Doctors who participate in assisted dying — or refuse to — need greater legal protections: committee

Published in the Ottawa Citizen on May 12, 2016. Click here to read the article on their site.

OTTAWA — Doctors and other health-care professionals who participate or refuse to participate in Canada’s looming assisted-dying regime should be given greater legal protections to make those choices, says the Commons justice committee.

The recommendations are contained in a new committee report on Bill C-14, the Liberals’ controversial medical assistance in dying draft legislation. The committee wrapped up a month-long study of the bill Wednesday night after hearing from 72 expert witnesses.

The issue of conscientious objections to killing people to end their suffering is expected to dominate debate in the Commons on Friday. A Conservative motion will call for even greater protections for conscientious objectors, including not requiring them to make “effective referrals” of eligible patients to doctors who will perform the procedure or to third-party agencies to make such arrangements.

Though C-14 says nothing about effective referrals, the College of Physicians and Surgeons of Ontario this week told the committee that, at a minimum, objecting physicians must provide an effective referral for patients seeking an assisted death. An effective referral, it said, is not the same as providing medical assistance in dying.

The concern is if the federal and provincial governments do not enshrine a requirement for an effective referral in legislation, it will be left to regulatory authorities and create a patchwork approach to the issue “that will have distinct negative implications for patient access.”

The committee’s final report does not address the issue.

It does recommend amending the preamble to explicitly recognize the right of doctors, nurses and other health providers to exercise their freedom of conscience and religion under Section 2 of the Charter of Rights and Freedoms.

The current bill does not compel health-care practitioners to provide medical assistance in dying. But critics say that is not the same as protecting objecting doctors, nurses, pharmacists and other with an explicit safeguard provision in legislation.

As well, since the Criminal Code will continue to outlaw assisting, counseling and aiding or abetting suicide — outside of medical assistance in dying — the committee says, for greater certainty, the legislation should say that no social workers, psychologists, psychiatrists, therapists, medical practitioners, nurse practitioners or other health care professionals commit a crime if they provide information to a person on the lawful provision of medical assistance in dying.

The report, however, does not address another of the draft legislation’s most contentious issues. It requires that a natural death be “reasonably foreseeable” for a person to be eligible for an assisted death.

The Supreme Court, in its landmark 2015 “Carter” judgment, said assisted dying must be available to consenting, competent adults with a grievous and irremediable medical condition that causes enduring and intolerable suffering. But it said nothing about a death being reasonably foreseeable or terminal.

While the government insists the legislation is constitutionally sound, opponents believe the restriction will be sufficient grounds for a future constitutional legal challenge.

“The committee ducked the elephant in the room, whether this is constitutional,” says NDP MP and health critic Murray Rankin, one of the committee’s vice-chairs. “The bill’s central feature is to deny people rights that they won in the Carter case.”

The existing criminal law against assisted dying expires on June 6.