Friday, October 3, 2014

There’s no “mushy middle” on euthanasia.

This article was originally published by Mercatornet on October 2, 2014.

Margaret Somerville
By Margaret Somerville


Many know the saying “You have to fish or cut bait”. Many fewer know the law’s equivalent, “You can’t approbate and reprobate”. But the Canadian Medical Association’s recent dealing with their 2007 Policy on Euthanasia and Assisted Suicide makes it seem they are unaware of the warning and wisdom these axioms communicate.

That CMA policy unambiguously declares: "Canadian physicians should not participate in euthanasia or assisted suicide."  Despite that, a motion passed at the recent CMA General Council meeting, which ostensibly was meant only to ensure freedom of conscience, has allowed the CMA to make the following statement in its intervener factum in the upcoming appeal in the Supreme Court of Canada in the Carter case:

“As long as such practices [as euthanasia and assisted suicide] remain illegal, the CMA believes that physicians should not participate in medical aid in dying. If the law were to change, the CMA would support its members who elect to follow their conscience [either to refuse or to undertake euthanasia and assisted suicide].”
(The Carter case centres on the issue of whether the Canadian Criminal Code’s prohibition of assisted suicide is unconstitutional as a breach of Charter rights to “life, liberty and security of the person” and rights against discrimination. The Supreme Court of British Columbia ruled the prohibition was unconstitutional, a majority of the Court of Appeal of BC reversed that ruling as contrary to the Supreme Court of Canada precedent in the Rodriguez case where the Supreme Court of Canada upheld the prohibition as valid. The issue now is whether the Supreme Court of Canada will overrule its previous precedent.)

The CMA President, Dr Chris Simpson, affirmed in an email, 

"The factum was reviewed and approved by several senior CMA elected officials and reflects both current CMA policy as well as the recent session at General Council and the results of our consultation processes undertaken during the past year."
So, what now is that policy?


The mandatory “should not participate in euthanasia and assisted suicide” has been softened to “the CMA believes that physicians should not” -- but only as long as they remain illegal. And the terms “euthanasia and assisted suicide” have been replaced by the euphemistic and confusing code term, “medical aid in dying”.  Most of us want good medical care when we are dying, but many believe that care should not include a physician inflicting death or state-sanctioned suicide, especially if it involves physicians.


The CMA is relying, in part, on the 91 percent approval of the freedom of conscience motion at its recent meeting, as justifying its abandoning its policy of clear rejection. Rather, they are leaving it to each physician to decide. So how valid is the CMA’s interpretation and use of the vote on that freedom of conscience motion? This is an important question because the CMA will be regarded as a major voice in the Carter case representing the views of Canadian physicians.


We know at least 71 percent of Canadian physicians and over 90 percent of palliative care physicians reject euthanasia and assisted suicide, so it seems very unlikely a majority of the 91 percent of CMA members who voted for it grasped that their approval would be used to legitimate such a change of policy.


In a front page Globe and Mail article, health reporter Andre Picard interpreted the approval of the motion as the CMA withdrawing its opposition. I argued that he was wrong and that the motion was only an overwhelming affirmation by CMA members of the freedom of conscience of physicians. It was to be welcomed, because that freedom is currently under serious attack.


But Picard’s interpretation was right, and I was wrong.


Did the CMA intend that interpretation when it introduced the motion? If so, was it dishonest not to tell CMA members that explicitly? If the CMA’s policy against euthanasia and assisted suicide were to be abandoned, why was this not put to a vote on the basis of a clear question? Quebec separation may not be the only issue on which we avoid clear questions in the hope of obtaining approval of a position that would otherwise be rejected.


Keep in mind that, worldwide, most medical associations oppose legalizing euthanasia and assisted suicide. The World Medical Association, with its 9 million physician members, and the American Medical Association and British Medical Association all reject it. Are Canadian physicians now different?


The CMA’s motion, as worded and subsequently interpreted, placed its voting members in an untenable situation. Their only options were to vote either for protection of conscience and for euthanasia or against both. The possibility of voting for freedom of conscience and against euthanasia, as I believe most would, was eliminated.


The CMA factum also provides two other insights regarding the changes in its values. It states:

“However, even if palliative care were readily available and effective, there would likely be some patients who would still opt for medical aid in dying over palliative care.”
That is, the CMA believes that respect for patient autonomy justifies euthanasia and assisted suicide and overrides rejecting these procedures, an affirmation of the basis of the pro-euthanasia argument. The factum continues:
“Moreover, it seems wrong to deny grievously ill patients the option of medical aid in dying simply because of systemic inadequacies in the delivery of palliative care.”
In other words, contrary to almost all ethical analyses, including by many pro-euthanasia supporters, the CMA does not even require access to fully adequate palliative care as a condition for providing euthanasia. This is appalling.

We can only speculate whether many members will leave the Canadian Medical Association, because of its failure to maintain its opposition to euthanasia and assisted suicide. If they do, will it change its position? That is to be sincerely hoped.


Margaret Somerville is the Founding Director of the Centre for Medicine, Ethics and Law, at McGill University, in Montreal.


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