When the Supreme Court overturned the ban on physician-assisted dying earlier this year, they didn't check with doctors first. A commentary just published in the Canadian Medical Association Journal says it's important for physicians to speak up now.
The article - by Dr. Jocelyn Downie, law and medicine professor at Dalhousie University and a member of the pro bono team representing the plaintiff (Kay) Carter at the Supreme Court, says doctors need to become key contributors to the public discussions on the many procedural and other questions regarding physician assisted death.
The Supreme Court decision declaring the ban on assisted suicide in violation of the Charter was suspended for 12 months to allow lawmakers the opportunity to draft legislation. Downie argues that doctors must enter the discussion now, while they have the opportunity to weigh in on the design of the law.
There are many issues regarding assisted suicide about which doctors need clarity. For instance, the Court did not design a regulatory framework for permitting doctor-assisted death. There needs to be procedural safeguards. Can one physician okay it or do we need two? How many days need to pass between a request for doctor assisted death and the assistance being provided? Should hospitals be permitted to refuse outright such requests? Then there are issues related to the kinds of people eligible. Will physician-assisted dying be permitted for patients with dementia who signed an advance directive requesting assisted death before the onset of the dementia? Would mature minors be permitted access to assisted death?
Beyond the obvious - that doctors should have a seat at the table since they're doing the assisting - there are other good reasons why doctors should play a paramount role in helping craft legislation.
As Dr. Downie argues, doctors practice evidence-based medicine. That puts them in a good position to weigh the experience and to evaluate the evidence in other countries with doctor-assisted death. Take, for instance, the relationship between doctor assisted death and access to palliative care.
Some critics of doctor assisted death worry that its availability precludes access to palliative care. Proponents say countries with doctor-assisted death have seen increased access to palliative care. Doctors here in Canada are in a good position to evaluate the evidence one way or another.
If implemented, doctors will be crucial in conducting research on the impact of doctor-assisted death here in Canada. Other countries that have doctor-assisted dying have mandatory reporting requirements. To make that work here in Canada, we need the input of physician leaders like the Canadian Medical Association (CMA). In the longer term, the people who run medical schools and residency programs will need to make sure there are enough physicians willing, able and trained to provide assisted dying with compassion.
Resolving the issue of conscientious objection to assisted death is key to moving forward. Physicians who don't want to take part in assisted dying are in the majority. According to an article in the National Post, internal polling by the CMA found that 26.7% of doctors would be willing to participate in assisted suicide, and 20.9% with voluntary euthanasia.
That means well over 70% don't want to participate. For those MDs, it's even more essential that physicians give input into proposed legislation. Thus, the issue of conscientious objection needs to be resolved, given the Court's clear ruling that the decision does not compel any physician to provide assisted dying.
We need clear guidance regarding the duty to refer patients to MDs willing to provide it. That said, the article says physicians must stand up for colleagues who object to assisted dying as well as for patients for and against the practice.
There are some indications that the 12 month deadline could be in play. There have been calls to ask the Supreme Court to provide an extension on the 12-month suspension of the decision to buy more time. That plus a federal election later this year could slow down the process of crafting legislation.
As to the role that might be played by physicians, given the diametrically opposed viewpoints between proponents and critics, it may be necessary for provincial colleges to set up a framework to step in and make referrals when a patient who wants assisted death can't find a physician willing to do it. In general, the CMA hasn't traditionally favoured mandatory referral. But it's up for discussion.
Would the CMA make an exception in the case of doctor-assisted death? Not without a lot of deep internal soul searching in my opinion. And without resolving the issue of how conscientious objection is permitted to manifest itself, it's possible we could end up with a law permitting doctor assisted death and no one to do it.