to have timely access to legal medical services. Physicians or nurse practitioners act as
gatekeepers to the medical system, but they cannot be compelled to provide or
assist to provide, medical aid in dying.
What are the professional ethical expectations of physicians and nurse
practitioners? What should physicians and nurse practitioners be “compelled” to
do?
Leading
players in medical professional associations say different things – or at least
they appear to.
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CMA
Principles-Based Recommendations for a Canadian Approach to Assisted
Dying
https://www.cma.ca/Assets/assets-library/document/en/advocacy/cma-framework_assisted-dying_final-jan2016-edited-20160412.pdf
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CPSO
Policy on Medical assistance in Dying
http://www.cpso.on.ca/Policies-Publications/Policy/Physician-Assisted-Death
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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.
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Conscientious Objection
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.
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Let us
start with the points of agreement.
Physicians
must not impede or block access to medical aid in dying for a patient who
requests it. A physician must not
abandon his or her patient.
A
physician must respond to a patient’s request for medical aid in dying. A physician must communicate all options for
care that may be available or appropriate (including assisted dying.) A patient must be informed of the
availability of a central information or referral agency. A physician must inform the patient of his or
her conscientious objection to providing medical aid in dying.
The CMA
requires that a physician transfer the patient if the patient so requests. The CMA explanation of “transfer” continues: “for the assessment and
treatment of the patient’s medical condition and, if the patients meets the
eligibility criteria, provision of assistance in dying.” Given that a physician cannot abandon a
patient, and given also that physicians cannot make seeking MAID a condition of
retention what is the difference between “transferring” and “referring?”
The
principal issue of contention is the duty to make an “effective referral.” To the casual observer the points of
agreement might seem to make the issue of “effective referral” a bit of a red
herring. If a physician cannot abandon
her patient, and must inform the patient of the availability of medical aid in
dying and provide information about a referral agency or process, and transfer
the care of the patient for assessment and provision of MAID why does it matter
whether any of that is called “referral?”
The
article goes on to say: “For doctors and nurse practitioners, a referral
amounts to an endorsement of another physician’s services, and suggests support
for the medical intervention.”
The CPSO
has explained and expanded its conception of “effective referral” in a Fact
Sheet entitled “Ensuring Access to Care – Effective Referral.”
What is an “Effective Referral”
A physician makes an effective
referral when he or she takes positive action
to ensure the patient is connected
in a timely manner to another physician,
health-care provider, or agency
who is non-objecting, accessible and available
to the patient.
Objective: Ensuring Access to
Care,
Respecting Patient Autonomy
An effective referral does not
guarantee a patient will receive a treatment, or signal that the objecting
physician endorses or supports the treatment. It ensures access
to care and demonstrates respect
for patient autonomy.
The CMA
requires a physician to “respond,” or “take action” in the language of the
CPSO. That response includes proving
information about the existence, availability and contact information of
another physician or referral agency who does not object to providing medical
aid in dying.
There are
a number of crucial points at issue here:
What is it to “assist to provide?”
What is the difference between
responding by providing information about a central referral agency,
transferring a patient for assessment and, if eligible, provision of a
procedure, and “referring a patient for the assessment and, if eligible,
provision of a procedure?”
Does providing information or referral or transfer, imply endorsement of
medical aid in dying?
Who gets to decide on any of these issues?
If there is a conflict between the rights of patients and the rights of
physicians can these be reconciled?
Assist to provide
In its obvious sense
to assist someone is to help or aid that person in the performance of a task or
in pursuit of an objective. The
legislation concerns the provision of medical aid in dying so let us take the
actual provision of “medical assistance in dying” as the objective or task that
no-one is required to perform or assist in providing. Medical aid in dying is defined in the
legislation as:
medical assistance in dying means
·
(a) the administering by a medical
practitioner or nurse practitioner of a substance to a person, at their
request, that causes their death; or
·
(b) the prescribing or providing by a
medical practitioner or nurse practitioner of a substance to a person, at their
request, so that they may self-administer the substance and in doing so cause
their own death. (aide médicale à
mourir)
Medical assistance
in dying is the actual administration of the lethal substance to the patient,
or the prescription of a substance that the patient may self-administer to
cause his or her death. Let us just
concentrate on the first case – where the medical practitioner administers the
substance. Clearly, under the
legislation no medical practitioner can be compelled to administer that lethal
substance. Who has “assisted?” And here
we have to broaden the scope of the discussion to include those engaged in the
provision of health care who are not physicians or nurse practitioners. A nurse may well have provided a range of
standard nursing care services to that patient before the administration of the
lethal substance. If that nurse has
provided comfort care to that patient before the provision of the lethal
injection – perhaps during the expected 10 day waiting period has he or she
“assisted?” That seems implausible. The care being provided through that time is
no different from the care the patient would ordinarily have received and that
care is not part of the preparation for the administration of the lethal
substance. What about starting the IV
line that will later be used to administer the lethal substance? Again, there are different possibilities, if
the nurse is asked to start the IV line where that line is for the express purpose
of administering the lethal substance, that seems like “assisting” in the
provision of medical aid in dying. If,
however the line is used to administer a variety of other medications and only
subsequently is used for the administration of the lethal substance, that does
not appear to be “assisting” in the provision of medical aid in dying.
What about other
professionals who may be involved? Does
the Social Worker who counsels and supports both the patient and his or her
family “assist” in the provision of medical assistance in dying? What about the non-professional staff? Would a housekeeper who knows that he or she
is preparing a room where medical assistance in dying is to be performed be
entitled to refuse the assignment on the grounds that it would be “assisting”
in the provision of medical aid in dying?
Pharmacists are
mentioned in the legislation and thus constitute a special case. Pharmacists are entitled to be notified that
the medications being ordered are for the purpose of the provision of medical
assistance in dying. The most obvious
reason for this would be to permit the Pharmacist the opportunity to object to providing that
service on the grounds of conscience.
Which in turn means that a Pharmacist who supplies the medication,
knowing its purpose, would be “assisting” in the provision of medical
assistance in dying. It is not clear if this case helps illuminate
the Social work and Housekeeping situations.
In the case of the Pharmacist those medications would not be ordered, in
those combinations or quantities for any other purpose that provision of
medical assistance in dying. The
medications are for medical assistance in dying so providing the medications
constitutes assistance. In the cases of
both the Social Worker and the Housekeeper their services would be required in
the same way whatever course of action the patient undertakes.
Two physicians (or
Nurse Practitioners) are required to agree that the patient meets the
conditions to receive medical assistance in dying. It is expected that one of those Physicians
(NPs) will administer the lethal substance.
What about the other Physician or NP?
Does he or she “assist?” The Physician (NP) concerned is being asked to
evaluate a patient on the basis of a set of criteria. Either the patient has a grievous and
incurable illness, is in an advanced state of decline in capacity, has a natural death that is reasonably
foreseeable, is capable of making health care decisions, etc. or he or she is
not. If the patient does meet those
conditions then that patient may wish to choose the legally available option of
medical assistance in dying. But of
course he or she may well not. Data from
Oregon where Physician Assisted Suicide has been legal for 10 years shows that
around a quarter to a third of patients who are eligible for – and receive -- a
prescription to self-administer a lethal medication do not do so. (https://public.health.oregon.gov/ProviderPartnerResources/EvaluationResearch/DeathwithDignityAct/Documents/year16.pdf)
It seems pretty
intuitively obvious that a person who provides a second opinion on a patient’s
eligibility for medical assistance in dying is “assisting,” and certainly many
people would feel that way, but this is less than clear cut. The Physician (NP) is providing an opinion on
eligibility, not recommending any particular course of action. It is true that that opinion is a necessary
condition for the provision of medical assistance in dying, but not all of the
necessary conditions would count as “assistance.”
Before we go further
back up the chain of events that culminates in the actual provision of medical
assistance in dying let us look at the “who decides?” question.
Who decides what
counts as “assisting?”
Who has the
authority to determine that this – or that act, does or does not constitute
“assisting?” The CPSO claims this
authority in the context of “effective referral.” It says “for clarity” that it does not consider
making an “effective referral” “assisting.”
However, the CMA
states:
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..
The implication here
is that “referring” is “participating.”
But, according to
the CMA, physicians are obliged to “respond,” and, if the patient requests:
transfer the patient to another physician or another
institution…for the assessment and treatment of the patient’s medical condition
and, if the patient meets the eligibility criteria, provision of assistance in
dying.
The implication here
must be that responding to an enquiry by providing complete information, and
transferring a patient for the purpose of evaluation and possible provision of
medical aid in dying does not constitute “assisting” or “participating.”
So for the CMA,
referring is assisting, but transferring for the very same purpose, is not.
Geoff
Blackmer, CMA VP of Professionalism is quoted in the Ottawa Citizen as saying:
“A lot of physicians are uncomfortable with
sending a direct referral to a doctor who (they) know will undertake assisted
dying with that patient. While the objecting physician may not be carrying out
the act, they are still essentially endorsing the act.”
Here Blackmer is
going further: he says that many
physicians feel that making an effective referral would be “endorsing” the end
result of the provision of medical assistance in dying. What do those same physicians feel about
transferring a patient where the end result is the provision of medical
assistance in dying? We can come back to
“endorsing” in a moment, but let us stick with “feeling” for a moment. Can my conscience (which I feel) determine
what counts as “assisting,” can my conscience determine how close is too close
for my moral comfort? Is a Physician
entitled to say – on the grounds of conscience that he or she will not refer (or
transfer) because he or she feels that referral constitutes “assistance” or is
the College entitled to say – either you are mistaken to feel that way because
referral is not assisting, or, even if you do feel that way your professional
ethical obligation is to refer. It might
turn out that the “who decides” question on what counts as assisting is moot,
on the grounds that whatever an individual decides his or her professional
college has got the authority to determine what that professional should do as
part of his or her professional ethical duty, and that simply overrides – if
the professional wishes to continue to practice -- his or her personal moral
feelings.
Responding,
providing information and making an effective referral
Both the CMA and the
CPSO agree that a Physician should not block or impede access for a patient to
a legally available medical service. On
what grounds? Why are the CMA and the
CPSO entitled to make that stipulation?
Probably on the grounds that both organizations feel that they have some
obligations to define and promulgate the ethical expectations for their
members. In the case of the CPSO that
mandate comes from the authority of the Province of Ontario which permits
Physicians to practice within its jurisdiction under certain conditions, and
gives the CPSO the authority to define those conditions. The case of the CMA is rather different, but
its ethical pronouncements presumably represent some sort of consensus of the
membership on expectations of ethical behaviour. If a Physician determined, on the basis of
his or her conscience, that he or she should block or impede access for a
patient to a legally available service (abortion for example?) for a particular
patient both the CMA and the CPSO would be united in condemning that
behaviour.
The CMA requires
that a Physician “respond” to a patient request for medical assistance in
dying. This entails some positive
steps. The Physician must inform the
patient of all available options, including medical assistance in dying. The Physician must also advise the patient
how to access any central counselling, information or referral service. The Physician must inform the patient of his
or her conscientious objection to providing medical assistance in dying and all
of this must be done in good faith, and, of course, a physician must not
abandon his or her patient. One can
readily imagine the script a physician should follow: “I understand that you
are making enquiries about medical assistance in dying. This is not a service that I provide on the
grounds that it contravenes my personal moral convictions. However, if you wish to pursue this option, I
will not abandon you as my patient. Here
are the options available for your care…. This is how medical assistance in
dying is provided… If you would like
further information please refer to:…Ministry web site…”
So far so good. However, in Ontario if you go to the Ministry
of Health web site: https://www.ontario.ca/page/medical-assistance-dying-and-end-life-decisions
for information, the
first instruction is “Talk to your Doctor…” that section then goes on to inform
the patient that his or her physician is obliged to contact the central referral
agency to arrange for a referral. The
patient cannot perform this task him or her self, it must be performed by a
physician. That is, the central referral
agency requires physician referral. A
physician in Ontario cannot follow CMA guidelines without providing a referral.
Referral and
transfer
The CPSO requires
that a physician who declines to perform a service on the grounds of conscience
must make what it calls an “effective referral.” The CMA says that a physician must:
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.
And
No physician may make a commitment not to seek assisted
dying a condition of acceptance or retention of a patient.
But
taken together there is something of a paradox, according to the CMA if a
patient requests medical aid in dying and the physician is not prepared to
offer that service, the physician cannot terminate his or her relationship with
the patient but must, if requested “transfer” the patient for the assessment
and treatment of the patient’s medical condition and if the patient meets the
eligibility criteria, provision of medical aid in dying. What is the difference between “transferring”
the patient for the assessment and potential provision of medical aid in dying,
while maintaining an on-going relationship with that patient, and making an
effective referral for the same purpose?
Here it seems that the CMA and the CPSO are using different words for
what is essentially the same practice.
Referral and
“endorsement”
Does a “referral”
entail an endorsement? The CMA argues
that at least some people think so – and it backs that opinion by stating
clearly that while responding and providing information is required, referral
is not. Does a referral to another
physician who is known not to be a conscientious objector to providing medical
assistance in dying constitute an endorsement and if so of what? A referral to another physician does
constitute some form of endorsement of the physician him or her self and
his/her training, qualifications and competence to practice. A referral implies that the physician doing
the referring, reasonably believes the physician accepting the referral to be
competent to perform the services that are the subject of the referral. In this case that the physician is competent
to assess the patient’s eligibility for medical aid in dying, and, if the
patient is eligible, competent to perform medical assistance in dying. There is no implication that the physician
making the referral endorses the practice of medical aid in dying. In fact, both the CMA and the CPSO require
the referring physician to make it clear to the patient that he or she objects
to the medical aid in dying on the grounds of conscience. That is, the referring physician has already
made it clear – before the referral, that he or she does not endorse the
practice.
The same issues of
“endorsement” or otherwise are present for a patient “transfer.” A physician could only transfer a patient to
the care of another physician if he or she believed that physician to be
competent to practice and competent to provide the relevant assessment,
diagnosis and care.
Conclusion
There is room for
reasonable people to hold genuinely different opinions here. A moral agent, acting in good faith, could
plausibly feel that “responding” to a patient’s request for medical assistance
in dying, in a way that: provides information about all treatment options –
including medical aid in dying; and that includes “advising the patient how to
access a central referral service;” which in Ontario means either calling the
central referral service him or her self, or referring or transferring the care
of the patient to another physician who will either consider providing medical
aid in dying or who will make that call to the central referral agency,
constitutes “assisting to provide” medical assistance in dying. There is no room for a physician in Ontario
to say – “I will have no part in this.”
Of course, a moral agent acting in good faith could also plausibly feel,
that referring, or transferring, a patient to a physician who would consider
providing medical assistance in dying in no way constitutes an endorsement of
the practice, and certainly does not constitute “assisting to provide.”
This means that
physicians may face a significant choice as each physician decides how far he
or she will go with a patient.
“Personal
conscience” and “professional duty.”
Much of this debate
has been conducted as if it was a contest between the dictates of personal
morality “conscience” and professional ethical duty or obligation, with the
implication that professional ethical duty cannot be taken to override or
defeat personal moral conscience. That
however, is, I think, a false and overly simple contrast. For each one of us our set of values – or
collection of moral principles is an agglomeration formed from a variety of
different sources and shaped by a lifetime of reflection and experience.
The “bucket of
values” approach
We each one of us
are born with a bucket – our values bucket.
Those around us start throwing things into that bucket from the moment
we are born. My mother was instrumental
in putting a whole load of values into my bucket – as was my father, my
schooling, my religious upbringing, my own reading, experience and reflection,
my academic training and so on. And just
as many things found their way in – many others were discarded along the way
too – as I discovered that from my perspective, and upon reflection they did
not work or did not fit. I think this is
true for all of us. In the case of those
whose professions have a strong values-base (medicine for example) those
professional ethical values are a strong and integral part of professional
training. I think that in many cases
those professional values, for instance, of respect for patients, and
compassion are not imposed from the outside but rather absorbed into the person
him or her self. The problem then, is not so much a clash between internal –
conscience, and external, professional, but rather a clash between values, or
principles both of which are lived and held by the person concerned. This is the stuff of classical moral dilemma,
and ultimately, moral choice.
Nor is this a
discussion that is helpfully conducted in the abstract. Autonomy, rights, conscience,
professionalism, compassion are all fine things, but real situations have
nuances not captured by those abstractions.
The hard problems arise for physicians when they are confronted by real
people—a patient in the extremity of her need calling upon her physician to see her, in her situation and to exercise
compassion.
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