Conditions for the Permissibility of Conscientious Objection to Medical Assistance in Dying in Canada: An Ethical Analysis Using Deontology, Principlism, and Utilitarianism
Photo by Marcelo Leal on Unsplash
Photo par Marcelo Leal sur Unsplash
Min Xi
(FR) Le projet de la loi C-14 a été adopté le 17 juin 2016, légalisant l’aide médicale à mourir au Canada. Il existe cependant dans le projet de loi une clause d’objection de conscience permettant aux médecins de refuser de fournir aux patients cette aide médicale à mourir sur la base de leurs valeurs personnelle, par exemple leurs croyances religieuses. Ce droit à l’objection de conscience fait l’objet d’un débat permanent au sein de la communauté médicale. Je soutiens que l’objection de conscience devrait être autorisée lorsque les conditions suivantes sont remplies : (1) la raison de l’objection du médecin est précisée (2) il y a un autre médecin à proximité en mesure de pratiquer l’aide médicale à mourir, et (3) il y a un échange équivalent de charge de travail entre les deux médecins. Afin de justifier ces conditions pour l’objection de conscience, trois principes éthiques — dont la déontologie, le principalisme et l’utilitarisme — serviront à analyser les questions de la responsabilité professionnelle des médecins et de l’égalité d’accès aux services de santé pour tous les patients dans l’offre du service de l’aide médicale à mourir. Ces clauses ne constituent nullement une liste exhaustive de conditions concernant l’admissibilité de l’objection de conscience à l’aide médicale à mourir, mais elles constituent un début d’approche plus utilitaire, comme le souhaitent les lois canadiennes. À l’avenir, d’autres théories éthiques telles que l’éthique de la vertu peuvent être utilisées pour analyser ce cas, afin de présenter d’autres problèmes avec les lois actuelles de l’aide médicale à mourir et éventuellement d’autres conditions à la viabilité de l’objection de conscience.
Bill C-14 was passed on June 17, 2016, and it legalized medical assistance in dying (MAiD) in Canada.[i]Notably, the bill’s conscientious objection clause allowed physicians to refuse to provide MAiD for patients based on personal morals such as religious beliefs.[ii] However, in the case of conscientious objection, physicians are required to refer patients to another doctor who is willing to provide the service.[iii] The ethics behind a physician’s right to conscientious objection has been an ongoing debate in the medical community. Shortly after Bill C-14 was passed, Udo Schuklenk released several prominent papers stating his strong objection to a physician’s right to conscientious objection, citing the professional responsibility of a physician towards their patient and equal service accessibility for all patients as the main reasons for his objection.[iv],[v],[vi] In contrast, I argue that conscientious objection should be permitted when the following conditions are met: (1) the reason for the physician’s objection is specified, (2) there is a physician willing to perform MAiD nearby, and (3) there is an equivalent exchange of workload between the two physicians. To justify these conditions for conscientious objection, three ethical principles including deontology, principlism, and utilitarianism will be used to analyze the issues of the professional responsibility of physicians and the equal accessibility of healthcare services for all patients in the offering of MAiD services.
One of Schuklenk’s main arguments was that physicians should place professional ethics before their own personal ethics.[vii],[viii] According to Schuklenk, individuals who chose the medical profession should be expected to perform all duties required of the profession. As such, physicians should not be able to refuse to perform MAiD for patients who meet the lawful requirements of the service.[ix] By his prioritizing of the patient’s wishes and the physician’s voluntary choice of the medical profession, it can be observed that Schuklenk emphasizes respect towards a person and their individual choices, placing great importance on the autonomy of both parties involved in the issue of conscientious objection towards MAiD. However, deontologists may not all share the same reasoning as Schuklenk to justify why physicians should not be able to conscientiously object to MAiD. Deontology focuses on the rightness or wrongness of a particular action and a key deontological principle is that the action of killing is morally wrong. This deontological principle is further reinforced in Sections 2 and 7 of the Canadian Charter of Rights and Freedoms.[x]Through MAiD, a physician is directly “killing” the patient so individuals taking a deontological perspective of the situation may claim that MAiD should not be offered because “killing” is intrinsically wrong. Furthering the argument of these deontologists, it can be argued that conscientious objection should never be a choice for physicians because physicians should not be allowed to carry out MAiD due to its intrinsic moral wrongness.
On the other hand, propellants of principlism may not agree with a deontologist’s definition of a physician’s professional responsibilities. Previously, Schuklenk mainly considered autonomy, but principlists must also take beneficence, non-maleficence, and justice into account. Although principlism encompasses principles such as beneficence and non-maleficence, signifying that a physician should try to act in a way that benefits the patient and avoid harming the patient, the concepts of beneficence and non-maleficence can be understood and applied to a physician’s professional responsibility in different ways. In recent years, a growing number of bioethicists have suggested that a physician’s responsibility should be regarded as the alleviation of a patient’s suffering rather than curing or improving the health of an individual.[xi] According to the legal requirements for MAiD, the patient must be experiencing extreme pain/suffering and have a foreseeable death.[xii] So, by alleviating the pain and suffering of a patient through MAiD, it can be said that the physician is acting both beneficently and non-maleficently while respecting the patient’s autonomy in choosing how to end their life. Here, principlist ethics can be applied differently depending on an individual’s understanding of the professional responsibility of a physician, leading to contrary views of whether physician conscientious objection to MAiD should be permitted. In addition to patient autonomy, a principlist would also need to consider physician autonomy because both parties are human and have equal rights to make their own life choices under the concept of justice. In opposition to Schuklenk, several bioethicists have noted that physicians do not automatically agree to all the laws and additional responsibilities of physicians after they chose the profession.[xiii],[xiv],[xv] That is to say, laws change, often depending on societal values at a particular point in time, but an individual’s personal morals may not change with the law. For example, the Supreme Court of Canada ruled against MAiD in the Rodriguez v British Columbia case in 1993, but became permissible after the Carter v Canada case in 2015 with the judges of both cases citing moral and ethical reasons for their decisions.[xvi],[xvii] Here, it can be observed that, contrary to a deontologist, a principlist may allow a physician to perform MAiD, depending on their perspective regarding a physician’s professional responsibilities. A principlist may also allow a physician to conscientiously object to MAiD after considering the weight of patient autonomy against that of physician autonomy. Hence, there is a conflict between deontological and principlist ethics as well as within the application of the principles of beneficence and non-maleficence regarding the professional responsibilities of a physician, thus creating further conflict surrounding the allowance of physician refusal to perform MAiD due to conscientious objection. Given that ethical theories are inherently based on “good” morals, the conflicts between and within ethical theories suggest that the allowance of conscientious objection may not be concrete. As such, it may be permissible in certain situations. The remainder of this essay will contemplate the conditions under which conscientious objection should be permissible.
In addition to autonomy, beneficence, and non-maleficence, a principlist needs to consider the situation from a justice perspective as well. Currently, the implementation protocol behind conscientious objection varies depending on institution and province. Some institutions require physicians to submit a valid reason for their conscientious objection while others do not.[xviii] To maintain justice and ensure that all patients are treated fairly by each physician, a consistent system should be employed for paperwork pertaining to conscientious objections to MAiD. Additionally, physician discrimination against patients is a growing problem in Canada, with an increasing number of patient complaints each year.[xix],[xx] Hence, I would recommend that all physicians be required to submit their reason for conscientiously objecting to providing MAiD for a patient in order to prevent the refusal to provide a particular service due to discrimination against certain groups of patients instead of actual moral objection to MAiD as specified in the law.
Contrary to deontology and principlism which both emphasize a physician’s professional responsibilities to the patient and the conflict between a physician’s professional and personal moral obligations, utilitarianism may opt to search for a solution that attempts to appease both physician and patient autonomy. The current C-14 bill in Canada tries to act in a utilitarian way by allowing physicians to fulfill their personal moral obligations through conscientious objections and respecting patient autonomy and a physician’s professional responsibilities by mandating that physicians who conscientiously object to MAiD must provide an effective referral for patients to be able to obtain the service from another physician.[xxi] Several criticisms have been raised against the effective referral clause of the C-14 bill. Although the clause attempts a utilitarian approach, some bioethicists claim that patient autonomy is not being fully respected due to lack of access to MAiD.[xxii],[xxiii],[xxiv],[xxv] Effective referral is defined in Bill C-14 as “a referral that is made in good faith with a view to supporting, not frustrating or impeding, access to care”, but this is not possible in all cases.[xxvi] For example, in rural or Catholic-based healthcare systems such as those in Prince Edward Island and Alberta, respectively, physicians offering MAiD may be simply unavailable, despite statistics showing that around 30% of Canadian physicians are willing to offer the service.[xxvii] Furthermore, patients in the intensive care unit are often near the end of their lives and most in need of MAiD services.[xxviii] However, in the case where a MAiD-providing physician is not available in the distinct region of the intensive care unit, these patients are often not mobile enough to be transported to another facility with MAiD services.[xxix] Lack of physicians offering MAiD in some regions of Canada in addition to the limited mobility of patients requesting MAiD may contribute, at least in part, to the 14% of patients requesting MAiD who die before the procedure can be carried out.[xxx] This statistic demonstrates that MAiD is not equally accessible to patients across Canada, impeding patient autonomy and justice in accordance with principlism. Although a physician has an obligation to improve the health or alleviate the pain of the patient, it is ultimately the government’s responsibility to ensure that all of its citizens have equal access to healthcare services, as stated in the Canadian Charter.[xxxi] As such, I propose that it is the government’s responsibility to ensure the even, population-based distribution of physicians offering MAiD across the country, perhaps by rotating physicians willing to perform MAiD to regions of the country where access to MAiD is difficult or by taking willingness to offer MAiD into account when physicians are applying for medical schools, residency, or jobs across the country.
Another argument against the effective referral clause is the inequivalent workload suffered by physicians who opt to provide MAiD services due to the number of referred patients they receive from physicians who do not offer the procedure.[xxxii] From a utilitarian perspective, this may be beneficial to the 70% of Canadian physicians who do not wish to offer MAiD.[xxxiii] However, from a deontological perspective, physicians who refer patients seeking MAiD to other physicians who offer the service can be viewed as assisting in the patient’s death, albeit indirectly, which is morally wrong. Thus, the effective referral clause in Canadian law does not benefit physicians regardless of their decision to provide MAiD and ultimately fails to achieve its utilitarian goals. A possible solution to this issue may be the concept of a “facilitated referral”, suggested by bioethicist, Robert Trigg.[xxxiv] Rather than an effective referral where patients may be referred to physicians at other institutions or in other distant locations, a facilitated referral would comprise of the exchange of patients between on-call doctors on the floor.[xxxv] According to Trigg, this would not be a breach of deontological ethics where referrals are regarded as the physician intentionally assisting in the “killing” of the patient, because it is a simple exchange in cases between available physicians, which is already commonplace in healthcare settings.[xxxvi] However, the facilitated referral suggested by Trigg would only be a viable option if there are on-call attending physicians willing to provide MAiD when the conscientious objection and facilitated referral are issued, as previously suggested in this essay. An additional restriction I would place on facilitated referrals is an emphasis on an equivalent exchange of workload between the two physicians because some cases including MAiD cases can be more psychologically taxing on the attending physician than others.[xxxvii],[xxxviii]
In this essay, I discussed the ongoing debate regarding the permissibility of conscientious objection to MAiD by physicians through the analysis of a physician’s professional responsibility and respect to both patient and physician autonomy through deontological, principlist, and utilitarian lenses. Overall, I suggest that physician conscientious objection to MAiD should be permissible given three main conditions: (1) the reason for the physician’s objection is specified, (2) there is a physician willing to perform MAiD nearby, and (3) there is an exchange of equivalent workload between the two physicians. These clauses are by no means a comprehensive list of conditions regarding the permissibility of conscientious objection to MAiD, but they are a start to achieving a more utilitarian approach as strived for by Canadian laws. In the future, other ethical theories such as virtue ethics can be used to analyze this case to present other issues with the current MAiD laws and possibly other conditions to the viability of conscientious objection.