What responsibilities do physicians who conscientiously object to assisted dying have to patients who request it?
That was the topic of a pointed discussion in a committee of legislators on Monday night. Advocates and experts testified to MLAs about Bill 34, the government’s proposed legislation on medical assistance in dying (MAID).
Dying With Dignity Canada has major concerns about the bill, which threatens to reinforce unfair barriers to MAID access in the province of Manitoba. DWDC Communications Officer Cory Ruf presented via teleconference to MLAs on the Manitoba legislature’s Standing Committee on Legislative Affairs.
Despite the concerns DWDC raised, the committee did not make any amendments to this piece of legislation. It is expected to go to a final vote in the Manitoba legislature by the end of the week, according to a report in the Winnipeg Free Press. (The CBC also covered the meeting on Bill 34.)
Below is the statement DWDC delivered to Manitoba’s Standing Committee on Legislative Affairs:
Good evening. My name is Cory Ruf and I am the communications officer with Dying With Dignity Canada. I thank the Standing Committee on Legislative Affairs for allowing us to participate in this meeting.
Dying With Dignity Canada is the leading national organization committed to improving quality of dying and defending Canadians’ end-of-life rights. We work to break down unfair barriers facing suffering Canadians who wish to exercise their right to medical assistance in dying, or MAID. We also work to ensure that the rules and regulations governing MAID are fair and compassionate, and that they ultimately comply with the Charter of Rights and Freedoms and the Supreme Court’s 2015 decision in Carter v. Canada.
- Read the bill: The Medical Assistance in Dying (Protection for Health Professionals and Others) Act
- Related: Assisted dying bill tabled in Manitoba
Before I delve into our specific concerns about Bill 34, I would like committee members to imagine themselves in the shoes of a Manitoban who might explore a request for MAID. Individuals who request MAID are some of this country’s most vulnerable, physically compromised patients. According to numbers released by Health Canada, the 30 Manitobans who accessed MAID in the first six months of 2017 had an average age of 75. In 70 per cent of those cases, cancer was the primary underlying condition.
Now, picture yourself as a 75 year old who is facing a second, third or even fourth round of cancer treatment and has decided that they have had enough. Maybe you’re staying in a hospital, in a personal-care home, or still living on your own. You are aware of your right to MAID and would like to be assessed for it. You’re not sure how your doctor feels about MAID, but you have no idea how you’ll get your questions answered without going through them.
How the doctor or nurse practitioner responds could ultimately determine whether or not this 75-year-old person has access to their right to MAID. Right now, provincial regulation only requires conscientious objectors to, at a minimum, provide the patient with a publicly available resource that gives information about MAID. That could be a pamphlet, an address for a website, or the phone number for a service that provides information on MAID.
Navigating the healthcare system is challenging enough for the young and able-bodied among us. So imagine the burdens facing the 75-year-old cancer patient whose condition is rapidly declining, who is bedbound and who may not be able to use the internet. Maybe they don’t speak English or French as a first language, or they have difficulty seeing, hearing or speaking. As a society, we must ask ourselves whether it is acceptable for their doctor, the person most responsible for their care to say, “When it comes to finding someone who will answer your questions about MAID, you are on your own.”
If passed in its current form, Bill 34 would communicate that it is OK to tell desperately ill Manitobans that they are on their own. It reinforces provincial regulation that fails to provide a backstop for vulnerable Manitobans. And it would handcuff the College of Physicians and Surgeons of Manitoba, should it decide that its current policies on MAID unfairly privilege the views of objecting physicians over the rights of vulnerable patients.
In particular, the ambiguity of the language in Bill 34 raises major concerns. It proposes a ban on regulation that would require clinicians to “aid in the provision” of MAID. But what does “aid” mean in this context? Certainly, filling a prescription or providing a MAID assessment would qualify. But what about connecting a Manitoban who has questions about assisted dying with the provincial MAID team? What about giving accurate, non-judgmental information about MAID to a patient who asks about it? Does that constitute aid?
If interpreted broadly, this provision could suggest that physicians have absolutely no obligation to ensure that patients in their care have access to the compassionate treatment that they seek, and to which they have a right. In the most dramatic scenarios, this legislation could even communicate to objecting clinicians that they do not have to do the bare minimum that the College currently expects of them. That is, if they believe that providing a patient with a publicly available resource constitutes aiding in the provision of MAID. This would be unconscionable.
Clinicians do have a right to conscientious refusal. However, protecting that right need not, and indeed must not, obstruct Manitobans’ right to MAID. Thankfully, there are models that exist that strike a fair balance between these rights and interests. In Ontario, the College of Physicians and Surgeons requires doctors who object to MAID to provide patients who request it with what is called an effective referral.
An effective referral can come in many forms. And, according to a CPSO fact sheet, there are a number of ways in which clinicians can satisfy the effective referral requirement without communicating directly with a MAID provider. For example:
- They could notify a third-party agency or provincial care-coordination service, which would then put the patient in contact with a participating clinician.
- Alternatively, they could establish a willing point person in one’s practice team to handle all requests for MAID, and that person would make contact with a MAID provider or a third-party agency.
These are just a couple of examples. What should also be noted is that satisfying the effective referral requirement does not mean that the physician endorses MAID. Nor does it mean that the referral will necessarily lead to the provision of MAID.
- Related: Conscientious objection revisited
- Related: Court challenge to CPSO's policy on effective referral
The key here, though, is, and I quote, that “the referral must be made in a timely manner, so that the patient will not experience an adverse clinical outcome due to a delayed referral.” End quote. If a request is not acted upon quickly, it risks forcing the patient to live longer in a state of intolerable suffering. A patient could also lose capacity while they’re waiting, rendering them ineligible to access MAID under the current federal law. After all, time is of the essence for patients who request MAID. In the first half of 2017, one in three Manitobans who made a formal request for MAID died before their assessment could be completed.
Unlike the CPSO’s effective referral policy, Bill 34 fails to provide backstop for these vulnerable patients who are at risk of falling through the cracks. It privileges the interests of objecting clinicians over the rights of desperately ill Manitobans. It offers employment protections for healthcare professionals who refuse to participate in MAID without extending those same protections to clinicians who, as a matter of conscience, feel a duty to provide this essential service. In addition, it handcuffs the College in its ability to create and enforce regulation that ensures the safety and personal autonomy of suffering Manitobans.
These issues are complex and, yes, they call for us to reconcile competing interests and beliefs. But, as you consider changes to this bill, we urge you to strike a fair balance, one that doesn’t lay the heaviest burden on the shoulders of the most vulnerable person in the process. Their rights, their interests and their choices must come first. Thank you.
(Header photo credit: Argylemuseum/WikiMedia Commons)