McKitty case: Ontario Court of Appeal decides that religious beliefs are important in brain death determination.

Alex Schadenberg

Executive Director, Euthanasia Prevention Coalition

Taquisha with her daughter.

Taquisha McKitty, of Brampton was declared brain dead on September 20, 2017, after a cardiac arrest on September 14. McKitty died of natural causes on December 31, 2018.

Taquisha's family challenged the declaration of death at the Ontario Superior Court. On June 26, 2018 Ontario Superior Court Justice, Lucille Shaw, decided that McKitty was legally dead and ordered her life-support withdrawn in 30 days.

McKitty's family appealed the decision to the Ontario Court of Appeal.

Justice Shaw stated that McKitty was dead and that the Charter of Rights and Freedoms did not apply to McKitty, because it only protects “persons,” and because McKitty was clinically brain dead, she was not legally a “person.”

Hugh Scher

At the Court of Appeal, Hugh Scher, the lawyer for the family, argued that McKitty’s Charter rights were breached in order to pronounce her dead. Scher stated:

"To say that she doesn't have Charter rights because she is dead is putting the cart before the horse."

“The Court’s predetermination of Taquisha’s death to justify non-application of the Charter of Rights and Freedoms ... dehumanizes Taquisha as a non-person from the outset,”

“Taquisha is an individual under the law deserving of Charter protection.”

Yesterday, the Ontario Court of Appeal issued a decision, in McKitty, even though the case was technically moot after Taquisha died of natural causes. According to the family of Taquisha Mckitty:

The Ontario Court of Appeal ruled that religious values and beliefs are essential to who we are as human beings and to the manner by which we chose to live our lives. The court has put off however the question of whether or not religious beliefs can be relied on to alter the common law definition of death. 

Taquisha's parents

Today’s court decision overturns the reasons given in the lower court and emphasized the importance of religious freedom, diversity and equality in Canada. Taquisha McKitty’s father Stanley Stewart brought this court challenge on his daughter’s behalf. He states as follows:

If a person can’t re​ly on their most sacred religious values and beliefs at the very moment of their death when they would most expect to derive comfort from them, one is left to wonder what is the value of a constitutional protection of religious liberty and equality. Courts and legislatures will need to address this mischief of the law in the future.

Death is legally and medically determined by employing one of two sets of criteria. Cardio-respiratory death is determined by the complete cessation of cardio-respiratory function. Neurological death is determined by the complete cessation of all neurological function. Both are legally and medically acceptable means to determine death throughout Canada. 

What we were asking is for the court to apply basic constitutional protections of life, equality and religious freedom that are enshrined in laws in jurisdictions like New York state, New Jersey, California, and Illinois states Taquisha’s father Stanley Stewart. 

The notion tha​t Taquisha McKitty would be considered alive in New Jersey where her religious freedoms are respected but would be considered legally and medically dead in Toronto, Ontario, only a hundred miles away is extremely troubling and must be corrected by lawmakers, states Stewart. 

The law mu​st change to respect and accommodate religious difference in the definition and determination of death if basic Canadian values of pluralism, diversity and religious liberty are to flourish, states Toronto lawyer Hugh Scher who represented the McKitty family in court as well as other families across Canada.

May Warren, reporting for the Toronto Star interviewed ethicist, Trudo Lemmens, a professor and Scholl chair in health law and policy at the University of Toronto who called the ruling "a sophisticated judgement in the discussion of what the definition of death means." He stated:

It’s important, he added, that the appeal “court recognizes that the definition of legal death is not just a medical fact,” but involves “value judgments about the determination of when somebody is no longer declared to be a person.”

This gets to an “ongoing debate” about “who counts as a human being,” he added.

Decisions related to ones personal beliefs must be respected, and yet science should be the determiner of medical truth. The problem arises when someone, who is not dead, is declared legally dead.

Link to the article in the Law Times.

Canada Goes Softly Authoritarian

Alex Schadenberg
Executive Director - Euthanasia Prevention Coalition

Wesley J Smith

Wesley Smith wrote a thought provoking article that was published in the The American Spectator on October 3, 2019.

The article concerns issues of freedom of speech, religion, thought and action. The article has a wider focus than euthanasia, but I will only publish his comments on euthanasia, which were well said, especially considering the pressure on St. Martha's hospital in Antigonish to provide euthanasia and the negation of physicians conscience rights in Ontario. Smith states:

Canada has become quietly authoritarian, its government and courts increasingly persecuting a cadre of its minority citizens. No, victims aren’t subject to arrest, nor are concentration camps being opened. Rather, this is a soft despotism — authorized by law — that compels victims to choose between their consciences and full participation in Canadian society.

Who are these wronged Canadians, you ask? Not racial minorities. Not refugees. Not sexual subgroups. Those vulnerable populations are amply protected and embraced in society. No, the victims of Canada’s soft authoritarianism are religious people who are being systematically and officially discriminated against because they refuse to violate their faith principles that conflict with reigning secularist dogmas.

Smith then writes about the imposing of euthanasia in Canada. He states:

The most explicit assaults on religious freedom have been mounted in the medical fields against Catholic (and other) religious professionals and institutions. The locus of the persecution has been the legalization of euthanasia. In 2015, the Canadian Supreme Court conjured a broadly defined right to be killed by doctors when diagnosed with a serious medical condition that causes “irremediable suffering.” Parliament soon passed a national law legalizing this form of homicide, subject to weak limitations. Since health care is administered at the provincial level, each of Canada’s provinces also passed euthanasia-enabling statutes.

That presented a significant problem for faithful medical professionals and church-affiliated institutions. Most notably, the Catholic Church forbids euthanasia. Thus, national legalization raised a crucial question of whether or not religiously dissenting doctors and Catholic medical facilities should be granted conscience exemptions from participation in doctor-administered death. The Supreme Court’s ruling left that issue for another day — as did the federal statute. Not so at the provincial level. After concentrated political pressure from religious organizations and citizens, most provinces crafted conscience exemptions allowing dissenting medical professionals to escape participation in euthanasia, while also publishing lists of M.D.s willing to administer “medical aid in dying” (MAID), the official euphemism for euthanasia in Canada.

... the province’s medical regulatory body, the College of Physicians and Surgeons of Ontario. This ethics rule requires all doctors approached by a legally qualified patient for euthanasia to either kill the patient (pursuant to the law’s procedures) or provide an “effective referral,” meaning to personally procure a doctor or certified nurse practitioner that the dissenting physician knows to be willing to do the deed. 

Perceiving such participation to be a grievous sin with eternal implications, some Catholic doctors sued, arguing that requiring them to be complicit in euthanasia violated the fundamental Charter right to “freedom of conscience and religion” — a protection more robust than the U.S. Constitution’s First Amendment’s guarantee of the “free exercise” of religion.

Considering the explicit guarantee in the Charter — and given the unoppressive “list” alternative crafted in other provinces — the case appeared strong. But with Canada secularizing at Mach speed, the Ontario courts were far more interested in forcing faithful doctors to yield to contemporary secular values than in protecting their Charter right to religious freedom. Accordingly, a trial court and court of appeals both ruled that the right to “equal and equitable access” to all legal health care paid for by Canada’s socialized medical system, including euthanasia, abortion, and interventions for gender dysphoria — a right not protected in the Charter — trumps doctors’ enumerated “freedom of conscience and religion.”

Think about what this means. Unless the national Supreme Court intervenes, Ontario doctors face legal compulsion to be complicit in the taking of innocent human life. The only alternatives are restricting their practice of medicine to fields like podiatry in which such requests are unlikely or leaving the profession altogether. If that isn’t oppression, I don’t know what else to call it.

Smith is correct. Slowly but methodically, the government is imposing secular demands upon the culture and abrogating the rights of those who disagree. A pluralistic society is one where everyone has a respected and equal voice, whereas the Canadian governments are imposing a common belief system upon a country and thus reducing pluralism to authoritarianism.

Canadian euthanasia party propaganda story.

Alex Schadenberg
Executive Director - Euthanasia Prevention Coalition

The other day I published an article about a Seattle assisted suicide party propaganda story. One of our supporters sent me the link to a Canadian euthanasia party propaganda story, a story that I did not write about when it was first published.

Similar to the Seattle story, the Canadian story is designed to promote MAiD (euthanasia) and break-down social barriers towards euthanasia.

The story by Susie Adelson was published by Toronto Life features Adelson's grand mother, Sonia Goodman (88). 

Goodman visits Sunnybrook hospital in pain and with sepsis and tells the medical team that she wants them to end her life. Adelson writes:

At first, the doctors suggested palliative care, but she was adamant: no more surgeries, no more drugs, not even antibiotics. She had watched her friends pass away and my mother suffer, and she didn’t want to go through that. Neither did I: seeing my mom languish in a hospital bed for months left me anxious and terrified of death.

Adelson is concerned that her grandmother would languish in a hospital bed for months. Clearly this statement is designed to cause fear but it indicates that she is not terminally ill.
 
There is more to the story. The woman does not appear to be terminally ill - "natural death is not reasonably forseeable" but demands and receives death by lethal injection.

The article raises a concern with the social approval of elder suicide. When the doctors decided that she was qualified to die, the decision seems based on her age (88). The fact that she demands to die seems very similar to suicide. When did approving suicide based on age become acceptable?

Adelson then builds the propaganda by emphasizing how they all shared a celebration drink and spoke about their memories of Goodman. Adelson writes:

Relishing the spotlight, she encouraged us to go around the room and share our memories of her. She was delighted when person after person remarked on her glamour. When it was my turn, I thanked her for giving me my mother—and for her advice to never leave the house without a coat of lipstick. She laughed, and I held her hand. When it was time, we raised our Dixie cups: “To Yaya!”

We all want the focus to be on us in our final days, but it doesn't require a lethal injection to make it happen.

The euthanasia lobby is promoting death. As I stated in my response to the Seattle article - assisted suicide was once an avant garde concept, now normalizing assisted suicide is really another propaganda tool.

Its time for real journalism with real life, juxtaposing stories, complicated reality, and not propaganda.

Judge dismisses lawsuit against doctors who withheld life-saving treatment, without consent, from a veteran.

Alex Schadenberg
Executive Director, Euthanasia Prevention Coalition

Joy Wawrzniak, DeGuerre's daughter.

An 11-year battle to obtain justice for a veteran who was denied life-saving treatment against his wishes and without the consent of his daughter, the legally appointed power of attorney may have ended without justice.

On September 22, 2008, Douglas DeGuerre died after he was down graded from full code to DNR without his consent or consulting his family.

On Friday, August 23, 2019 Ontario Superior Court Justice Peter Cavanagh dismissed the $2.2 million lawsuit against Dr Donald Livingston and Dr Martin Chapman by DeGuerre's daughter, Joy Wawrzyniak.

• Lawsuit could set precedent about end-of-life decisions.

The Canadian Press article by Michelle McQuigge reported that Justice Cavanagh decided that the physicians made an appropriate decision about DeGuerre's health and took sufficient steps to communicate their actions to his daughter. McQuigge reported:

"Should Dr. Chapman and Dr. Livingstone have taken different or additional actions to try to reach the plaintiff to discuss the DNR order with her after it was made? Perhaps," Cavanagh wrote, noting they could have stressed the urgency of the situation or provided personal mobile numbers. 

"Without the benefit of hindsight, however, I am unable to conclude that actions taken by Dr. Chapman and Dr. Livingstone to communicate with the plaintiff about the DNR order would not be acceptable behaviour for a reasonably prudent physician in the same circumstances."

According to McQuigge:

The court ruling said Chapman then left a voicemail for Wawrzyniak in which he said he wished to discuss her father's condition, but made no mention of the newly implemented order and indicated "nothing has particularly changed." 

Shortly after receiving the voicemail, court heard Wawrzyniak went to the hospital and found her father struggling to breathe.
She summoned hospital staff who tried to help, but court heard that when Livingston arrived he told Wawrzyniak that resuscitation would be of little benefit and only cause suffering. Chapman asked staff to stop trying to revive DeGuerre. 

Wawrzyniak, a registered nurse, tried administering help herself, but was unsuccessful and DeGuerre died a short time later. She discovered the next day that her father's status had been changed.

Justice Cavanagh erred by ignoring the fact that Chapman and Livingston made the decision without consultation. This was not an emergency situation where there is no time to consult the power of attorney.

Wawrzyniak has continued her pursuit of justice for 11 years. In September 2014 the Health Professions Appeal and Review Board found that the doctors violated the law by unilaterally imposing a do-not-resuscitate order on Douglas DeGuerre against his family’s wishes.

The decision by Justice Cavanagh dismissed the lawsuit against Dr's Chapman and Livingston.

• Who decides when you die?

The doctors made the decision against the wishes of DeGuerre and his daughter, who was the legally appointed power of attorney. Even if physicians disagree with the family, the rights of the individual and their family should supercede the ideology of the doctors. Further to that, in Ontario, the Consent and Capacity Board exists to determine disputes between physicians and families.

Thank you Joy Wawrzyniak for continuing the battle for justice.

774 Ontario euthanasia deaths in the first 6 months of 2019.

Alex Schadenberg
Executive Director, Euthanasia Prevention Coalition.

The Ontario Office of the Chief Coroner released the updated data for MAiD (euthanasia and assisted suicide) deaths in Ontario indicating that since legalization (June 17, 2016) there have been (3303) 3302 euthanasia deaths and 1 assisted suicide death, as of June 30, 2019.

According to the Ontario data, there were 774 reported assisted deaths in the first six months of 2019, 1499 reported assisted deaths in 2018, 841 reported assisted deaths in 2017 and 189 reported assisted deaths in 2016.

The number euthanasia deaths are increasing. There were 406 reported assisted deaths between April 1 and June 30 and 368 reported assisted deaths in the first three months of the year.

In March I published an article explaining that the assisted deaths, in Canada, increased by more than 50% in 2018 from 2704 reported assisted deaths in 2017 to 4235 reported assisted deaths in 2018.

The Euthanasia Prevention Coalition urges its supporters to show the Fatal Flaws Film in their communities.

Last week I received a call from an Ontario nurse who was feeling pressured to participate in euthanasia. Today I received another call from an Ontario nurse, in another community, who was concerned about pressure being placed on nurses to participate in euthanasia.

In May, the Ontario Court of Appeal upheld a lower court decision that Ontario doctors did not have do euthanasia but they had to do an "effective referral" meaning referral for the purpose of the act.

Conscience rights for medical professionals in Ontario need to be protected.

The Euthanasia Prevention Coalition works with Compassionate Community Care (CCC) to offer advice and support for family members and friends who are concerned about an assisted death or end-of-life medical treatment decision. Contact CCC at: 1-855-675-8749.

Contact the Euthanasia Prevention Coalition if you have concerns with the circumstances related to a euthanasia death at: 1-877-439-3348.

Intellectually disabled persons deserve equal respect

This article was published by Mercatornet on July 9, 2019.

By Audrey Cole

In a tribute to the late Jean Vanier, Margaret Somerville refers to his memoir in letters. She writes:

“Jean Vanier’s letters gently show that among the many gifts disabled people can offer us are lessons in hope, optimism, kindness, empathy, compassion, generosity and hospitality, a sense of humour (balance), trust and courage. But, as Jean Vanier recognizes, to do that they must be treated justly; given every person’s right to the freedom to be themselves; and respected as members of our community. That requires us to accept the suffering, weakness and fragility we see in them, which means, as Jean Vanier emphasizes, we must first accept those realities in relation to ourselves. Most of us find that an enormous challenge and flee.”

I could think of no better way to open my formal contribution to this Colloquium than those words. Neither my late husband, Fred, nor I, could have lived with ourselves had we flown from that challenge when our son, Ian, our only child, was born 55 years ago with some now corrected physical disabilities and what has turned out to be a very severe intellectual disability.

We soon became conscious of those gifts to which Jean Vanier refers. Ian offers such lessons to the world at large on a daily basis. I suspect that Ian, himself, has no understanding or recognition of his pedagogical skills or of their effect on others but, even without the capacity to speak, read, write or understand unfamiliar words or situations, he is a skilled and persistent teacher.

However, to learn from Ian, one has to be willing to believe that he has something to say. And therein lies the problem. Justice, freedom to be who we are and respect as equals are “givens” for most of us. They are not something we must constantly seek out, fight for or defend day by day. Those “givens” are not there for people such as my son!

Recorded history suggests it was ever so. Suffice to go back a mere hundred years for an example: that keeps us within the lifetime of Ian’s Dad who, were he still with us, would be fast approaching 101.

In 1919, Mr Justice Frank Hodgins presented his commissioned Report to the Ontario Provincial Parliament on The Care and Control of the Mentally Deficient and feeble-minded in Ontario.

Justice Hodgins called for the immediate segregation from the community of any offspring of those identified as “feeble-minded,” noting the “terrible menace to the public" they represented. He shared the commonly held belief that not only was so-called “feeblemindedness” hereditary, it inevitably implied a proclivity for criminal behaviour and promiscuity. He opined that women so labelled should be "permanently deprived of their liberty" for, "with animal passions fully developed, and the sense of propriety and responsibility dwarfed, with deficient will power, these unfortunate women would remain beyond the power of redemption if left at large.”

What if they wished to get married? This supposed menace led Justice Hodgins to recommend new legislation prohibiting marriage of any “mentally defective or feeble minded” person and ensuring imprisonment of anyone knowingly and wilfully marrying or having “carnal connection” with such a person. Obviously, the fundamental right to develop natural, loving relationships was to be denied to such people.

The prejudices and lack of respect reflected in Judge Hodgins’ report were not restricted to his era. They continue today. My son’s life experience provides numerous examples of shockingly disrespectful statements and events, some in a medical context, others in broader social contexts.

Ian was three weeks old before I recognised the insults to which both he and I had, already, been subjected. Ian had set his own timetable for arrival and did so three weeks earlier than expected, late in the evening before my obstetrician was to take an early morning vacation flight. I appreciated that he came in to deliver Ian but he left immediately.

Three weeks later I saw him again. He greeted me by saying that he had been “so surprised” when I had given birth to “a Mongolian idiot!” I was shocked! With only a three-week experience in the disability world, I knew that such terms were no longer acceptable. (However, I must say that, with the exception of that one ignorant obstetrician, Ian, Fred and I have had the benefit of the care and concern of some wonderful doctors.)

That experience made me think! Why had Ian been whisked away before I had chance to see him face to face? He had been placed for a few moments in the curve of my arm as we were quickly wheeled into the recovery room and immediately separated. I had seen something from that angle, but what? My family doctor arrived and told me there were problems, the tied tongue which had been addressed, the club foot which would require medical intervention and “other things that we’ll talk about later”. I spent a sleepless night wondering what I had seen that had not been explained, what were those “other” problems?

The moment I saw my baby the following morning, I knew. He had Down syndrome. The nurses were forbidden to talk to me except to say I was not allowed to breast feed as intended and there was no point in arguing as I had already been given medication to stop production of milk. No consultation, whatsoever! I felt helpless!

As soon as my husband arrived to visit I sent him to our family doctor not only to confirm my belief about our son but also to ask what was going on!

Although I knew he would be ineligible under laws of the time, when Ian reached school age I phoned the school board and asked about the process were there to be a child of school age not attending school. The answer was “when we hear about it, as we usually do, we approach the family.” “Well”, I said, “I have never been approached and my son doesn’t attend school.” “Madam, your son must attend school!” was the instant response. I replied that my son had Down syndrome and was immediately cut off by the comment: “Oh, well, if he has a disability we don’t take any action! He doesn’t have to go to school!” Despite already knowing, the arbitrary and disrespectful dismissal was yet another shock!

In the mid 70s, Ontario’s Minister of Education and other Cabinet members were holding public meetings around the Province. I attended with other parents of children excluded from school. By chance, two of us met the Minister in a doorway. I seized the opportunity to tell him that we were protesting the exclusion from school of our children with severe disabilities. His response was instant, “Surely you don’t expect us to be in the business of building hospitals for the vegetables -- or whatever you call them!” This time, I was ready. “Well, Minister,” I said, “we certainly don’t call our children ‘vegetables’! We call them our school-aged children and we expect them to be in school!” He turned and walked away without further comment.

The most hurtful example was at the funeral of my husband’s oldest and closest friend from high school days. At the graveside, Ian and I were introduced by Fred to a doctor educated in Canada but practising in the US. He was the son of another of their high school contemporaries. Ignoring Ian, when introduced, the doctor asked, “How old is he?” Somewhat taken aback, we answered automatically. “Ahh!” he responded, “Just before amniocentesis!”

There seemed to us to be no limit to the disrespect. The physical and sexual assaults Ian has experienced in his day programmes and the lack of responsibility of those people paid to provide for his care at those times is hardly believable. Equality, in addition to respect, implies equal justice. Where is the justice for those who cannot speak for themselves? There was no justice in Ian’s experiences of assault, physical and sexual, and only partly because some perpetrators also had intellectual disabilities. That was not always so.

In his early teens but still in diapers, Ian arrived home from his day programme with a lacerated penis, still bleeding. No staff would admit to awareness of the situation yet Ian was in a toilet training programme and unable to diaper himself. He had no speech and insufficient manual dexterity to manage knives, scissors or other sharp instruments or even a zipper. Enough said!

The matter of legal capacity and people with intellectual disabilities has been a concern of the Community Living Association for over half a century. We see laws that rely on cognitive/functional tests for legal capacity as discriminatory. Such tests put people with intellectual (cognitive) disabilities in immediate jeopardy of being placed under guardianship from the age of majority, thus losing their status as equal citizens solely on the basis of disability.

The most blunt and graphic description of guardianship I ever heard was in the early ‘90s at a hearing of an Ontario Legislature Standing Committee. Explaining to an Opposition Member the difference between advocacy and guardianship, Trudy Spinks, a senior Government lawyer, said that “guardianship replaces the person!” (Ms Spinks retires in July from her current position as Ontario’s Deputy Public Guardian and Trustee).

Who on this earth wants to be replaced? Although heading to age 92, I have no wish to be replaced should my capacity diminish. Nor did Ian’s dad, nine years my senior, have such a wish. Nor, I suspect, do any of us in this room and elsewhere, wish to undergo a transformation of social status to legal non-personhood and its almost inevitable lowering of equal respect. Such social diminishment is particularly detrimental for people already struggling to be accepted as equals.

So why would we assume that people such as my son or people whose cognitive skills are diminishing, would wish to be demoted to that status? I can only assume that it truly is, as Jean Vanier suggests, because we, society at large, consciously or otherwise, do not always consider such people as deserving of equal justice or even of equal respect.

It was that lack of respect that galvanised my efforts to bring together people who might seek a solution. In the mid 80s, provincial governments were reviewing their guardianship laws in light of Canada’s new Charter of Rights and Freedoms. My provincial Association’s lawyer served on the Ontario Government’s Advisory Committee. Despite significant modernization, nothing in the proposed new Substitute Decisions legislation would change the assumption that the Ians of the province needed guardianship.

I wrote a strong letter of protest to the President of the Association. The response was a request that I chair a task force. My fundamental question for the task force was one of respect versus non-respect, why people like me, with presumed capacity, were free to use whatever help we could muster in making decisions yet people like Ian, whose capacity was questioned, had to prove they could make decisions independently without such help. We worked hard.

We didn’t manage to stop adoption of the Substitute Decisions Act. We did get prohibitions into the Act under which the Court cannot appoint a guardian if it is satisfied that the need for decisions to be made can be met by alternative means that don’t require a finding of incapacity and are less restrictive than the appointment of a guardian.

We can’t change the nature of guardianship or its history which dates from Roman Empire times but the nature of society can be changed. Guardianship belongs back in that earlier world when Justice Hodgins could talk with authority about the need for the “care and control” of people who, like Ian, had intellectual disabilities. We no longer live in such a society.

If we really think about it, we can see that there is no place for guardianship in a society that says it believes in equality, justice and respect. It just doesn’t fit! In today’s society, we cannot simply look for ways to “replace” people if we think they don’t measure up to our expectations.

Rather, equality, justice and respect call for cooperation and support and for helping each other to share the benefits (and the pains) of society. And that is what supported decision-making does. It is what I want should my cognitive capacity be diminishing. I suspect that it is what most of us who can imagine a future would want. We now have to provide it.

Audrey Cole has deep roots in Canada’s Community Living movement. The birth of a son with Down’s syndrome energized her advocacy in human rights, values and ethics and the social well-being of disadvantaged people. She shares the concern of the disability rights movement that the incessant call for assisted suicide sends a cruel but implicit message that life with disabling conditions is a life not worth living.

This is the text of a talk that she gave last month in Quebec at the 9th International Colloquium of the International Association of Catholic Bioethics on “Caring for Persons with Compromised Agency: Navigating Complexity”.

Conscience rights of physicians and the decision of the Ontario Court of Appeal

This article was published on June 30, 2019 by the Physicians Alliance Against Euthanasia.

By Dr Catherine Ferrier
President: Physicians Alliance Against Euthanasia

All Doctors are Needed

On May 15, 2019, the Court of Appeal for Ontario confirmed a lower court ruling defending the requirement of the College of Physicians and Surgeons of Ontario (CPSO) that dissenting physicians make “effective referrals” for euthanasia (“MAiD”).

We consider this decision to be not only wrong, but founded upon non-factual assumptions, contrary to the needs of patients, and contrary to the opinion of those doctors most aware of the needs of terminally ill patients. The Canadian Society of Palliative Care Physicians (CSPCP) in a recent messaging update states, notably: that MAID referral should not be the responsibility of the individual physician, but requires a separate, publicly accessible information service, and, of course, that dissenting physicians should be respected in their choice.

In its judgement the Court described CPSO policy in these terms:

“[The policies] strike a reasonable balance between patients’ interests and physicians’ Charter-protected religious freedom.”

Underlying this assessment lies the false assumption that the “rights” of objecting doctors are a threat to the “interests” of patients. Needless to say, in our view, the reason these doctors exercise their charter rights is to protect the interests of their patients.

In response to the judgement Dr. Nancy Whitmore, registrar and CEO of the CPSO, spoke of “ensuring patients get access to the care they need”. Again, we believe that euthanasia is not medical care, and that if patients were getting the care they needed, the demand for euthanasia would approach zero.

Above all, there is one key fact that has been insufficiently considered in this debate: that the vast majority of patients do not want to die, that they do not ask for euthanasia, and that they refuse it when offered.

In other words, the perception that objecting doctors, with their narrow personal prejudices, are somehow in conflict with the “interests” of their own patients is plainly false with regard to the majority. On the contrary, at great personal cost, these doctors are publicly defending the sort of care that is desired by the majority of patients.

It is evident that we are facing two distinct clienteles requiring two distinct services, and that there is a large discrepancy in the numerical importance of the two. In the Netherlands, for example, where euthanasia has been aggressively marketed to patients for nearly twenty years, only 13 % of cancer patients consent to die in this manner. We must ask ourselves, therefore: what acceptance of negative consequences are we prepared to require of the 87% who do not?

In this regard, The Canadian Society of Palliative Care Physicians (as above) maintains that providing euthanasia is a service “distinct from palliative care”; and that “The Canadian public must be able to continue to trust that the principles of palliative care remain… to help people live as well as they can until their natural death.” A particular criticism is made of the so-called “duty to inform” being promoted by some euthanasia activists, which would require doctors to systematically inform seriously ill patients of their “right to die”. The CSPCP rightly observes that this “… could exert undue pressure or cause subtle/overt coercion of patients.” i.e. it is nothing less than universal suicidal suggestion imposed upon this vulnerable group.

Euthanasia enthusiasts often make their case in these terms: “It is legal; we pay for it with our taxes; and we have the right to enjoy it”. We would respond however, that the very same can be said of the life-centered care desired by the majority. This majority should be able to access medical care with the confident expectation that those doctors randomly assigned to them would never “give a lethal drug to anyone… nor… advise such a plan” (Hippocrates) , i.e. that they will be allowed to feel safe.

That is the root problem with the evolving forms of euthanasia implementation in Canada: The entire industry is being retooled to optimize the satisfaction of a small minority, to the serious detriment of that much larger share of patients who are non-suicidal. Or, as has been remarked (Le Devoir, July 2016): 

“Every citizen has the right to a smoke-free environment, but not to one that is free of euthanasia…”

Let us remember that the court cases leading to the legalization of euthanasia were only concerned with the decriminalization of such an act. It was decreed that a consenting doctor might euthanize a patient, under certain circumstances, without going to jail. That is all. It was never stated that society at large, or the medical profession (much less the individual doctor) would ever be responsible for providing such a “service”.

More generally, health care services, being accessed by different clienteles having different desired outcomes, must adjust to these competing demands. There may be specialized delivery systems, and there may be general facilities where the default procedure will logically favor the expected majority, ensuring reasonable minority access without reducing the quality and availability of majority service.

In this case, we believe that minority access should be perfectly satisfied with the simple legality of euthanasia, coupled with the free dissemination of information regarding service availability. Public funding for such information (not to mention funding for the procedure itself) would be a further, non-obligatory, gesture of goodwill.

On the other hand, consider the new standard of care required by the College of Physicians and Surgeons of Ontario and upheld by the Court of Appeal, which will lead to patients justifiably living in fear of being treated by doctors who would be happy to euthanize them; who patiently (and even insistently) inform them of their “right to die”; and who await only the required consent to proceed. Is this not a paradigm hugely unfair to the non-suicidal majority?

But even that is not all, for onerous regulations requiring some physicians to do that to which they cannot in good conscience consent will necessarily force them out of practice or out of the country. How, we ask, can the satisfaction of a minority demand possibly justify the purging of doctors who are urgently required to serve the majority? There are not even enough doctors as things are now! And yet some of our best are to be drummed out under accusations of ideological impurity? The very idea surpasses the notion of “absurd”.

Let us be clear:

• The exercise of conscience rights by individual doctors does not threaten the interests of patients (Overall, doctor conscience has historically provided the long-term guarantee of those interests).
• The refusal of individual doctors to collaborate in euthanasia does not significantly affect access to that service (Supply is organically dynamic and grows with demand).
• It is not rational to reconfigure the entire health care system for optimal minority satisfaction when that transformation destroys the infrastructure designed to serve a different (and quantitatively greater) purpose.
• If there are two distinct clienteles with two distinct treatment models, then two parallel streams must be allowed to evolve independently.

And most importantly, the very last thing we need is to lose professionals who are ideally suited to serve.

Make euthanasia unimaginable.

Sincerely,
Catherine Ferrier
President

Attacks on Conscience Rights are also an American concern.

By Mark Hodges (EPC researcher)

The Canadian Parliament is debating whether doctors may follow their vow and conviction to “do no harm,” or if government can force them to violate their most sacred and deeply held belief against euthanasia (lethal injection).

On the crucial conscience rights issue, the United States is only a step behind Canada, and may be closing in fast.

• Video: Conscience rights are essential (Link).

Saskatchewan MP David Anderson sponsored the Conscience Rights protection bill (C-418) that will determine whether conscientious objecting physicians will leave their profession, or forced to be complicit with killing.

Over the past decade, a debate has arisen over “competing rights,” namely, the fundamental right of physicians and other citizens to practice with integrity and conscience, versus a new “right” of patients to be euthanized upon request, regardless of their doctor’s convictions.

Assisted suicide advocates in both Canada and the U.S. say doctors’ rights must be overridden or compromised in favor of the "right to die". In 2016, the Canadian Medical Association voted against physicians’ conscience rights by a margin of 71 percent.

Conscience supporters say assisted suicide is not healthcare, and it is a doctor’s right to refuse to kill his/her patients, or refuse to prescribe lethal medication, and refuse to refer or be complicit with the act.

After Canada’s Supreme Court decriminalized euthanasia in 2015, the College of Physicians and Surgeons of Ontario promoted what they called a “compromise” which did not require doctors to lethally inject patients but it required doctors who objected to refer their patients to a death doctor.

This stripping of individual conscience rights is spreading to the United States. Proposed assisted suicide bills in Massachusetts, Minnesota, New Mexico, and Wisconsin included clauses to force objecting physicians to refer for suicide.

Belgium is following Ontario by pressuring all physicians regardless of conviction to refer for death by euthanasia.

Last year, the Ontario Court of Appeal upheld the College’s coercion, admitting that physicians’ rights were indeed “infringed” by the policy, but the infringement is reasonable in a democratic society. In an unprecedented ruling against Charter rights, the court institutionalized a “limit” on fundamental freedoms in the name of “ensuring access” to death “care.” 

Alex Schadenberg

The Euthanasia Prevention Coalition criticized the decision as no “compromise” at all. Alex Schadenberg stated that facilitating suicide makes one complicit in the act. He said:

“If it’s wrong to do the act, then it’s also wrong to send a patient to somebody else who will do the act,”

Ethicist Dr. Edmund Pelligrino explained that referring is participation. He reasoned.

“Formal cooperation is absolutely and always, forbidden. ...This is the case when the physician shares the evil intent, partakes directly and freely, or in any way facilitates an intrinsically evil act like…assisted suicide.”

Pro-assisted suicide politicians and doctors in the U.S. have begun to accuse physicians who refuse to practice assisted suicide of “abandoning patients.” Ironically, even ethicists in professional journal articles have called refusal to refer for death “a toxic form of patient abandonment.”

Alex Schadenberg disagree's, in life-or-death terms.

“People ask for euthanasia because they have lost hope. They may be in depression or experiencing distress, darkened by their reality, and feel that life has lost its purpose or value. In the past, doctors took this request to die as a cry for help, and they tried to find out what their patient needs to weather his or her overwhelming difficulty. The conscientious physician isn’t abandoning his or her patient, they’re caring for that person.”

Conscience advocates add that this is as much an issue of patients’ rights as it is of physicians’ rights.

“Physician conscience rights are important for physicians, but they are more important for protecting patients,”

Schadenberg pointed out, saying that conscience rights are central to protecting patients when they are most vulnerable. 

“I want a physician who will protect my life when I’m going through my deepest darkest times. When I’m going through that physical, psychological, emotional, or existential distress and I’m so darkened that I can’t see beyond my own difficulty, I need a physician who will say ‘no’ to me and will care for me, not kill me.”

Schadenberg concludes that denying conscience rights to physicians actually denies patients their right to live.

Conscience rights are not just for the religious; there are clear secular reasons to object to assisted suicide. First of all, suicide devalues human life.

The American College of Physicians stated in 2001.

“Both society in general and the medical profession in particular have important duties to safeguard the value of human life,” 

“This duty applies especially to the most vulnerable members of society.”

A second conviction against assisted suicide is that, with modern medicine and advances in palliative care, pain can be managed.

The Canadian Society of Palliative Care Physicians issued a statement against assisted euthanasia that emphasized palliative care’s mission is 

“to help patients live as fully as possible until their natural death. Palliative care strives to reduce suffering, not to intentionally end life... The Canadian public must be able to continue to trust that the principles of palliative care remain focused on effective symptom management and psychological, social, and spiritual interventions to help people live as well as they can until their natural death.”

Janice Strukoff of the Delta hospice spoke out against a 2018 edict by the Fraser Health Authority in British Columbia ordering healthcare facilities --including hospices-- to participate in Medical Aid in Dying (euthanasia). 

“Hospice palliative care is not about hastening death, and we object to the bullying currently taking place in B.C.”

Dr Neil Hilliard

The medical director of Fraser Health Palliative Care, Dr Neil Hilliard, resigned over the edict. He stated. 

“Providing euthanasia or physician-assisted suicide is not in accordance with palliative care, (which) ‘affirms life and regards dying as a normal process,’”

A third argument against assisted suicide is that physician-complicit killing destroys the doctor-patient trust to heal and do no harm.

“Legalizing euthanasia or physician-assisted suicide would have a profound and detrimental effect on the doctor–patient relationship,” 

The British Medical Association stated just sixteen years ago (2003). 

“It would be unacceptable to put vulnerable people in the position of feeling they had to consider precipitating the end of their lives.”

A fourth argument comes from the experience of states and countries where assisted suicide and euthanasia are legal. History proves that once euthanasia is accepted, limitations on candidates diminish and authorized applications expand.

Examples of the limits on euthanasia eroding are happening now. Since legalizing assisted suicide, the Oregon Health Authority changed the definition of “terminal illness” from its universally-understood meaning of “incurable and irreversible fatal disease” to include treatable medical conditions if a patient refuses to take his or her medicine.

Another example of expansion is the several assisted suicide bills debated in the Oregon legislature. One redefines “self-administer” so that the suicidal patient can legally be killed (commit “suicide”) by someone else. Another bill lengthens the necessary prognosis of six months to live. Another enables a pro-suicide doctor to wave the 15 day waiting period. Another widens “terminal” to include any medical condition that ultimately could “substantially contribute to a patient’s death.”

Some euthanasia activists go so far as to elevate the “right to die” to a “duty to die” for patients whose care “costs” too much for their families or for society at large.

In a speech to the Health Lawyers Association, then-Colorado Governor Richard Lamm stated in 1984 that the terminal elderly have “a duty to die and get out of the way,” because giving them health care would turn the U.S. into a “second-rate economic nation.” Time, the Washington Post, and the New York Times reported his remarks favorably.

It must be noted that this callous, purely economic reasoning is precisely the attitude that led pre-Nazi Germany to “dispose” of human “life devoid of value.” 

Dr. Leo Alexander, a Boston psychologist and the American psychiatric representative to the Nuremberg trials, explained that the foundations of genocide lie in euthanasia. Dr. Alexander wrote in the New England Journal of Medicine in 1949:

“The beginnings were at first merely a subtle shift of emphasis in the basic attitudes of physicians in the 1920s. It started with the acceptance of the attitude, basic in the euthanasia movement, that there is such a thing as a life not worthy to be lived,”

“This attitude in its early stages concerned itself merely with the severely and chronically sick, (then)...the socially unproductive, the ideologically unwanted, the racially unwanted, and finally all non-Germans. But it is important to realize the infinitely small wedged-in lever from which the entire mindset received its impetus was the attitude toward the non-rehabilitable sick.”

Summarizing reasons to oppose euthanasia, a 2012 statement from the Ethics, Professionalism and Human Rights Committee of the American College of Physicians read, 

“Making physician-assisted suicide legal raised serious ethical, clinical and social concerns and that the practice might undermine patient trust; distract from reform in end-of-life care; and be used in vulnerable patients, including those who are poor, are disabled, or are unable to speak for themselves or minority groups who have experienced discrimination.”

These reasons show that physicians’ right to refuse to prescribe death is not necessarily based on faith, but grounded in foundational understandings about humanity and healthcare.

David Anderson MP

Physicians leaving medicine is just what is happening in Canada. MP David Anderson testified. 

“I have spoken to doctors who feel overt pressure to leave family medicine because of their conscientious beliefs,”

“I have heard of palliative care doctors in Ontario who have stopped practicing altogether. Nurses who feel increasingly bullied are choosing to shift their focus or retire early. I have had personal conversations with people who work in old folks’ homes who explain they do not want to participate in this but are increasingly feeling pressured to do so.”

The effect of Canada’s euthanasia law is to force euthanasia objectors out of their chosen practice, or out of healthcare altogether. In May of this year, the Court of Appeal for Ontario brazenly exposed that effect as intended, actually advising conscientious medical workers to find a job where assisting suicide would not be required.

Anderson lashed out against the court’s insulting advice, calling it 

“incredibly demeaning to those men and women who have gone through years of training.”

“They are being punished for holding that level of dignity, respect and honor for their patients.”

Anderson continued:

“We have such a shortage of physicians and medical services,” 

“Particularly in rural areas, there is an increasing lack of physicians in an increasingly challenged medical system... The answer does not have to be to do it, find someone else to do it or get out of medicine.”

Fortunately, a flickering spark of common sense has been ignited in various places, and we must fan that into a flame.

The U.S. State Department report on international freedoms singled out a growing trend of prospective healthcare professionals whose potential is destroyed by a lack of conscience rights. 

“Medical and nursing students...expressed their reluctance to enter the health care field as a whole, and particularly specialties...where their objections to…euthanasia might not be respected.”

The Trump administration has officially noted Canada’s trashing of doctors’ conscience rights. Last year, U.S. Secretary of State Mike Pompeo released a report pointing out that Canada’s “regulations requiring doctors to refer patients seeking assisted death...constituted facilitation and violated constitutional guarantees of freedom of conscience and religion.”

Earlier this year, the Trump Department of Health and Human Services (HHS) reversed Obama rules and mandated conscience protections 

“for physicians, pharmacists, nurses, teachers, students, and faith-based charities,” exempting them from “having to provide, participate in, pay for, provide coverage of, or refer for, services such as...assisted suicide.”

HHS regulations now protect healthcare entities that object to 

“assisted suicide, euthanasia, or mercy killing” from “being required to perform, participate in, pay for, provide coverage for, counsel or refer for...euthanasia.”

Freedom of conscience “is the bedrock of American life,” President Donald Trump proclaimed.

The new HHS rules specifically include as unlawful discrimination:

“being steered away from a career in obstetrics, family medicine, or geriatric medicine, when one has a religious or moral objection to...physician-assisted suicide or euthanasia.”

Roger Severino, director of HHS’s Office for Civil Rights, elaborated, 

“This rule ensures that healthcare entities and professionals won’t be bullied out of the healthcare field because they decline to participate in actions that violate their conscience, including the taking of human life.”

Besides the current U.S. administration, there are other glimmers of hope. Last year the Norwegian Supreme Court handed down a landmark conscience rights ruling supporting a Polish physician who was fired for following her conscience not to kill.

In Canada, the province of Manitoba passed conscience rights legislation in 2017 allowing doctors to opt out of killing. MP David Anderson told Parliament.

“The example of the province of Manitoba...shows there does not need to be compulsion in the medical system when it comes to this issue,” 

“Why would one try to force people into doing what they believe to be wrong?”

David Anderson’s bill (C-418) has enabled debate in the Canadian Parliament. He told Parliament Bill C-418 would:

“provides the teeth” that the current law lacks. “make it an offence to intimidate” a healthcare worker “to take part, directly or indirectly, in the provision of physician-assisted suicide.” It would also stop hospitals and employers from firing healthcare workers who opt out of assisting in a patient’s suicide.

It is said, “Where the battle rages, loyalty is proved.” The fight for conscience rights is immediate and intense, and the outcome is in question not only for Canada, but the U.S. and the rest of the civilized world.