Notes for an address by Dr. Eugene Bereza, Chair, Committee on Ethics, Canadian Medical Association : Bill C-6 (An act respecting assisted human reproduction) : Presentation to the Senate Standing Committee on Social Affairs, Science and Technology
My name is Dr. Eugene Bereza. I am a physician and clinical ethicist at McGill University Health Centre in Montreal and Chair of the Canadian Medical Association’s Committee on Ethics. I am accompanied today by Dr. Jeff Blackmer, our Director of Ethics.
I am here today representing the CMA, but I would also like to advocate on behalf of those patients affected by infertility and those patients suffering, or who will suffer, from the myriad diseases for which medical science is searching out a cure.
While there has been considerable debate over the past decade on the moral and ethical issues associated with assisted human reproduction, discussion of this as a health issue has been overlooked all to often.
We must remember this is about the practice of medicine and above all, the health of Canadians.
My remarks today will focus on the inappropriateness of using criminal sanctions to deal with medical and scientific activities.
It is important to make it clear at the outset that the CMA does not oppose the prohibition of certain medical and scientific activities.
Others here today are in a better position to address concerns regarding the specific prohibitions proposed under Bill C-6.
Our issue is the means chosen to give effect to these prohibitions and their potential impact on the ability of a physician to ensure the welfare of his or her patients.
Criminal law is a blunt instrument. As parliamentarians, you know how difficult it can be to change the law.
For some activities prohibited under the criminal law, such as murder and theft, change is not an issue. However, the science of medicine evolves constantly, doubling every 18-24 months.
Advances in science and medical practice, coupled with the difficulty of anticipating new developments, make it difficult to adjust the law to remove criminal prohibitions as science and society changes.
In the context of prohibiting medical and scientific activities, it is the CMA’s position that the use of criminal law is inappropriate, as it would ultimately not serve our patient’s best interests.
Prohibitions, specifically those listed as prohibited activities under Bill C-6, (formerly Bill C-13) could be secured through much less drastic means than criminalization.
The CMA proposes that the determination of permissible activities, temporarily or for the longer-term, should be made by the proposed Regulatory Agency working with up-to-date scientific information while providing for public input and ethical review.
The Regulatory Agency, as proposed in the Bill, would determine if and when changes in health and safety considerations, public attitudes and values might justify allowing certain formerly prohibited activities to take place under specific conditions.
Questions to Consider
Bill C-6 begins with the statement: “This enactment prohibits assisted reproduction procedures that are considered to be ethically unacceptable.” However, many Canadians, especially those who are infertile, do not consider some or all of these procedures to be ethically unacceptable nor do the many physicians charged with their care.
The CMA questions whether criminal prohibitions are appropriate for dealing with activities about which there is considerable ethical disagreement among Canadians.
Legislators in Canada have been justifiably reluctant to use criminal law to deal with medical and scientific issues such as abortion, withdrawal of life-sustaining treatment and the conduct of medical research.
Why is an exception being made for assisted reproduction?
What sort of precedent will this set for other controversial bioethical issues?
What about the chilling effect criminalization will have on research in this important area?
For the CMA, the most important question is: what about the patients?
What about patients suffering from conditions for which research is banned but may lead to a cure?
Should they be denied the opportunity to benefit from this research?
Just as Bill C-6 unfairly targets patients, so too does the Bill’s penalties for infractions.
Jail terms of up to 10 years and fines up to $500,000 will create a climate of fear and excessive caution for physicians and scientists working in this area.
The chill created by these penalties will be such that scientists may well avoid any activity potentially covered by the bill even to the detriment of patient care.
The CMA recognizes the good faith among parliamentarians in proposing statutory bans to prohibit certain activities.
However, we are convinced in this case the potential for harm outweighs the potential benefits.
There is a better way to prohibit these activities while still facilitating important research and necessary treatments.
An Alternative Solution
Instead of instituting criminal prohibitions within the legislation, the CMA suggest the Assisted Human Reproduction Agency of Canada manage procedures deemed permissible by moving the procedures listed under “Prohibited Activities” to “Controlled Activities.” We recommend that criminal sanctions apply to breaches of agency directives such as performing activities prohibited by the agency and performing controlled activities without a license.
Such an approach would have the dual advantage of being able to both prohibit activities deemed unethical while still providing the flexibility to ensure legitimate medical and scientific progress in the treatment of infertility.
The regulatory agency should be established as soon as possible and should build on the experience and expertise of existing assisted reproduction organizations and structures that deal with practice standards, education, certification and accreditation.
The CMA’s overriding concern in addressing this legislation is the well-being of patients, in this case patients who are infertile and patients afflicted by conditions for which medical research offers significant promise of treatment.
We support government efforts to regulate assisted human reproduction and related activities, including the prohibition of certain practices temporarily or permanently where necessary.
However, we do not believe that criminalization of medical and scientific activities named in the bill is an appropriate way to achieve those objectives. We believe we have advanced a workable alternative within the spirit of the Bill.
The CMA is pleased to have this opportunity to address the Canadian Panel on Violence Against Women. As a professional organization with a leadership role in societal issues affecting health, it is both appropriate and important for the CMA to be actively involved in addressing the problems associated with violence. The extremely high incidence of abuse, the associated severe physical, mental and psychological health problems and the significant role played by physicians in recognizing and caring for victims make this a priority for organized medicine.
The CMA has significant experience and expertise in this field. In 1984, the CMA General Council passed a resolution stating:
"That Health and Welfare Canada and the Provincial Ministries of Health and Education
alert the Canadian public to the existence of family violence, including wife assault, child
abuse, and elder abuse, and to the services available which respond to these problems,
and that organized medicine (through such vehicles as professional journals, newsletters,
conferences and formal medical education) alert the physicians of Canada to the problem
and that all physicians learn to recognize the signs of family violence in their daily contact
with patients and undertake the care and management of victims using available
community resources." (Resolution #84-47)
The CMA calls the Panel's attention to four major areas of concern: Recognition and Treatment, Education and Training, Protocol Development and Research.
1. Recognition and Treatment:
Recognition includes acknowledging the existence and prevalence of abuse and identifying
victims of violence. Violence against women is clearly a health issue and one that should be given a very high priority. Statistics indicate that nearly one in eight Canadian women will be subject to spousal violence in her lifetime and that one in five will be a victim of sexual assault. Violence against women is a major determinant of both short -and long-term health problems including traumatic injury, physical and psychological illnesses, alcohol/drug addiction and death. Furthermore, although it is critically important to recognize that abuse crosses all racial and socio-economic boundaries, there are strong indications that certain groups are particularly vulnerable to abusive acts (e.g., pregnant, disabled and elderly women).
Recognition includes acknowledging and understanding the social context within which violence occurs. Violence is not an isolated phenomenon, but is part of the much broader issue of societal abuse of women.
Physicians are often the first point of contact for patients who have been abused physically, sexually, mentally and/or psychologically. They have a vital role to play in identifying victims and providing treatment and supportive intervention including appropriate referral. Abuse is not always readily apparent, however, and may go undetected for extended periods of time. Numerous studies have shown that both physicians and patients often fail to identify abuse as an underlying cause of symptoms. Such delays can result in devastating and sometimes fatal consequences for patients. Even in those cases where abuse is apparent, both physicians and patients often feel uncomfortable talking openly about the abuse and the circumstances surrounding it. It is the physician's role and responsibility to create a safe and supportive environment for the disclosure and discussion of abuse.
Furthermore, the lack of resources for support services or the lack of awareness of what services are available to provide immediate and follow-up care to patients in need may discourage physicians from acknowledging the existence of abuse and identifying victims. It is clear that improvement in the ability and the degree to which victims of abuse are recognized and given appropriate assistance by physicians and other caring professionals in a non-threatening environment is urgently required.
Individuals who are abused usually approach the health care system through primary contact with emergency departments or other primary care centres. The care available in such settings is acute, fragmented and episodic. Such settings are not appropriate for the victims of violence.
The challenge that we, as physicians, recognize is to be able to provide access in a coordinated way to medical, social, legal and other support services that are essential for the victim of violence. This integration of services is essential at the point of initial recognition and contact. The CMA has been involved with eight other organizations in the Interdisciplinary Project on Domestic Violence (IPVD), the primary goal of which is to promote interdisciplinary co-operation in the recognition and management of domestic violence.
2. Education and Training: The spectrum of abuse is complex; the victims are diverse; expertise in the field is developing. The current system of medical education neither provides health care personnel with the knowledge or skills nor does it foster the attitude to deal adequately with this issue. Some of CMA's divisions have played an active role in this area. For instance, the Ontario Medical Association has developed curriculum guidelines and medical management of wife abuse for undergraduate medical students. It is ,important that there be more involvement by relevant medical groups in developing educational and training programs and more commitment from medical educators to integrate these programs and resources into the curriculum.
Programs must be developed and instituted at all levels of medical education in order that physicians can gain the requisite knowledge and skills and be sensitive to the diversity of victims of violence.
The CMA believes that the educational programs must result in: 1) understanding of the health consequences of violence; 2) development of effective communication skills; and, 3) understanding of the social context in which violence occurs.
Understanding of the social context in which violence occurs will require an examination of the values and attitudes that persist in our society, including a close consideration of the concepts of gender role socialization, sexuality and power. This is required in order to dispel the pervasive societal misconceptions held by physicians and others which act as barriers to an effective and supportive medical response to patients suffering the effects of violence.
3. Development of Protocols: The CMA recognizes the need for more effective management and treatment of the spectrum of problems associated with violence against women. Health care facilities, professional organizations and other relevant groups are challenged to formulate educational and policy protocols for integrated and collaborative approaches to dealing with prevention of abuse and the management of victims of violence.
The CMA and a number of its divisions have been active in this area:
In 1985, the CMA prepared and published Family Violence: Guidelines for Recognition and Management (Ghent, W.R., Da Sylva, N.P., Farren, M.E.), which dealt with the signs and symptoms, assessment and management, referral assistance and medical records with respect to wife battering, child abuse and abuse of the elderly;
The Ontario Medical Association published Repons on Wife Assault in January 1991. This document, endorsed by the CMA, examines the problem of wife assault from a medical perspective and outlines approaches to treatment of the male batterer and his family;
The Medical Society of Nova Scotia has developed a handbook entitled Wife Abuse: A Handbook for Physicians, advising on the identification and management of cases involving the battering of women;
The New Brunswick Medical Society has produced a series of discussion papers on violence and in conjunction with that province's Advisory Council on the Status of Women, has produced a graphic poster depicting physical assault on pregnant women as a way of urging physicians to be alert for signs of violence against women;
The Medical Society of Prince Edward Island has worked cooperatively with the provincial Department of Health and Social Services and the Interministerial Committee on Family Violence to produce a document entitled Domestic Violence: A Handbook for
The CMA encourages continued involvement by the medical profession in the development of initiatives such as these and welcomes the opportunity to work in collaboration with other professionals involved in this area.
4. Research The CMA has identified violence against women as a priority health issue. Like rriany other areas in women's health, there is a need for research focusing on all aspects of violence and the associated problems. More specifically, the CMA maintains that there should be more research on the incidence of abuse (particularly as it relates to particular groups), on ways to facilitate the disclosure by victims of abuse and on the effectiveness of educational and prevention programs.
The CMA recognizes that the medical profession must show a greater commitment to ending abuse of women and providing more appropriate care and support services to those who are victims of violence. The CMA possesses unique skills and expertise in this area and welcomes the opportunity to work with the Panel on this challenging social and health problem.
In this submission to the House of Commons Standing Committee on Justice and Human Rights, the CMA’s feedback is focused on three of the legislative objectives of Bill C-14, given their relevance to the CMA’s Principles-based Recommendations for a Canadian Approach to Assisted Dying.
On behalf of its more than 83,000 members and the Canadian public, the CMA performs a wide variety of functions. Key functions include advocating for health promotion and disease/injury prevention policies and strategies, advocating for access to quality health care, facilitating change within the medical profession, and providing leadership and guidance to physicians to help them influence, manage and adapt to changes in health care delivery.
i) Robust Safeguards
First, the CMA supports the legislative objective of ensuring a system of robust safeguards to the provision of medical assistance in dying. The safeguards proposed by Bill C-14 include: patient eligibility criteria, process requirements to request medical assistance in dying, as well as monitoring and reporting requirements.
The CMA is a voluntary professional organization representing the majority of Canada’s physicians and comprising 12 provincial and territorial divisions and over 60 national medical organizations.
ii) Consistent, Pan-Canadian Framework
Second, the CMA supports the legislative objective that a consistent framework for medical assistance in dying in Canada is desirable. In addition to robust safeguards, key measures proposed by Bill C-14 support the promulgation of a consistent framework across jurisdictions include legislating definitions for “medical assistance in dying” and “grievous and irremediable condition.”
The CMA’s Principles-based Recommendations reflect on the subjective nature of what constitutes “enduring and intolerable suffering” and a “grievous and irremediable condition” as well as the physician’s role in making an eligibility determination.
iii) End-of-Life Care Coordination System
Thirdly, the CMA supports the objective to develop additional measures to support the provision of a full range of options for end-of-life care and to respect the personal convictions of health care providers. The fulfilment of these commitments with federal non-legislative measures will be integral to supporting the achievement of access to care, respecting the personal convictions of health care providers, and developing a consistent, pan-Canadian framework.
The CMA encourages the federal government to rapidly advance its commitment to engage the provinces and territories in developing a pan-Canadian end-of-life care coordinating system. It will be essential for this system to be in place for June 6, 2016. At least one jurisdiction has made a system available to support connecting patients with willing providers. Until a pan-Canadian system is available, there will be a disparity of support for patients and practitioners across jurisdictions.
iv) Respect Personal Convictions
Finally, it is the CMA’s position that Bill C-14, to the extent constitutionally possible, must respect the personal convictions of health care providers. In the Carter decision, the Supreme Court of Canada emphasized that any regulatory or legislative response must seek to reconcile the Charter rights of patients wanting to access assisted dying and physicians who choose not to participate in medical assistance in dying on grounds of conscientious objection.
The CMA’s Principles-based Recommendations achieves an appropriate balance between physicians’ freedom of conscience and the assurance of effective and timely patient access to a medical service. From the CMA’s significant consultation with our membership, it is clear that physicians who are comfortable providing referrals strongly believe it is necessary to ensure the system protects the conscience rights of physicians who are not.
While the federal government has achieved this balance with Bill C-14, there is the potential for other regulatory bodies to implement approaches that may result in a patchwork system. The CMA’s position is that the federal government effectively mitigate this outcome by rapidly advancing the establishment of the pan-Canadian end-of-life care coordinating system.
CMA Supports Cautious Approach for “Carter Plus”
The CMA must emphasize the need for caution and careful study in consideration of “Carter Plus”, which includes: eligibility of mature minors, eligibility with respect to sole mental health conditions, and advance care directives. The CMA supports the federal government’s approach not to legislate these issues, rather to study them in greater detail.
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