the WMA Updates Ethical Code Upholding Conscience + Reaffirms Opposition to Euthanasia
Updated ethical code upholds conscience in the medical profession
In April 2021, the World Medical Association (WMA) conducted a public consultation on amendments to its International Code of Medical Ethics (ICoME). The WMA is an international body of physicians whose aim is to ensure the independence of physicians and to work for the highest possible standards of ethical care in medicine. The WMA’s ICoME acts as a foundation of ethical principles for physicians worldwide.
One of the originally proposed amendments in April 2021 was the adoption of a statement in support of mandatory effective referrals in cases of conscientious objection, which was drafted as follows:
Conscientious objection must only be considered if the individual patient is not discriminated against or disadvantaged, the patient’s health is not endangered, and undelayed continuity of care is ensured through effective and timely referral to another qualified physician. [emphasis in original]
As previously reported, CLF submitted a response to the public consultation on 28 May 2021, expressing concern about the referral requirement. In its submissions, CLF explained how forcing physicians to refer patients for controversial procedures such as euthanasia, contrary to their medical ethics and conscience, can cause harm:
Respect for and accommodation of independent physician conscience is crucial to the continuation of medical practice as a fundamentally humanitarian endeavour, and not simply a technician’s trade. The WMA is uniquely positioned to influence this continuation in the face of an increasingly consumeristic and transactional view of medical practice. We urge the WMA to do so by restating its support for the accommodation of conscience, particularly in those cases where human life hangs in the balance.
CLF also expressed concern about the challenges mandatory effective referrals are presenting in Ontario. On this matter, CLF has made submissions to the College of Physicians and Surgeons of Ontario (CPSO), urging them to similarly respect freedom of conscience, especially after Bill C-7’s expansion of assisted death for patients who are not dying or near death. These concerns are heightened by the prospect that assisted death may soon be offered in Canada to patients whose sole underlying condition is a mental disorder, and to minors, despite significant concerns from disability rights groups and medical experts.
At its General Assembly in October 2022, the WMA presented a revised text for its ICoME, which was unanimously adopted. The version that existed at the time of the public consultation set out 22 duties of physicians relating to the general practice of medicine, patients, and colleagues. The newly adopted version now sets out 40 such duties. In a press release dated 8 October 2022, the WMA said:
During the debates, the most contentious proposal concerned mandatory referral, obliging doctors who object to controversial procedures such as physician assisted suicide or abortion to refer to a willing doctor. After considerable debate, a compromise agreement was reached that does not require doctors to refer in case of a conscientious objection. [emphasis added]
The new wording of the ICoME reads:
Physician conscientious objection to provision of any lawful medical interventions may only be exercised if the individual patient is not harmed or discriminated against and if the patient’s health is not endangered.
The physician must immediately and respectfully inform the patient of this objection and of the patient’s right to consult another qualified physician and provide sufficient information to enable the patient to initiate such a consultation in a timely manner.
CLF Executive Director and General Counsel, Derek Ross, comments:
CLF, along with other groups and physicians, urged the WMA to adopt a more balanced approach, one which respects conscience rights – and they have done so. Conscientiously-objecting doctors are to inform patients of their right to consult another physician, but are not required to actively participate through forced referrals.
The WMA reaffirms its opposition to euthanasia and physician-assisted suicide
Shortly after adopting its new ICoME in October 2022, the WMA issued its revised Declaration of Venice on End of Life Care, in which the WMA states that it “remains firmly opposed to euthanasia and physician assisted death, as set forth in the Declaration on Euthanasia and Physician-Assisted Suicide.”
The WMA’s Declaration on Euthanasia and Physician-Assisted Suicide (adopted in 2019) defines “euthanasia” and “physician-assisted suicide” (collectively referred to in Canada as “medical assistance in dying”) as follows:
For the purpose of this declaration, euthanasia is defined as a physician deliberately administering a lethal substance or carrying out an intervention to cause the death of a patient with decision-making capacity at the patient’s own voluntary request. Physician-assisted suicide refers to cases in which, at the voluntary request of a patient with decision-making capacity, a physician deliberately enables a patient to end his or her own life by prescribing or providing medical substances with the intent to bring about death.
In that Declaration, the WMA states: “No physician should be forced to participate in euthanasia or assisted suicide, nor should any physician be obliged to make referral decisions to this end”.
Importantly, the WMA distinguishes euthanasia/physician-assisted suicide from palliative care. Palliative care has as its objective “maintain[ing] patient dignity and freedom from distressing symptoms”, and the WMA affirms that “[p]alliative care at the end of life is part of good medical care” by keeping “a patient as comfortable as possible and the patient’s pain controlled while recognizing the importance of attention to the social, psychological and spiritual needs of the patient, and his or her family and intimate associates.”
Distinguishing “medical assistance in dying” (MAID) from ‘medical assistance for patients who are dying’ (palliative care)
The distinction between euthanasia and palliative care is an important one, which has perhaps been obfuscated in Canada by the term “medical assistance in dying” (“MAID”). In Canada, MAID refers only to euthanasia/assisted suicide, i.e. intentionally terminating the life of a patient, at their request.[1] Although palliative care offers patients medical assistance throughout the dying process, it is not the same as MAID – palliative care aims to improve a person’s quality of life, and does not seek to end it.
This distinction is reflected in Canadian law and policy. For example, the Framework on Palliative Care in Canada explains that “MAID is a medical intervention which intentionally ends a person’s life at their request, while palliative care intends neither to hasten nor postpone death, and should be available over the continuum of care of a life-limiting illness.”
This distinction also has important legal and practical implications. Because MAID involves the intentional termination of life, it requires specific “exemptions from the offences of culpable homicide, of aiding suicide and of administering a noxious thing” in the Criminal Code of Canada,[2] whereas palliative care does not. For these reasons, MAID is treated differently, by law, from all health care services, including palliative care, through an extensive regime in the Criminal Code. This is one of the reasons why CLF and others have argued that physicians must not be required to participate in MAID, or proactively raise it with their patients as a “medical solution”. This latter point was echoed by the Standing Senate Committee on Legal and Constitutional Affairs last year:
Requests for MAiD should be strictly patient-initiated. The committee heard from many witnesses that the inherent power imbalance between patients and their medical practitioners constitutes a big challenge for ensuring that patients are making free and informed choices and are not inappropriately coerced into seeking access to MAiD. [emphasis added]
One of the ways the Criminal Code regulates MAID is by requiring physicians to explore palliative care options with patients before proceeding with it; indeed, Canadian case law indicates that this is necessary for patients to provide informed consent.[3] This is also reflected in the Framework on Palliative Care in Canada Act which notes that “a request for physician-assisted death cannot be truly voluntary if the option of proper palliative care is not available to alleviate a person’s suffering”.
All of this underscores the importance of funding and supporting palliative care in Canada, and respecting the distinctions maintained by palliative care physicians and communities between the care they provide and the termination of life (i.e. MAID). It also underscores the importance of improving public awareness so that Canadians understand the difference between palliative care, which offers medical assistance through the dying process, from MAID procedures, which intentionally cause a patient’s death.
Patients deserve meaningful access to, and knowledge of, the full range of supports available to them for their health care decisions to be, in the words of Carter, “fully informed”. Yet these supports are, in many cases, lacking. According to the Federal Government’s latest annual report, 179 people who died by MAID in 2021 “required but did not receive disability support services” (another 1,968 cases were “unknown”). In addition, palliative care was needed but not accessible for 201 people who died by MAID in 2021. Given that the option of proper care was not available to alleviate their suffering, can it be said that these deaths were, in the words of the Framework on Palliative Care in Canada Act, “truly voluntary”?
CLF Submissions to the Parliamentary AMAD Committee
CLF recently emphasized these concerns, along with the WMA’s Declaration on Euthanasia and Physician-Assisted Suicide, to Parliament’s Special Joint Committee on Medical Assistance in Dying (AMAD Committee).
As previously reported, CLF’s Executive Director and General Counsel, Derek Ross, was invited to appear before the AMAD Committee in October 2022 to speak on the state of palliative care in Canada. In addition to his oral submissions, Derek provided a written response to one of the Committee’s questions about the rights of communities unable to provide MAID based on conscience. CLF had also made detailed written submissions to the AMAD committee in May 2022.
The Committee issued an interim report on MAID for mental illness earlier this year; it is expected to issue its final report in 2023.
CLF remains committed to pursuing justice for marginalized groups, advocating for the equal right to life for persons with disabilities, and upholding the rights of medical professionals to practice in accordance with their ethics and conscience.
“Reconciling rights requires ensuring reasonable choices for patients, while not forcing any one to act against their will or ethics to facilitate another person’s death.”
[1] See Criminal Code, RSC 1985, c C-46, s 241.1 (“medical assistance in dying”).
[2] See Criminal Code, RSC 1985, c C-46, ss 227(1),(4), and ss 241(2)–(5.1).
[3] See Criminal Code, RSC 1985, c C-46, ss 241.2(1)(e) and (3.1)(g). In Carter v Canada, 2015 SCC 5, the trial judge said that “the range of treatment options described would have to encompass all reasonable palliative care interventions” (para 831). The court also required the plaintiff to be referred to a physician with palliative care expertise for a palliative care consultation before proceeding with MAID (para 1414).