As Canada moves ever-so-slowly to legislate and regulate assisted death, the single most contentious question is: What are the legal/ethical/moral obligations of doctors?
When the Supreme Court of Canada struck down two sections of the Criminal Code a year ago – section 14 said "no person is entitled to consent to have death inflicted upon them," and section 241(b) that said anyone who "aids or abets a person to commit suicide" commits a crime – it gave patients who are "grievously and irremediably" ill the constitutional right to choose hastened death.
The top court also said that doctors could not be compelled to actually kill a patient.
That is a perfectly reasonable balancing and reconciling of rights.
Practically speaking, the vast majority of physicians will never be called upon to provide a lethal injection to a patient who chooses to die. But many – especially family doctors – will be called upon to have the discussion and, at some point, decide on their personal position. (According to a poll of Canadian doctors, 29 per cent would be willing to assist a competent, willing patient end his or her life.) But do physicians who choose to not provide this service, for religious, moral or other reasons, have other obligations toward a patient?
Can a physician who refuses to inject a patient with a lethal dose of drugs also refuse to refer them to another physician willing to provide assisted death?
There are, after all, some doctors who believe that referral is akin to participating in the process. Is it sufficient then for a physician to simply refer a patient to a third party – a person or an institution – who can provide them with information?
Or can a physician outright refuse to discuss an issue that offends their religious/moral beliefs?
The Canadian Medical Association, which represents the country's 80,000 physicians, residents and medical students, has struggled mightily with this issue.
At its annual policy conventions, the CMA has debated the issue of "conscientious objection" repeatedly, but never really taken a firm stand – until now.
The group's newly-released "Principles-based Recommendations for a Canadian Approach to Assisted Dying," makes the important point that the rules of engagement must be clear. But it also says that doctors should be allowed to refuse to refer, and that it is sufficient that they "provide the patient with complete information on all of the options available."
The justification for this: "There should be no discrimination against a physician who chooses not to provide or participate in assisted dying."
This is a position that regulators and legislators cannot and should not accept. It is a cop-out that creates real barriers for desperately ill patients.
The College of Physicians and Surgeons of Ontario (CPSO), in its newly-released "Interim Guidance on Physician-Assisted Death," makes the point eloquently, saying, "the physician must not abandon the patient," regardless of their personal beliefs.
The CPSO says that merely providing patients with "information," is not sufficient; what doctors need to provide is an "effective referral," which is defined as a "referral made in good faith, to a non-objecting, available, and accessible physician or agency."
This obligation of effective referral is actually a well-established policy; physicians who have religious or moral objections to birth control or abortion are sanctioned if they refuse to refer patients to willing providers. With an issue like assisted death, a timely, non-judgmental referral is doubly important because the patient is, by definition, gravely ill.
Physicians, like patients, have rights. But they also have obligations. They cannot, willy-nilly, decide what care to provide because of their personal beliefs.
Let's not forget that health care decisions, up to and including life-and-death ones, are usually made in a dignified, mutually respectful manner, and that will be no different with assisted death. That intimate doctor-patient relationship remains all-important.
But, in the rare instances where the values and beliefs of patients and physicians clash, it has to be abundantly clear that patient need takes precedence over physician discomfort, and patient rights trump physician rights.
As the CPSO says: "The fiduciary nature of the physician-patient relationship requires that physicians prioritize patient interests" – even when a patient chooses to die.