Indiana assisted suicide bill fails to protect objecting practitioners

This article was published by the Protection of Conscience Project on January 16, 2020

Assisted suicide evolves from "assistance" to "medical care" 

Affirmation has serious consequences for objecting Indiana physicians

By Sean Murphy

Introduction

On 7 January, 2020, Representative Matt Pierce introduced HB1020: End of life options in the Indiana General Assembly.1 HB1020 is the fourth assisted suicide bill introduced by Pierce since 2017; three previous bills died in committee without hearings.2,3,4,5,6 Parts of HB1020 relevant to protection of conscience are reproduced on the Project website.7
 
Overview

The bill permits physician assisted suicide for Indiana residents 18 years of age and older who have been diagnosed with a terminal illness likely to cause death within six months. Candidates must be competent to make health care decisions and must apply in writing for a lethal prescription; the application must be witnessed by two independent witnesses. Lethal medication can be prescribed or dispensed by an attending physician after a fifteen day waiting period if the patient is acting voluntarily and making an informed decision.

Neither the attending physician nor any other person need be present when the lethal medication is taken, though the attending physician must tell the patient that someone else should be present. The lethal medication must be self-administered. If the medication does not cause death, no one is authorized to kill the patient. 

HB1020 imposes obligations upon "attending physicians"8 and "consulting physicians"9 and it assumes the cooperation of pharmacists in dispensing lethal medication. There is some ambiguity in the description of what is expected of attending physicians. Section 4(a)(13) makes provision or prescription of lethal medication an absolute obligation if all of the conditions specified in the bill are met (". . .the attending physician shall. . ."). On the other hand, Section 4(c) seems to leave some discretion to the attending physician to refuse, even if the conditions are met (". . . the attending physician may . . ."). A later protective provision indicates that an attending physician can refuse, but the ambiguity in the wording of Section 4 remains.

Protective provisions: biased, insufficient and conflicting

The bill makes no reference to freedom of conscience or religion, but Section 12 offers some protection for "health care providers."

Under Section 12(d) a hospital (health care provider) can prohibit physicians (individual health care providers) from participating in assisted suicide on its premises, and, provided it has notified them in advance, can take action against those who defy the prohibition. This would seem to be broad enough to include a prohibition against assessing patients and arranging for assisted suicide elsewhere.

However, Section 12(e) pits health care "facilities" against health care "providers." A facility cannot prevent a physician from "providing services consistent with the applicable standard of medical care." This includes at least providing information about assisted suicide, being present at a suicide, and referring a patient for assisted suicide. What is not clear is whether or not this includes doing so on the facility's premises, notwithstanding a facility prohibition of participation in assisted suicide.

Unfortunately, HB1020 does not explain the distinction between a health care "provider" and a health care "facility." And while the Indiana Code defines both terms, it offers three different definitions of "health care facility"10 and five differing and very lengthy definitions of "health care provider."11 The latter can include individuals (thus covering attending physicians) but also health facilities and incorporated entities. This further complicates interpretation of Section 12(e).

Section 12(a) provides immunity against professional, criminal and civil liability, but only for those who prescribe or dispense assisted suicide medication or are present when it is taken. Those who refuse are unprotected. The bias in favour of assisted suicide practitioners and disadvantage imposed upon those unwilling to provide the service is obvious.

Section 12(b) protects both health care providers who participate and those who refuse to participate in assisted suicide against private disciplinary or punitive actions by professional associations, organizations and other health care providers. It offers the same protection for health care providers who provide "scientific and accurate information" about the service - but not those who refuse to do so.

Section 12(c) states that a health care provider cannot be required to participate in "the dispensing or providing of medication", but this does not clearly protect objecting physicians from demands that they do everything but dispense or prescribe lethal drugs.
Assisted suicide evolves from "assistance" to "medical care"

In 2017, HB1561 Section 12(a) described participation in assisted suicide as "provid[ing] assistance in the completion of a request for medication." It granted professional, civil and criminal immunity to those providing "assistance."

The following year, HB1157 Section 12(a) used the same phrase to describe participation. It conferred immunity upon those providing such "care."

In 2019, HB1184 Section 12(a) evolved further, so that participation in assisted suicide is described in HB1020 as the provision of "medical care," including prescribing or dispensing lethal medication and being present at a patient's suicide. The addition of Section 12(e) in HB1020 reflects and reinforces this evolution when it refers to participation in assisted suicide that conforms to "the applicable standard of medical care."

Now, in 2019 the American Medical Association (AMA) reaffirmed its rejection euthanasia and assisted suicide as contrary to medical ethics,12 so the AMA would presumable reject the bill's supposition that there can be a "medical standard of care" for either procedure. In this respect, the author of HB1020 may be looking to a future in which a medical standard of care is developed as a result of the legalization of physician assisted suicide.

When assisted suicide becomes "medical care"  

Seven Canadian physicians have described what that future looks like.

"For refusing to collaborate in killing our patients," they write, "many of us now risk discipline and expulsion from the medical profession," are accused of human rights violations and "even called bigots."13

How did this come about?

An important part of the explanation is the Canadian Medical Association's (CMA) classification of assisted suicide and euthanasia as "therapeutic service[s]"14 and "legally permissible medical service[s]."15

Since there is no dispute that physicians have a professional obligation to provide or arrange for therapeutic medical services for their patients, the change in CMA policy implicitly made participation normative for the medical profession (and, by extension, for other health care workers and institutions). From that perspective, as the Canadian physicians note, refusing to provide or arrange for euthanasia and assisted suicide services for legally eligible patients "became an exception requiring justification or excuse." Hence, discussion in Canada is now largely about "whether or under what circumstances physicians and institutions should be allowed to refuse to provide or collaborate in homicide and suicide."13

The seven Canadian physicians authors can't be dismissed as outlying cranks. Almost 60 Canadian physicians from across the country endorsed the article, which appeared in the World Medical Association's professional journal. Signatories included a Canadian Medical Hall of Fame member known as the father of palliative care in North America,16,17 a member of an expert advisory group on euthanasia and assisted suicide convened by Canadian provinces and territories,18 and a regional director of palliative care who resigned when a health authority demanded that objecting hospices permit euthanasia and assisted suicide on their premises.19

Thus, in the long term, statutory affirmation that assisted suicide is not only permitted but is a form of "medical care" would likely have serious adverse consequences for objecting Indiana physicians.

Notes

1. US, HB 1020, End of life options, 121st Gen Assembly, 2nd Reg Sess, Ind, 2020 [Internet]. Indianapolis: Indiana General Assembly; 2020 Jan 7 [cited 2020 Jan 14].

2. US, HB 1561, End of life options, 120th Gen Assembly, 1st Reg Sess, Ind, 2017 [Internet]. Indianapolis: Indiana General Assembly; 2017 Jan 23 [cited 2020 Jan 14].

3. US, HB 1157, End of life options, 120th Gen Assembly, 2nd Reg Sess, Ind, 2018 [Internet]. Indianapolis: Indiana General Assembly; 2018 Jul 1 [cited 2020 Jan 14].

4. US, HB 1184, End of life options, 121st Gen Assembly, 1st Reg Sess, Ind, 2019 [Internet]. Indianapolis: Indiana General Assembly; 2019 Jul 1 [cited 2020 Jan 14].

5. Hussein F. Indiana lawmaker proposes assisted suicide bill. Indianapolis Star [Internet]. 2018 Jan 4 [cited 2020 Jan 14].

6. Arthur V. Assisted suicide legislation stalls in Indiana. Today's Catholic (Fort Wayne, IN) [Internet]. 2019 Apr 4 [cited 2020 Jan 14].

7. Indiana: House Bill 1020 (2020): End of life options [Internet]. Powell River (BC): Protection of Conscience Project; 2020 Jan 14 [cited 2020 Jan 14].

8. "'Attending physician' means the licensed physician who has the primary responsibility for the treatment and care of the patient. For purposes of IC 16-36-5, the term includes a physician licensed in another state." IN Code § 16-18-2-29 (2018) [Internet]. Mountainview, CA: Justia [cited 2020 Jan 14].

9. The term is undefined, so it appears to refer to any licensed physician.

10. For "health care facility" see IN Code § 16-18-2-161 (2018) [Internet]. Mountainview, CA: Justia [cited 2020 Jan 14].

11. For "health care provider" see IN Code § 16-18-2-163 (2018) [Internet]. Mountainview, CA: Justia [cited 2020 Jan 14]

12. Frellick M. AMA Reaffirms Stance Against Physician-Aided Death. Medscape [Internet]. 2019 Jun 11 [cited 2020 Jan 14].

13. Leiva R, Cottle MM, Ferrier C, Harding SR, Lau T, Scott JF. Euthanasia in Canada: A Cautionary Tale. WMJ 2018 Sep [cited 2020 Jan 14]; 64:3 17-23.

14. Doctor-assisted suicide a therapeutic service, says Canadian Medical Association [Internet]. CBC News; 2015 Feb 06 [cited 2020 Jan 14]. Emphasis added.

15. CMA Policy: Medical Assistance in Dying [Internet]. Canadian Medical Association; 2017 May [cited 2020 Jan 14]. Emphasis added.

16. (Dr. Balfour Mount). Phillips D. Balfour Mount [Internet]. Montreal (Quebec): McGill University; 2016 May 03 [cited 2020 Jan 14].

17. The Canadian Medical Hall of Fame. Dr. Balfour Mount, 2018 Inductee [Internet]. [cited 2020 Jan 14].

18. (Dr. Nuala Kenny). Provincial-Territorial Expert Advisory Group on Physician-Assisted Dying. Final Report [Internet]. Toronto (Ont): Government of Ontario, Ministry of Health and Long Term Care; 2015 Nov 30 [cited 2020 Jan 14].

19. (Dr. Dr. Neil Hilliard). Fayerman P. Delta hospice rebels against Fraser Health's mandate to provide medical assistance in dying [Internet]. Vancouver Sun; 2018 Feb 06 [2020 Jan 14].

Quebec euthanasia deaths increase by 75%

Alex Schadenberg
Executive Director - Euthanasia Prevention Coalition

Caroline Touzin reported for Le Press that the recent Quebec government euthanasia report indicates that the number of euthanasia deaths are increasing quickly.

Quebec legalized euthanasia in December 2015, while the rest of Canada legalized euthanasia in June 2016.

According to Touzin the recent government report stated that there were 1664 reported euthanasia deaths between December, 2015 and March 31, 2018. 

It is concerning that 1493 reports were received and yet 1664 euthanasia deaths were reported by institutions. Therefore 171 euthanasia deaths were not reported representing more than 10% of the deaths.

A report compiled by the Sean Murphy for the Protection of Conscience Project indicated that there were 454 reported Quebec euthanasia deaths in 2016 and 757 in 2017. He stated that in 2017 1.2% of all deaths were by euthanasia (lethal injection) representing a 67% increase from the number of euthanasia deaths in 2016.

According to an article by Michael Cook for Bioedge there were 845 reported euthanasia deaths for the 9 months from July 2017 to March 2018, compared to 638 for the 12 months from July 2016 to June 2017 representing a 75% increase.

Cook also reported that the recent government euthanasia report states that doctors are often not following the law. According to Cook:

The latest report indicates that 10% of the reported euthanasia deaths were not administered according to the letter of the law. Either the paperwork was incomplete or the law had apparently been broken. The corresponding figure for the previous period was 8%. The report stresses, however, that the “great majority” of the euthanasia deaths were administered according to the law.

Abuse of the law is not new. Last year, Amy Hasbrouck, the EPC President and a Quebec disability rights leader, examined the Quebec government report and reported that:

• Confusion and inconsistency exists between euthanasia figures offered by the various sources; the “number of forms received and examined“ by the commission, the reports of the institutions, and the reports from the Collège des médecins du Québec.
• A 5% or 7% error rate (with 3% undetermined) would not be acceptable where lives depended on the effective application of safeguards (e.g. the airline industry).  
• The three cases in which the safeguards were clearly violated (two where the person did not have a “serious and incurable illness” and one where the person was not at the “end of life”) were not addressed as the crimes that they are.

Similar problems exist in the Netherlands, where a study found that in 2015, 23% of the assisted deaths were not reported and 431 assisted deaths were done without explicit consent.

The Quebec government does report more information than Canada's federal government about the euthanasia practice.

• Euthanasia increases by 30% in Canada.

The World Medical Association should not follow the lead of the Canadian Medical Association concerning euthanasia

This article was published by Mercatornet with the title: Who will protect Canadian doctors if they are forced to refer for euthanasia, on September 29, 2018

By Sean Murphy, the administrator of the Protection of Conscience Project.

In December, 2013, the Canadian Medical Association (CMA) Board of Directors decided to shape the debate and law concerning euthanasia and assisted suicide and revisit CMA policy opposing physician participation in the procedures. By the summer of 2014 it was clear that the overwhelming majority of physicians supported the existing policy. However, it appears that the Board decided the policy should be changed before the Supreme Court of Canada decided the case of Carter v. Canada.

The Board sponsored an ostensibly neutral resolution affirming support for the right of physicians to follow their conscience in deciding whether or not to provide euthanasia/assisted suicide if the law changed. The resolution was overwhelmingly approved. Unnoticed at the time was that the resolution was not conditional upon eligibility criteria, such as decision-making capacity or terminal illness.

The CMA intervention at the Supreme Court of Canada in the Carter case emphasized that existing CMA policy against euthanasia and assisted suicide would be changed to reflect the resolution. It conveyed the message that the Association would support physicians who decided to participate in euthanasia or assisted suicide no matter how broadly the Court or legislatures might cast the rules governing the procedures.

The Board reversed CMA policy about two months before the Court ruled. It formally approved physician assisted suicide and euthanasia, subject only to legal constraints. The policy did not exclude minors, the incompetent or the mentally ill, nor did it limit euthanasia and assisted suicide to the terminally ill or those with uncontrollable pain. It classified both as "end of life care," promising support for patient access to the procedures should they be legalized. Support for physicians refusing to participate in euthanasia or assisted suicide was qualified by the statement that there should be no "undue delay" in providing them. Implicit in all of this was a new ethical paradigm: that in some circumstances, physicians have a professional obligation to kill patients or to help them kill themselves.

The new policy effectively wrote a blank cheque for the Supreme Court of Canada to legalize euthanasia and physician assisted suicide on any terms acceptable to the judges. After the Court struck down the law CMA officials expressed concern about the criteria set by the Court. It was implied that the Supreme Court was to blame for anxiety and profound discomfort among Canadian physicians because it had imposed upon them an obligation to kill, contrary to centuries of medical ethics and practice.

However, the concerns voiced by CMA officials after the Carter ruling existed when the CMA intervened in the case, and the CMA did not raise them then. In fact, the Supreme Court gave legal effect to a policy the CMA had already adopted, and the criteria the Court set for the procedures were actually more restrictive than anything the CMA had proposed. The Court cannot be blamed because CMA leaders were ill-prepared to deal with the consequences of a ruling entirely consistent with their own policy.

The consequences fell most heavily upon physicians who refused, for reasons of conscience, to provide euthanasia and assisted suicide or to collaborate in providing the services by referral or other means. Since Carter, the debate in Canada has been largely about whether or under what circumstances physicians and institutions should be allowed to refuse to provide or facilitate the services. While it is generally agreed that physicians should not be compelled to personally provide them, there are strident demands that physicians unwilling to kill their patients or help them commit suicide should be forced to refer patients to someone who will.

This review demonstrates that the CMA Board of Directors focus in 2014 was on the role physicians would play in providing euthanasia and assisted suicide should the law change. The Board knew that the overwhelming majority of Canadian physicians would refuse to participate in euthanasia or assisted suicide. The fundamental conflict presented by imposing an obligation to kill upon unwilling physicians was foreseeable and had been foreseen by CMA officials. Attacks upon physician freedom of conscience, particularly with respect to referral, were predictable.

However, the Board failed to consider physician freedom of conscience in relation to assisted suicide and euthanasia except the extent that it could be used to further its policy goals. As a result, after the Carter ruling, CMA officials were quite unprepared to mount a cogent, articulate and persuasive defence of physician freedom of conscience, especially in relation to referral. They discovered that state authorities and the public were often unreceptive and even hostile to physicians unwilling to arrange for patients to be killed by someone else. Negotiating at a significant disadvantage of their own making, they were desperate to find a policy "acceptable to the regulators" and to objecting physicians whose fundamental freedoms they had rashly jeopardized.

The CMA has since produced a strong defence of physician freedom of conscience in relation to referral for euthanasia and assisted suicide, and sound protection of conscience provisions have been incorporated into a revised CMA policy on the procedures. However, by the time these statements appeared, objecting physicians were on the defensive in a treacherous and even hostile environment, compelled to launch an expensive constitutional challenge to defend fundamental freedoms of conscience and religion. The outcome of that case will determine if they will be able to continue to practise medicine if they refuse to collaborate in killing their patients.

The World Medical Association (WMA) national medical associations are free to decide to change their policies on physician participation in euthanasia or assisted suicide. This review demonstrates that they should not follow the example of the Canadian Medical Association if they wish to safeguard the fundamental freedoms of physicians and health care workers.

Québec euthanasia deaths increase by 67% in 2017.

Alex Schadenberg
Executive Director, Euthanasia Prevention.

A report compiled by Sean Murphy, administrator for the Protection of Conscience Project, indicates that the number of euthanasia deaths (MAiD) increased by 67% in 2017 in Québec.

Murphy published the euthanasia data from Dec 10, 2015 to Dec 10, 2017, comparing the data from the 2016 to the 2017 deaths.

Murphy's indicates that there were 454 reported euthanasia deaths in 2016 and 757 reported euthanasia deaths in 2017 in Québec. Thus in 2017 1.2% of all deaths were by euthanasia (lethal injection).

Murphy's data summary is very important because the law required that the agencies responsible for euthanasia in Québec were required to report, twice yearly, for the first two years and at that point the reporting requirement would end.

Amy Hasbrouck, the Euthanasia Prevention Coalition President and founder of the disability rights group Toujours Vivant - Not Dead Yet, analysed the (October 2017) euthanasia report and found significant problems with the reporting of euthanasia in Québec. Hasbrouck indicated the following concerns:

• 37% of forms/reports from doctors, and an unnamed percentage of reports from institutions, needed more information. Some doctors openly refused to provide the additional information requested by the Commission.
• The three cases in which the safeguards were clearly violated (two where the person did not have a “serious and incurable illness” and one where the person was not at the “end of life”)were not addressed as the crimes that they are.
• The commission could not decide compliance in 19 cases (3%).
• 5% of the cases did not respect the law
• A 5% or 7% error rate (with 3% undetermined) would not be acceptable where lives depended on the effective application of safeguards (e.g. the airline industry).

The greatest concern is the fact that Québec legalized euthanasia by defining it as a form of medical treatment. Lethal injection is not a form of medical treatment and it is not palliative care. Euthanasia is the abandonment of a person at the greatest time of need.