Dr. David Amies: Court ruling in Ontario rightfully puts patients first

In this blog post, Dr. David Amies reflects on an Ontario court's recent decision to uphold patients' right to access healthcare services, including medical assistance in dying. The rights and interests of patients, the judges ruled, must always come before the personal interests and beliefs of their physicians. This, Dr. Amies writes, is exactly how it should be.

Canada's law on medical assistance in dying (MAID) contains a clause which protects the conscientious rights of healthcare professionals, who wish to play no part in the process. Medical and nursing practice, conduct and discipline are all regulated by provincial and territorial colleges or councils of nursing and physicians and surgeons. This legislative dichotomy has given rise to some tensions serious enough to require further court proceedings.

The College of Physicians and Surgeons of Ontario (CPSO) ruled that all physicians were under an obligation, at the very least, to make an effective referral to a colleague when they were faced with a patient seeking MAID, whom they could not help personally by virtue of their own conscientious objection. Several physicians complained that this ruling of the college placed them in an untenable position: sanctions if they refused to refer or a breach of their consciences if they did so. Some physicians maintained that merely speaking to patients about MAID was morally equivalent to carrying it out!

Consequently, a coalition led by the Christian Medical and Dental Society of Canada, went to court seeking a solution to the dilemma. Dying With Dignity Canada was an intervener in the case and argued in defence of the CPSO's effective referral policy.

The ruling

On January 31, 2018, Ontario’s Divisional Court ruled against the applicants by a 3-0 margin. Justice Herman Wilton-Siegel stated in the decision that, “without the policy of effective referral, equitable access would be compromised or sacrificed, in a variety of circumstances, more often than not involving vulnerable members of our society at the time of requesting services.”

The Court’s judgment runs to more than 200 paragraphs. An especially telling one reads: “Physicians in Ontario practice in a single payor (sic), publicly funded healthcare system which is structured on the basis of patient-centred care. Among other consequences of this reality, physicians are required to place the interests of their patients ahead of their own personal interests in the event of a conflict. This is fundamental for the trust that must exist in the doctor-patient relationship. In addition, physicians must respect patient autonomy by recognizing that the patient has the right to decide upon the treatment plan that best meets his or her health care needs and goals within his or her personal circumstances. Lastly, physicians are subject to a duty not to abandon the patient.”

The justices commented that their ruling does affect the consciences of certain practitioners but not sufficiently to absolve them of their duty to assist their patients.

"Duty bound"

Supporters of medically assisted dying will naturally be pleased with the outcome of this court case. However, it is worth sparing a thought for those whose consciences will have been bruised by it. I can appreciate that there are many physicians who will find the business of referring applicants for MAID to colleagues very trying. These are not bad people.

But Richard Moon, a law professor at the University of Windsor, told The Globe and Mail “that the policy requires very little of the (objecting) doctors and what is required is far removed from the action they consider to be necessarily immoral – assistance in dying.” I agree with him wholeheartedly. However, I am not in these clinicians’ shoes.

Dilemmas of this kind are uncomfortable for all concerned and acceptable ways around them should be sought. It is important that clinicians do not act as barriers to access for their patients. More and more provinces are setting up central referral agencies to which patients can apply for assistance by phone or via the web, when they are seeking MAID. Even conscientiously objecting physicians ought to find it possible to pass on details of these services, for all they would be doing is providing public health information — an obligation placed upon all practitioners. In cases where patients are so sick that knowledge of a phone number or a web address proves to be of little practical use, health practitioners, including conscientious objectors, are duty bound to find ways of providing the necessary help. Abandoning patients is not an option! Those with an ingenious bent will find ways of achieving this with minimal stress to themselves.

The day when all provinces and territories will have established central referring agencies for MAID cannot come soon enough, thereby enabling patients to obtain the information they require, and so removing individual conscience from the equation.

It behooves all of us to discuss MAID with our preferred health practitioners in order to discover what their views are on the subject. Thus, when the time comes — which it will, for all must die! — we can be forearmed and ready to make the appropriate arrangements smoothly and efficiently, and so avoid clashes of conscience and similar barriers.

Dr. David Amies is a retired doctor in Lethbridge, Alta., and a member of DWD Canada's Physicians Advisory Council.

(Header photo credit: De Visu/Adobe Stock)

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