The Quebec College of Physicians and Surgeons
has “tentatively proposed” legalized euthanasia. The college says that it could
be seen “as part of appropriate care in certain particular circumstances.” As a
result, the Quebec Legislative Assembly has established a multi-party
committee, “La commission de la santé et des services sociaux” (the Health and
Social Services commission) consisting of 20 members of the Assembly.  

Recently, Dr Gaétan Barrette, the president of
the federation of Quebec medical specialists, Dr Yves Lamontagne of the Quebec
College of Physicians and Yves Robert, secretary of the College gave evidence
before the commission. The first two men are clearly on the public record as
supporting euthanasia, and the third appears to hold the same view.

There is a saying in
ethics that “good facts are essential to good ethics.”

But if Dr Barrette, Dr
Lamontagne and Yves Robert, secretary of the College, are accurately reported,
none of them had  his facts
straight in giving evidence before the commission.

Dr Barrette said that in
caring for terminally ill people, “doctors are aware they can be charged
with murder if they administer a ‘palliative sedative’ before a patient is on
his or her last breath.” This is not euthanasia, although,
like Dr Barrette, 49 percent of Quebec physicians recently polled mistakenly
thought it was.

Palliative means the
sedative was necessary to relieve pain and suffering and was not given with an
intention of killing the patient. That cannot result in a murder charge, or any
other legal charge, unless the patient refused it.

Indeed, unreasonably
failing to provide necessary treatment for pain and suffering could constitute
unprofessional conduct with resultant disciplinary measures, medical
malpractice and legal liability for damages, and, in extreme cases, criminal
negligence. It is now also widely recognized that for a healthcare professional
to negligently leave a patient in serious pain is a breach of fundamental human
rights.

Dr Barrette also said,
“We want legislation in tune with the wishes of the public.” But just
because the public wants something or a majority votes for it doesn’t mean it
is ethical – or even wise. Democratic decisions and ethical ones are not
necessarily the same.

The Montreal Gazette
reported that Dr Barrette and Dr Lamontagne “told the committee that
doctors do not want to perform assisted suicides.”

“We are not there
to execute people,” Lamontagne said.

This boggles the mind. They
are recommending that euthanasia be legalized. What do they think euthanasia
involves? And if, as they are proposing, killing patients is acceptable, why is
helping those patients to kill themselves not acceptable? At least accepting
both would have the virtue of consistency.

Finally, the statement
of Yves Robert, “that Quebec is the only jurisdiction in Canada where
patients can refuse medical treatment, which can lead to death,” is simply
wrong.

All adult Canadians have
the right to refuse all medical treatment, either at the time, if competent,
or, if incompetent, through prior advance directives. The only exceptions are
if the person must be treated to avoid a danger to public health or the person
is mentally ill and, as a result, constitutes a serious danger to himself or
others.

In the latter case, very
stringent requirements must be fulfilled to override the patient’s refusal of
treatment.

These witnesses seem to
be confusing euthanasia and necessary pain or physical suffering relief
treatment. The distinction between them hinges on the physician’s primary
intention in giving the treatment. Pain or physical suffering relief treatment,
including sedation, given with a primary intention to relieve pain and physical
suffering and reasonably necessary to achieve that outcome is not euthanasia,
even if it did shorten the patient’s life (a rare occurrence). Any
intervention, including the use of sedation, carried out with a primary
intention of causing the patient’s death and resulting in that outcome, is
euthanasia.

Another source of confusion

I also gave evidence
before the commission and encountered yet another confusion. I was asked
on more than one occasion to explain what the ethical and legal differences
between withdrawal of treatment that results in death and euthanasia are, and
why I agree that the former can be ethically and legally acceptable, provided
certain conditions are fulfilled, and the latter cannot be. This is a central
and important question in the euthanasia debate.

Primary
intention…

First, the primary intention is different in the
two cases: In withdrawing life-support treatment it is to respect the patient’s
right to refuse all treatment; in euthanasia it is to kill the patient. The
former intention is ethically and legally acceptable; the latter is not.

Rights…

Patients have a right to
refuse treatment, even if that means they will die. This is an exercise of
their right to autonomy and self-determination. But the content of that right
is a right not to be touched without their consent – a right to inviolability –
which is a “negative content” right, a right against something being done to the person with the right. It is not a right to die and does not establish any such right (as pro-euthanasia advocates
argue it does), although death results from respecting the right to
inviolability.

In other words,
pro-euthanasia advocates use this recognition of a right to refuse treatment
even when it results in death, to argue that, likewise, patients should be
allowed to exercise their right to autonomy and self-determination to choose
death through lethal injection. They say that there is no morally or ethically significant
difference between these situations, and there ought to be no legal difference.

But the content of the
right they want to see recognized is a right to be killed, often confusingly referred
to as a “right to die”. There is a “right to be allowed to die” by refusing treatment, which is not a right to be
killed, euthanasia. Such a right would be a “positive content” right, a right to something.  There is no such right, at present, in Canadian law and the
law is very much more reluctant to recognize positive content rights – that is,
“rights to” something – than negative content rights – that is, “rights
against” something.

Causation…

Which brings me to the
issue of causation, which also
differentiates refusals of treatment that result in death from euthanasia. In
refusals of treatment that result in death, the person dies from their
underlying disease – a natural death. The withdrawal of treatment is the
occasion on which death occurs, but not its cause. If the person had no fatal
illness, they would not die. In contrast in euthanasia, the cause of death is
the lethal injection. Without that, the person would not die at that time from
that cause.

Confusion
as to the issue…

The fact that the
patient dies in both refusing treatment that results in death and in euthanasia
is one of the causes of the confusion between the two situations. If we focus
just on that outcome of death, as one of the honourable members of the
committee did in questioning me, we miss what the real point of the distinction
between the two situations is.

The issue in the
euthanasia debate is not if we die –
we all eventually die. The issue is how
we die and whether some means of dying, such as euthanasia and physician-assisted
suicide, should remain prohibited. I believe they should.

Margaret
Somerville is director of the Centre for Medicine, Ethics and Law at McGill
University, and author of The Ethical Imagination: Journeys of the Human
Spirit.

Margaret Somerville AM, DSG, FRSC, DCL is Professor of Bioethics at the University of Notre Dame Australia School of Medicine (Sydney campus). She is also Samuel Gale Professor of Law Emerita, Professor...