Conscience Rights Proposal

Coalition for HealthCARE and Conscience

Conscience Rights Proposal
The Coalition for HealthCARE and Conscience represents a group of like-minded organizations that are
committed to protecting conscience rights for health practitioners and facilities.
OUR MEMBERS INCLUDE:

The Catholic Archdiocese of Toronto

The Christian Medical and Dental Society of Canada

The Catholic Organization for Life and Family

The Canadian Federation of Catholic Physicians Societies

The Canadian Catholic Bioethics Institute

Canadian Physicians for Life

KEY POINTS:

 ny legislation legalizing assisted death must have conscience protections for health care workers and
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facilities like hospitals and nursing homes. This legislation must protect against being forced to perform
or refer for these procedures or being discriminated against because of the conscientious objection.

 embers of our coalition are influenced by conscience, religious belief or adherence to the Hippocratic
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tradition. Many are part of established religious traditions that consider referral of any kind, or allowing
assisted death on facility premises, as forms of participation in PAD.

 orcing these members, and leaders of these facilities, to act in this way, would be trampling on their
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constitutional right to freedom of conscience and religion guaranteed under the Charter (section 2).
Requiring health care workers to participate in assisted death as a condition of employment would be a
form of discrimination and would be subject to a section 15 Charter challenge. We believe this would go
against the very core of why our members became physicians, or these institutions were developed in
the first place, which is to help heal people or support them in their natural dying process.

 o permissive foreign jurisdiction mandates referral. For instance, Californias enabling statute says
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Participation in activities authorized pursuant to this part shall be voluntary. . . a person or entity that
elects, for reasons of conscience, morality, or ethics, not to engage in activities authorized pursuant to
this part is not required to take any action in support of an individuals decision under this part.

 e have a proposal that will respect the conscience rights of doctors and healthcare facilities, without
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interfering with the patients choice for assisted death. Under this proposal the provincial government
would create a process allowing patients to directly access an Assessment Advisor who could provide
resources and support to patients and connect them to physicians and facilities that provide PAD.

For more information contact Larry Worthen @ 902-880-2495 or lworthen@cmdscanada.org

Backgrounder:
Both Catholic and Evangelical moral theologians have indicated that making a referral for assisted death is
formal cooperation in the death of the patient and the moral equivalent of performing the act itself. This is
breaking one of the Ten Commandments, which for these physicians is the fundamental duty owed to God and
our neighbour. Physicians in this category are part of a religious minority who rely on the Charter of Rights and
Freedoms (s.2) as protection against laws that would force them to recommend something they cannot. If there
is a requirement to refer, even to a third party, this will be impossible for many physicians and will result in those
health care workers being excluded from these occupations. This is a form of discrimination, which we believe is
subject to a section 15 challenge under the Charter.
Referral means recommending a particular course of medical treatment, or sending a patient to an expert
to recommend a particular treatment. Referral of any kind is a form of participation, making our members
accomplices to the controversial procedure. In criminal law, an accomplice is as guilty as the person who
commits the crime.
Physicians are professionals and must retain the ability to freely act in their patients best interests. The best way
to protect the public, the patient and the role of the physician is to safeguard physicians conscience rights so
they can exercise their professional judgment with moral integrity and independence.
CONSCIENTIOUSLY OBJECTING PHYSICIANS CAN:
1.

Commit to not obstructing patient access to legally available procedures, and not abandoning the patient

2.

 ontinue to see a patient as physician of record in all other aspects of their care besides assisted death,
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provided that the patient directly accesses an assessment on their own after speaking to their physician.

3.

 articipate in a patient initiated transfer of medical care to a physician named by the patient. This
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includes a transfer of the medical chart to the new physician with consent of the patient. This means
however that the physician-patient relationship between the conscientious objector and the patient is
ended.

4.

 pon receiving an inquiry about assisted death, inform patient of all legal medical options, including
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assisted death.

CONSCIENTIOUSLY OBJECTING PHYSICIANS CANNOT:

1.

Perform assisted death.

2.

Refer a patient for an assessment, or refer to a third party for an assessment.

3.

Contact the third party to tell them that a patient requires an assessment (as in the Quebec model).

4.

Organize a transfer of care by finding another physician for the patient

Concerns of those on the other side of this discussion

Some are concerned that very sick patients will not be able to make their own arrangements to access assisted
death if their physician is a conscientious objector.
A transfer of care may be an option in those situations. A transfer of care is different from a referral as it involves
the complete transfer of care from one physician to another. The original physician-patient relationship is
terminated. A transfer of care is permissible for a conscientiously objecting physician if the patient requests it
and advises who their new physician will be. If a patient requests a transfer of care, their physician of record
cannot be involved in finding a new physician, however.
If the patient is in the community in a palliative care program or in a hospital then the medical director could
organize a transfer of care. If the medical director is a conscientious objector then another person could be
designated for this role.
A transfer of care ends the professional relationship between the original physician and the patient. When the
patient or their representative is able to contact the proposed assessment service directly this allows for the
physician patient relationship to continue, in all aspects of care other than assisted death. This should be the
patients decision. Providing access to assisted death should never be a physicians responsibility. Government
may choose to provide a 1-800 service that would connect people who want an assessment with the people
who will provide it.

Conscience protection in permissive jurisdictions

No foreign jurisdiction that permits assisted suicide or euthanasia requires participation in the procedure in any
way, other than to require physicians to transfer the patients file after a patient initiated transfer request.

There is no conflict between physician and patient rights

The argument has been used that in a conflict of rights between the physician and patient one must come
down on the side of the patient. The Supreme Court has never said that every doctor and every facility has
an obligation to facilitate access. Access ultimately must be the responsibility of the government. Forcing
physicians to refer, especially when it can be demonstrated that this is against their religious beliefs provides
a prima facie case of infringement of religious freedom. Under the Oakes test, government must choose the
least restrictive option if its policy objectives require infringement on human rights. The attached proposal
demonstrates that there is another way to manage this conflict. How can forced referral be the least restrictive
option if there is another viable option that is less restrictive?

Proposal Key Messages:

 e have a proposal that will allow for the patients choice for assisted death while respecting the
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conscience rights of doctors and healthcare facilities.

 espite our moral objections to Physician-Assisted Death (PAD), we will not obstruct any patients
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decision to choose this option. We are able to provide the patient with information on all of their options,
including PAD.

 his is in no way an effort by our members to abandon patients who decide to end their lives. This
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proposal offers patients the choice to transfer to a new physician, or directly access the assessment they
request.

 he government could create a process allowing patients to directly access an Assessment Advisor
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who could provide resources and support to patients and connect them to physicians and facilities that
provide PAD.

 hen patients are unable or unwilling to contact the Assessment Advisor on their own, the patient can
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transfer their care to another physician, named by the patient. As finding another doctor is morally the
same as referral, non-objecting staff at a public facility or program or the assessment advisor will need to
arrange the transfer.

 his model would bypass the issue of referral by creating a path for patients or their representatives
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seeking PAD to access an assessment, or transfer their care.

Its important to remember medical files are the property of patients, which gives them the right to
transfer them to any accepting physician. Objecting health care facilities would advise patients on their
position on assisted death upon admission. If a patient has decided they wish to proceed with PAD, they
could be transferred to another facility of their choice.

 any members of our coalition hold to established religious traditions that consider referral of any kind,
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or allowing assisted death on facility premises, as forms of participation in PAD. To force these members,
and leaders of these facilities, to act in this way, would be trampling on their constitutional right to
freedom of conscience and religion. No permissive foreign jurisdiction mandates referral.

 e believe this would go against the very core of why our members became physicians, or these
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institutions were developed in the first place, which is to help heal people or support them in their natural
dying process.

We will continue to help our patients medically and in any way we are morally able.

The Canadian Medical Association has crafted a very similar proposal.

Proposal Flow Chart

Patient requests Physician-Assisted
Death. Physician informs patient of
ethical conflict. Assesses overall
well-being of patient to determine if
suffering can be remedied and
discussed all treatment options with
the patient.

The patient makes a choice

to request an assessment for
Physician-Assisted Death.

Patient options

Transfer of Care

Direct Access

Patient seeks Transfer of care to

another physician.

Transfer arranged by the facility,

program or by the assessment
advisor, depending on the patients
circumstances. Their physician
provides medical records to the new
physician upon request and with the
patients approval.

Patient remains under the care of

their physician.

Patient contacts assessment advisor

directly and continues to receive care
not related to Physician-Assisted
Death from their physician. Their
physician provides medical records
to the physician doing assessment
for Physician-Assisted Death upon
request with the patients approval.

National Study:
A May 2015 survey of 1,201 Canadians conducted by Abingdon Research

How should a physician whose religious beliefs would

forbid them from referring for euthanasia be required to
act when a patient requests the procedure?

Neither Perform Nor Refer for Euthanasia

Must Refer for Euthanasia
Must Perform Euthanasia

Abingdon Research Survey May 2015. Margin of error +/-5%, 19 times out of 20

Sample Statutes from other Jurisdictions:

California: An act to add Part 1.85 (commencing with Section 443) to Division 1 of the Health and Safety
Code, relating to end of life.
443.14 (2) Notwithstanding any other law, a health care provider is not subject to civil, criminal, administrative,
disciplinary, employment, credentialing, professional discipline, contractual liability, or medical staff action,
sanction, or penalty or other liability for refusing to participate in activities authorized under this part, including,
but not limited to, refusing to inform a patient regarding his or her rights under this part, and not referring an
individual to a physician who participates in activities authorized under this part.
(3) If a health care provider is unable or unwilling to carry out a qualified individuals request under this part and
the qualified individual transfers care to a new health care provider, the individual may request a copy of his or
her medical records pursuant to law.
443.15 (a) Subject to subdivision (b), notwithstanding any other law, a health care provider may prohibit its
employees, independent contractors, or other persons or entities, including other health care providers, from
participating in activities under this part while on premises owned or under the management or direct control
of that prohibiting health care provider or while acting within the course and scope of any employment by, or
contract with, the prohibiting health care provider.

Supporting Material:
Supporting information can be found at:
http://www.consciencelaws.org/publications/submissions/submissions-023-002-parl.aspx

Detailed wording can be found at:

Belgium:
http://www.consciencelaws.org/law/laws/belgium.aspx
Luxembourg:
http://www.consciencelaws.org/law/laws/luxembourg.aspx
Washington State:
http://www.consciencelaws.org/law/laws/usa-washington.aspx
Oregon:
http://www.consciencelaws.org/law/laws/usa-oregon.aspx
California:
http://www.consciencelaws.org/law/laws/usa-california.aspx
(e) (1) Participation in activities authorized pursuant to this part shall be voluntary. Notwithstanding Sections 442
to 442.7, inclusive, a person or entity that elects, for reasons of conscience, morality, or ethics, not to engage in
activities authorized pursuant to this part is not required to take any action in support of an individuals decision
under this part.
Vermont:
http://www.consciencelaws.org/law/laws/usa-vermont.aspx
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