Derek Ross and John Sikkema
Across Canada, Physicians’ Colleges are grappling with the implications of the Carter judgment for their members and for their mandate to regulate the medical profession. The Supreme Court said that what follows its judgment “is in the hands of the physicians’ colleges, Parliament, and the provincial legislatures” (para 132). However, the judgment as a whole clearly anticipates a legislative response from Parliament before assisted suicide or euthanasia may be provided at all.
Waiting for Parliament
Parliament has not yet legislated on this matter and Carter is due to come into effect on February 6, or six months later if the Attorney General’s request for a further suspension of the ruling is granted by the Supreme Court. Consequently, certain physicians’ Colleges apparently consider it necessary to create policies or guidelines on this matter.
The problem CLF has identified with such policies, however, is that they attempt to instruct physicians on whether or not and how to participate in an activity that remains criminal in all but the limited circumstances that fit within Carter. The Supreme Court did not clearly delineate the boundary between criminal and non-criminal assisted suicide and euthanasia or set out the necessary procedural safeguards, nor did they intend to, but left that up to Parliament. It was, after all, criminal law provisions that were in issue and the Court reaffirmed Parliament’s criminal jurisdiction over this matter. So while there may be some role for the Colleges to play, that role is not instructing physicians on how to comply with the limited judicial invalidation of certain criminal provisions.
In previous communications, we explained how the Colleges of Saskatchewan and Manitoba misapply Carter in their policies. Our submissions to those Colleges are available (here and here). This month, CLF has also made submissions to the Colleges of New Brunswick (here) and Ontario (here). We identified and explained similar issues to those Colleges.
One important point of explanation is that the declaration of invalidity in Carter was strictly and expressly limited in scope to the factual circumstances of Ms. Taylor, the plaintiff in the case who had ALS, a debilitating and fatal illness. For a concise explanation of the limited scope of the declaration of invalidity in Carter, see our recent editorial, “Misreading Carter”.
Yet the Colleges of both New Brunswick and Ontario communicate to physicians through their draft documents that psychological suffering alone is enough to qualify a person for assisted suicide or euthanasia. CLF explains in its submissions why this falls outside the parameters of the Carter ruling.
The Colleges can wait
The Supreme Court was clear that its judgment does not oblige physicians to provide “physician-assisted dying”. The Colleges, therefore, can wait. They are under no obligation to establish policies on this matter when the state of the criminal law is not yet clear. In fact, they would do well to discourage physicians from participating in order to avoid criminal or civil liability, at least until Parliament and the provincial legislatures have clarified these matters through “a carefully designed and monitored system of safeguards” as mandated in Carter (para. 27).
Physicians not obliged to provide assisted suicide
The SCC in Carter made it clear that nothing in its judgment “would compel physicians to provide assistance in dying” (para 132). A recent poll of Canadian physicians revealed that 63% would not consider providing medical aid in dying, with a further 8% undecided. As the court acknowledged in Carter, “a physician’s decision to participate in assisted dying is a matter of conscience and, in some cases, of religious belief” (para 132). Nevertheless, the Ontario College’s Interim Guidance document requires physicians to participate in the form of effective referrals, regardless of their personal beliefs. CLF explains in its submissions that nothing in Carter requires this or creates any burden on physicians or the College to facilitate access to assisted suicide and euthanasia. Rather, as the Court said, Carter “simply renders the criminal prohibition invalid.”
As CLF has stated in 2014 submissions to the College, “Physicians do not practice medicine in a moral or ethical vacuum. To the contrary, a physician’s ethical framework does, and should, inform the care they recommend and provide.” We were pleased to learn that this sentiment was echoed in the Canadian Medical Associations’ recent submission to the CPSO, which stated:
“It is in fact in a patient’s best interests and in the public interest for physicians to act as moral agents, and not as technicians or service providers devoid of moral judgement…[M]edical regulators ought to be articulating obligations that encourage moral agency, instead of imposing a duty that is essentially punitive to those for whom it is intended and renders an impoverished understanding of conscience.”
The CMA has called on the CPSO to remove its “effective referral” requirement, as has CLF.
A remarkable element of the response to Carter, both from physicians’ Colleges and the Provincial-Territorial Expert Advisory Group’s Report, is the effort to transform assisted suicide and euthanasia from a crime in 2015, to a publicly-funded, readily and equally accessible “health care service” in 2016. The provinces, physicians’ Colleges, and individual physicians supposedly all have a role to play in realizing the “right” to readily access “death with dignity”. But there is no such right. Carter simply held that the criminal provisions were inconsistent with section 7 of the Charter based on a particular interpretation of the objective of those provisions and a particular set of adjudicative facts. Invalidating a criminal prohibition against something is not the same as establishing a positive right to it. Indeed, section 7 of the Charter has never been interpreted as creating positive rights—the right to receive something from the state as opposed to the (negative) right to be free from state interference. Will Canada’s first “positive right” under section 7 be the “right to die”?