Dr. David Amies: When assisted dying rules put politics before patients' rights

In his latest entry for Dying With Dignity Canada's blog, Dr. David Amies delves into some of the eyebrow-raising language featured in the policies of some long-term care homes that won't allow residents to access assisted dying on-site. What he found was a good deal of hypocrisy, scorn for Canadians' right to a peaceful death, and the stunning admission on the part of these facilities that their bans on assisted dying may ultimately infringe upon residents' right to choice.

Medical assistance in dying (MAID) has been legal in Canada under federal law since June 2016. To date, more than 2,000 people have chosen to end their intolerable medical circumstances with the help of physicians and/or nurse practitioners. The available statistics reveal that the distribution of the practice across the country continues to be rather spotty. For example, it is relatively frequently carried out on Vancouver Island, but quite rare in the Maritime provinces. There are several barriers in place, which mean that access to the procedure is generally still quite difficult. These include: the reluctance of many health professionals to take part; concerns over the actual wording of the law, for example the definition of “reasonably foreseeable death”; the somewhat questionable rights of faith-based but publicly funded institutions to refuse to provide a legal medical procedure on their premises; and the continuing muddle about how medical professionals should be remunerated for their MAID services.

A curious legal and constitutional quirk existing in Canada permits the federal government to lay down the law about the broad principles of healthcare but delegates to the 10 provincial and three territorial governments the task of drawing up detailed regulations about its practice. Consequently, a byzantine patchwork of rules and regulations exists across the country. To make matters even more complicated, each province and territory has established professional organizations, for example colleges of nursing, pharmacy and physicians and surgeons, which has in turn added to the overall complexity.

The government of Manitoba has recently passed legislation which gives health professionals and healthcare institutions very definite opt-out rights where medical assistance in dying is concerned. Healthcare professionals can opt out of any part of MAID and face no sanctions. They are entitled to refuse to carry out the procedure, to assess patients for their eligibility, to make referrals to other willing colleagues or even to provide any information on the matter. Healthcare facilities can refuse to allow MAID to take place on their premises, refuse to allow the necessary assessments to take place and refuse to supply all but the most minimal information.

Southern Health-Santé Sud in Manitoba has introduced a policy document, which states that MAID will not be available at an "abstaining facility" and that a conscientious objector will not be required to provide any detailed information, support or counselling about MAID, or to participate in an assessment process or in any aspect of MAID. It defines an abstaining facility as follows: “a faith-based affiliate facility which provides publicly funded health or medical services to persons in a manner which is consistent with the fundamental religious principles of the religion or faith to which it adheres, and adopts and publishes an official policy or position that it will not allow MAID (or certain aspects of MAID, including an assessment process), to be provided within its facility.”

Other care homes in southern Manitoba have drawn up policies using similar language and taking the same hard line. (DWDC raised concerns about these policies in a recent article in the Winnipeg Free Press.Some of these organizations make reference to Christian scripture and the belief that the intentional taking of life is reprehensible. One goes further to claim that the provision of information about Canadian law and provisional regulations concerning MAID is equivalent to carrying out the procedure.

Duty of care

No one can dispute that individuals and boards of management can believe what they like. There is little to be gained by criticizing the religious faith of others for such criticism is almost always taken personally. It is more constructive to examine how religious faith can impact patients who reside in abstaining facilities and/or who are patients of conscientious objectors, particularly when one comes across such statements as, "Clients may not be able to access MAID, if they are too ill or frail to be transferred to a facility that is not an abstaining facility; or reside in an abstaining facility and decline to be transferred to a facility that is not an abstaining facility.”

Fortunately, even the most hard-nosed of abstaining facilities grudgingly concede that they should refer residents to a government website or phone number so patients may garner information for themselves if they persist in asking for MAID.

There are several issues which arise from the policies devised to salve the consciences of conscientious objectors and the boards of abstaining facilities. Firstly, most such facilities are in part sustained by public money. Secondly, MAID is a legal medical procedure across Canada. Thirdly, the concession to the very sick and perhaps extremely elderly patient of providing a web address is ludicrous for it is highly likely that such patients have never used a computer in their lives and are, in any case, far too sick to navigate the intricacies of the Internet.

Cases where publicly funded healthcare facilities decide what they are prepared to offer patients on the basis of their religious beliefs are problematic. It is reasonable for staff to decline to be part of MAID but highly unreasonable to refuse any assistance to patients, who seek help in ending their lives because of intolerable medical circumstances, even to the extent of providing them with useful information. One institution goes so far to say that intolerable suffering should be relieved by excellent medical care!

We can all agree that, if all suffering — physical, mental and psychic — could be assuaged by appropriate means and procedures, then MAID would be unnecessary. But that would only be possible in a perfect world, and we do not live in paradise. A quick glance at the daily news media is sufficient to confirm that. In the real world, boards of management and their employees have a duty of care towards their patients which is hardly satisfied by providing a telephone number or web address to those in extremis. Christians, who decide to adhere so rigidly to doctrine to shield their consciences, might reflect on the parable of the Good Samaritan.

The ideal health care system places patients at its very centre and seeks to do what is best for them. The care they receive should not depend on the personal, religious or moral views of the practitioners or managements they happen to encounter. Practitioners have rights, too, and they cannot be forced to take an active part in procedures they find distasteful. But, they are ethically obliged to offer patients reasonable help in obtaining their legitimate wishes surrounding their treatment. If that obligation causes some people in the health care professions a little unease, so be it.

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

(Photo credit: pressmaster/Adobe Stock)

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