Institutional Conscientious Objection to Medical Assistance in Dying in Canada: A Critical Analysis of the Personnel-Based Arguments

Abstract

Debate rages over whether Canadian provincial and territorial governments should allow healthcare institutions to conscientiously object to providing medical assistance in dying (MAiD). This issue is likely to end up in court soon through challenges from patients, clinicians, or advocacy groups such as Dying With Dignity Canada. When it does, one key question for the courts will be whether allowing institutional conscientious objection (ICO) to MAiD respects (i.e., shows due regard for) the consciences of the objecting healthcare institutions, understood as unitary entities. This question has been thoroughly explored elsewhere in the academic literature. However, another key question has been underexplored. Specifically, precedent set by the Supreme Court of Canada’s decision in Loyola High School v. Quebec (Attorney General) suggests that the courts will consider whether allowing ICO to MAiD respects the consciences of the personnel within objecting healthcare institutions. My answer to this question is no, by which I mean that allowing ICO to MAiD shows undue disregard for some consciences and undue regard for others. To justify this answer, I analyze the arguments that hold that allowing ICO in healthcare respects the consciences of the personnel within objecting healthcare institutions. My conclusion is that none of these personnel-based arguments succeed in the case of ICO to MAiD. Some fail because they are wrong about the nature of conscience and complicity. Others fail because they contradict the arguments’ proponents’ positions on conscientious objection by individual healthcare providers. Still others fail because they are internally inconsistent.

Institutional Resistance to Medical Assistance in Dying in Canada: Arguments and Realities Emerging in the Public Domain

“…Since then, a number of challenges to legislative interpretation and service implementation have emerged [ 1 , 2 , 3 , 4 ]. Among these, healthcare institutions that choose not to participate in MAiD present a complex area of concern [ 5 , 6 , 7 , 8 , 9 ], with ethical, social, and medicolegal tensions between collectively held conscience rights and patient rights to equitable healthcare access [ 10 , 11 ]. While several other MAiD-related challenges have emerged as top research priorities, institutional resistance to MAiD—and the resultant impacts on patients—has remained a largely uninvestigated, but real and important problem.…”