Forced transfers are a ‘plague’ on the physician-assisted dying system, professor says

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Although physician-assisted dying (MAID) is legal in Canada, there are still issues when it comes to clinicians and institutions opposing the practice for religious or conscientious reasons. A widespread problem, highlighted in a series of conferences organized by Lakehead University, is the forced transfer of patients who wish to access MAID while they are in a facility that does not allow the procedure in its walls.

“I believe we have the best MAID system in the world,” said Jocelyn Downie, a university research professor in the faculties of law and medicine at Dalhousie University.

“We learned from those who came before us. We’ve taken the best and left the worst behind, and we have a system we can really be very proud of. That said, I think forcible transfers are a blight on this system,” she added, pointing out that forcible transfers “cause enormous suffering”, “violate people’s Charter rights” and are “indefensible. “.

Jocelyne Downie, Dalhousie University

Downie believes that the practice of forcible transfers needs to be stopped and that there needs to be more public education around MAID.

“We need to let everyone know about the right to referral, so clinicians know they don’t really have to provide MAID. No one is obligated to provide MAID in Canada,” she emphasized, noting that it is “also extremely important that patients understand that they are entitled to an effective referral if their clinician is a conscientious objector. “.

“And they [patients] have the right to stay and receive MAID wherever they are even if the institution is a contentious objector,” she stressed.

Downie addressed the question of what happens when freedom of conscience and freedom of religion meet WMA in the Harold G. Fox Distinguished Speaker Series hosted virtually by Lakehead University on January 25.

Downie explained that the problem is that “some people want to have MAID, some clinicians want to provide MAID, but some clinicians don’t want to participate in MAID, and some institutions don’t want to allow MAID within their walls.” .

“So you have a mutual incompatibility of desires, values, beliefs. You have patients against clinicians who object, consenting clinicians against clinicians who object, patients against institutions who object, and consenting clinicians against institutions who object,” a she noted, pointing out that patients suffer because they cannot access MAID at all or are forced to. therefore by painful means (i.e. forced transfers).

She also noted that there are also potential harms for objecting clinicians who have “the fear, the anxiety of being forced to make a choice between violating” their religious or conscience beliefs and “risking professional discipline.” There’s also “the moral distress that comes from being forced to make that choice.”

“Some fear they will be forced to leave a particular area of ​​medicine, or leave the province they are in, or leave medicine altogether if they are forced to participate in the provision of MAID,” said she added.

Downie stressed that the “issue is significant” because there are “a number of religious institutions that oppose it”, as well as palliative care units or hospices that oppose it, and “often these are the only specialized care sites, or they are the only health facilities for miles and miles.

She stressed that clinicians “have a professional obligation, a legal obligation, to inform patients of all potential options available to them.”

“The basic principles of informed consent law are [such] that when I try to obtain consent for a particular intervention or course of action, I must disclose to the patient all the options that are available to the person, and MAID is a legal option,” said she added.

In Ontario, she noted, clinicians “clearly have a duty of effective referral.”

“The College of Physicians and Surgeons of Ontario (CPSO) has a standard of practice that states that when a physician refuses to provide MAID for reasons of conscience or religion, the physician must not abandon the patient. An effective reference should be provided. An effective referral means a referral made in good faith to an unopposed, available, and accessible physician, nurse practitioner, or agency. And referral must be made in a timely manner to enable the patient to access medical assistance in dying,” she said, adding that patients “should not be exposed to adverse clinical outcomes due to delayed referrals”.

She noted that CPSO policy has been challenged in Christian Medical and Dental Society of Canada v. College of Physicians and Surgeons of Ontario, 2019 ONCA 393. The company argued that the policy violated s. 2 Charter rights.

“The Ontario Court of Appeal, however, upheld the policy,” she said, noting that the court ruled there was “no violation of physicians’ equality rights.”

The court determined that “there had been an infringement of the doctors’ freedom of religion, but that it was demonstrably justified in a free and democratic society. This is the test of state action, if it violates a Charter right, it is only allowed to continue to exist if it is demonstrably justified in a free and democratic society,” he said. – she added, noting that the court “weighed the rights of physicians against the rights of vulnerable patients, and they found that the rights of vulnerable patients won out and demanded the policy.”

She said part of the ruling “foreshadows what will happen in the context of institutions” that oppose MAID.

Downie explained that the question regarding institutions is “less settled in law”, but “the best arguments lead to the conclusion that forced transfers by state-funded institutions are not permitted”.

She noted that the Patients First Act “provides that a direction from a local health authority shall not be unjustified, as determined under section 1 of the Canadian Charter of Rights and Freedoms, compel a health service provider that is a religious organization to provide an unreligious service related to the organization. She also noted that there is a “similar provision stating that the Minister cannot direct the board of a hospital to provide any service contrary to religion related to the organisation”.

“This law says that’s the case even when it’s in the public interest to issue a directive,” she added, noting, however, that when it comes to Charter claims , she “would argue that there are no rights under section 2 of the Charter for institutions. ”

Downie speculated that if the Supreme Court of Canada were seized of a case on this issue, it would rule that there is no s. 2 rights for institutions.

“Now what if I’m wrong and they [the Supreme Court] say, ‘yes, there are charter rights on freedom of religion for institutions? I would say then that hospitals cannot really claim this right because unlike, for example, a school which is created for the purpose of providing a particular religious education, hospitals are not created for religious purposes and that would be a part of any test the court would apply if faced with a religious freedom claim,” she explained,

“It is very important to note that faith-based institutions in Canada have a religious history, but they are not created for religious purposes. They are set up for the purpose of providing health care, for research,” she pointed out, noting that this is evident when an institution’s mission statement is examined.

“But even if I’m wrong about that,” she added, “I still think an institution would lose because you’re going to get the balance that we saw in the case involving the clinicians [and the CPSO]. You are going to have the rights of the institutions opposed to the right to life, the right to liberty and to the security of the person, to the patient’s freedom of conscience, to the patient’s right to equality.

Downie noted that any rights “vulnerable patients will again outweigh freedom of conscience, freedom of religion claimed” by institutions.

She also pointed out that the Patients First Act understands the word “unwarranted” and would argue that requiring MAID is justifiable.

“I don’t think it would be a violation of law to order any institution to provide or permit MAID to be provided within its walls,” she added, noting that a “reasonable conclusion is that state-funded institutions have an obligation to allow MAID within their walls and local health authorities, networks or a minister of health can, indeed, issue guidelines against forcible transfers and tell facilities that they must allow MAID within their walls.

The next question she highlighted was “how can we make the practice reflect the law and reflect the ethics?”

Some options she considered were challenging a hospital’s policy on involuntary transfers in court, “mobilizing in Ontario to get the Legislative Assembly to make MAID a condition of public funding or enforce” its “existing laws,” or “mobilize to persuade publicly funded institutions to allow MAID within their walls.”

According to Statistics Canada report published on January 10, the “number of physician-assisted deaths in Canada has increased steadily since the introduction of the law”.

“In 2019, there were 5,425 physician-assisted deaths in Canada, representing 1.9% of all deaths. In 2020, this figure increased to 7,383 deaths (2.4% of all deaths in Canada), which represents a 36.0% increase in the number of MAID recipients from 2019 to 2020,” explains the report.

According to the report, cancer was “listed as an underlying medical condition for 67.5% of all written requests for MAID in 2019 and 2020, regardless of the outcome of the request”.

“Cardiovascular (12.4%) and chronic respiratory (11.2%) conditions form the second and third largest groups of medical conditions for which applicants sought MAID in all application results,” adds The report.

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