Complicity, Autonomy, and Conscience: Charter Implications of the ‘Duty to Refer’ for Physician-Assisted Suicide
(2018) 85 Supreme Court Law Review (2nd Series)
Posted: 27 Jun 2018 Last revised: 24 Oct 2018
Date Written: May 23, 2018
Physician assisted dying, or “medical assistance in dying”, as it is now known, was decriminalized in certain circumstances as a result of the Supreme Court of Canada’s 2015 decision in Carter v. Canada (Attorney General) and has been implemented through Bill C-14 in 2016. But does permitting what was once a criminal activity now mean that all health care professionals must participate?
In Carter, the Supreme Court affirmed that nothing in its ruling would compel physicians to participate in assisted dying. Bill C-14’s preamble similarly affirmed that nothing in the legislation would affect the constitutional guarantee of freedom of conscience and religion. And yet Ontario now requires its physicians to participate – more so than any other jurisdiction where assisted suicide is permitted. Through two policies (Medical Assistance in Dying and Professional Obligations and Human Rights), the College of Physicians and Surgeons of Ontario (CPSO) mandates all physicians to provide “effective referrals” for patients seeking euthanasia/assisted suicide even when their conscience dictates otherwise. These policies were recently upheld by Ontario’s Divisional Court.
This article examines the Ontario regime and considers whether its requirements violate the Canadian Charter of Rights and Freedoms. Part I surveys the legal background and historical context of the CPSO Policies, including a discussion of the Supreme Court’s analysis of physicians’ rights in Carter and Parliament’s legislative response through Bill C-14. Part II describes the CPSO Policies and the practical implications of their requirements. Part III considers the impact of the Policies on the Charter rights of conscientiously-objecting health care professionals. Part IV examines the CPSO’s invocation of the “public interest” to justify the Policies’ requirements and discusses several considerations necessary to developing a proper understanding of the CPSO’s statutory objectives. It also addresses whether Carter created a Charter right to assisted suicide/euthanasia and whether a “conflict of rights” exists in the patient-physician relationship in this context.
The article concludes that even if Carter could be interpreted as creating a positive right to assisted dying, there is no evidence that conscientious objections will create a serious barrier to patient access. Absent such empirical evidence, the risk that accommodating physicians’ human rights (as other Canadian and international jurisdictions have done) will violate patients’ rights is illusory. The injury to health care professionals’ Charter rights, and corresponding harm to the public good, is real and significant.
Keywords: medical assistance in dying, Carter, effective referral, freedom of conscience, health care, freedom of religion, religious equality
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