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Physicians’ conscience rights should not have a veto over assisted death

By Deborah Gyapong
Canadian Catholic News

03/02/2016

OTTAWA (CCN) — Physicians’ conscience rights should not be able to veto or trump a patient’s “right” to a medically assisted death, says Jocelyn Downie.

“They have an obligation to ensure access,” the Dalhousie University professor on the faculties of law and medicine told MPs, civil servants, and staffers at a packed Parliamentary Restaurant Feb. 23.

Conscience rights have to be balanced with patients’ rights, Downie said, referring to the “tragic history” of “lack of access” for a medically necessary procedure which is abortion.One of the foremost proponents of physician-assisted death in Canada, Downie was responding to a question from Cardus think-tank co-founder Ray Pennings who asked why she says assisted death should be part of a continuum of medical care. He suggested a separate regime for assisted death, so health care professionals would not have to be involved.

Pennings warned of the “broader social effect” of imposing assisted death on the health care system, because those with conscientious objections will “start leaving the medical system.”

Downie rejected Penning’s assertion having physician-assisted death as part of medical care would lead to a lack of trust in physicians. “The level of trust in the Netherlands is very strong,” she said.

In her presentation, Downie outlined the societal transformation facing Canada as it moves from being a society that has prohibited euthanasia and assisted suicide to one that may have one of the most permissive regimes in the world.

The debate is no longer of whether to allow assisted death, she said. “That ship has sailed.”

Thinking must shift to how Canada does it, and she called for collaboration across party lines, and across federal and provincial jurisdictional lines. Finding this collaboration is the first challenge, she said.

The debate “should not be cast as assisted death or palliative care,” she said, noting palliative care can be better in permissive jurisdictions than in non-permissive ones. Pennings also pointed out only about 40 per cent of Canadians have access to good palliative care, despite two decades of work on building the political will to change that. He raised concerns whether putting money into an assisted-death regime and training all personnel to participate is a wise use of resources, when palliative care is not readily available.

Downie said good palliative care is necessary, but the field is undergoing a transformation as those early palliative care physicians “who were heavily influenced by religion,” give way to younger physicians who are not. More and more people who work in palliative care are coming to support assisted death as part of palliative care, she said, probably because “they no longer feel it is unsafe to do so.”

The assisted-death advocate outlined some of the contentious issues she hopes will be reflected upon, debated in an effort toward consensus-building.

Among them: assisted death for competent minors; advanced directives for assisted death made after a diagnosis while competent that would be carried out after the patient is no longer competent; whether the review of an assisted-death request should occur before the death or after; and whether mental illness should be included among the grievous and irremediable conditions outlined by the Supreme Court in the Carter decision.

Downie said excluding minors and the mentally ill would not likely pass a Charter challenge on equality grounds. She also said there needs to be debate over whether only physicians will carry out assisted death, or whether other health professionals may do so under a doctor’s supervision.

Canada has the opportunity to “develop the best regulatory framework” in the world for assisted death, she said. She cited polls over the years showing 70 to 80 per cent of Canadians support it. She also expressed her hope Canada could develop the best system in the world for end-of-life care.

She urged Canadians to carefully assess the evidence, staying away from what she called anecdotal evidence of abuses in permissive regimes.

One questioner raised the spectre of Dr. Kevorkian, famous for his suicide machine that he used to illegally help many people to kill themselves. He said if the assessment of the suffering is subjective, what is to stop people from having assisted death on demand.

“This is not a free-for-all,” Downie insisted. The process will be “constrained by criteria,” such as grievous and irremediable. It is an “open question” how much determining what is grievous and irremediable will be an objective process, involving physicians, she said. Suffering, however, is subjective. “There will be an element of reasonableness,” she said.

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