Bioethics in Canada 1 Nuala Kenny

Bioethics in Canada 1 Nuala Kenny I. Introduction Bioethics was firmly entrenched in academic, clinical, and health policy discussions and debates as Canada entered the twenty-first century. This chapter presents an overview of important and distinctive features of bioethics in Canada. As the largest country in the Americas with a relatively small population, bordering and profoundly affected by medical and social developments in the United States, Canada revels in its unique identity. The distinctive nature of Canadian bioethics is rooted in these realities. This reflection begins by sketching the early development of bioethics and then moving to a more detailed review of Canadian bioethics during the period of 1990-2002. Canada’s bioethics has developed with contributions from many sources: ethics education for health professionals, professional codes of ethics, difficult clinical cases, federal and provincial legislation, court decisions, commission and committee reports, and work- ing papers. Here, selections from each of these sources will be presented to provide a fla- vor of the vitality of Canadian bioethics and the challenges it faces. The Canadian health care system is the particular context in which these developments occurred. The system is understood by Canadians to be a manifestation of the values of justice, fairness, and compassion. This macro-ethical framework is central to Canadian bioethics. II. History The early history of ethics in Canada can be divided into the “traditional” period before 1960 and the period of modern bioethics from 1960s to the present. There is no authorita- tive early history of bioethics in Canada (Roy & Williams, 1995). However, Canada and the Canadian Medical Association (CMA) were both founded in 1867. In 1868, the CMA adopted a Code of Ethics patterned on that of the American Medical Association. The Canadian Nurses Association was established in 1908 and adopted a Code of Ethics prepared by the International Council of Nurses in 1854. These two important professional organizations contributed no specific “Canadian content” to the codes they adopted. The Roman Catholic Church played an important role in Canadian health care and in early deliberations regarding moral and ethical issues in health care. The Catholic 4THE ANNALS OF BIOETHICS Hospital Association of the United States and Canada (CHAUSC), founded in 1915, adopted a Code of Ethics in 1921. The Catholic Hospital Association of Canada became independent in 1954 and adopted its own moral code in 1955. This Code was most recently revised in 2000. By the 1940s, one notes Canadian publications in medical- morals and medical ethics (LaRochelle & Fink, 1943). As was the case in the United States, theological writing focused on emerging ethical issues in health care before the entrance of philosophers. There were few formal contributions to medical ethics until the 1940s. Medical ethics was a hybrid of etiquette and adherence to general codal precepts. The renowned Canadian physician William Osler (1849-1919) taught about medical practice and the virtues of equanimity, imperturbability, and detachment (Bliss, 1999). These indicate clearly the tone of medical ethics of the time. By the mid-1960s, medical ethics was trans- formed by scientific and technological advances and social change. While influenced by developments in the United States, Canadian bioethics advanced through the work of some prominent pioneers in Canadian bioethics and professional health care associations, academic institutions, and public commissions. Ethics education is a required component of health professional education in Canada. Under the leadership of Dr. Vincent Sweeney and Alistair Browne, meetings were held in the late 1980s to explore the programs that had been developed for undergraduate ethics education in the sixteen Canadian medical schools; the goal was to learn from the best programs and to develop some consistency among them. This was voluntary until the Medical Council of Canada (MCC) issued its policy “Considerations of the Legal, Ethical and Organizational Aspects of the Practice of Medicine (CLEO)” (Kenny & Baylis, 1998) which requires the formal inclusion of ethics and health law in the licensing examinations for new physicians. Specific ethics learning objectives include confidentiality, consent to investigation or treatment, truth telling, resource allocation, research ethics, physicians and industry, the doctor-patient relationship, personal and professional conduct, and controversial and evolving ethical issues in practice (e.g., euthanasia, maternal-fetal con- flict, genetic testing, and so forth). The Royal College of Physicians and Surgeons of Canada (RCPSC), the accreditation body for all specialty training programs in Canada, has mandated ethics in postgraduate training. The College’s Bioethics Committee, under the leadership of Peter Singer, developed the Bioethics Education Project, an ethics curricula for residency programs, which is mounted on the RCPSC website. The Pediatrics Ethics Network (PedEthNet), led by Abbyann Lynch, developed a full ethics curriculum for use in Canadian pediatrics residency programs (1996). This project, begun prior to the Bioethics Education Project, was incorporated as the pediatric component. In 1996, continuing education for practicing physicians was improved through a regular series in the Canadian Medical Association Journal (CMAJ) entitled “Bioethics for Clinicians” (Singer, 1996, pp. 189-190) and subsequently published as a text (Singer, 1999). The series has become a regular feature in the journal. Philip Hebert (1996) and Michael Yeo (1996) contributed to ethics education by providing texts for use in Canadian educational programs. Virtually all health professional groups have developed educational guidelines. The Alberta Provincial Health Ethics Network (PHEN) has been a pio- neer in educational programming for clinical and research ethics boards as well as health care administrators. BIOETHICS IN CANADA 5 Royal Commissions and Commissions of Inquiry are used to address social and policy issues. Between 1970 and 1989, there were more than thirty commission inquiries into a wide range of bioethical issues (Williams, 1989, pp. 425-444). In the absence of a formal federal mechanism, commissions are still the dominant approach to achieve public and professional input into pressing policy issues with social and ethical implications. The 1867 Constitution Act was amended in 1982 by the Canadian Charter of Rights and Freedoms. This obliges government agencies not to violate fundamental rights, such as life, liberty, and security of the person, freedom of conscience, thought, belief, and expression, and freedom from discrimination. Democratic support for legislation that vio- lates the Charter does not compel the courts to support the legislation, since the Charter protects fundamental rights. As the selected case law dramatically demonstrates, the Charter has had a profound effect on the interpretation of ethical and legal obligations in the context of health care and medical decision-making. A comprehensive discussion of the interaction between bioethics and law in Canada has been the subject of study over the last decade in particular (Roy, Williams, & Dickens, 1994; Downie & Caulfield, 1999). Some selected exam- ples from case law relevant to bioethics will demonstrate this relationship. The landmark 1980 decision in Reibel v. Hughes (1980) moved the standard for patient consent from the “reasonable practitioner” standard (i.e., what would the reasonable clinician have disclosed), to a reasonable patient standard (i.e., what would the reasonable patient need to know in order to make a decision). The 1983 Stephen Dawson decision emphasized the ethical significance of accurate medical information in life and death decisions. The 1986 case of Eve followed mid-1970s through 1980s debates and position papers on contraceptive sterilization for some mentally disabled persons. For some, this procedure could be truly beneficial because it would allow these persons to enjoy sexual fulfillment without the responsibility of bearing and rearing children. Sensitive to the history of involuntary sterilization of mentally disabled persons for other, more ignoble, reasons, the majority of Canadians supported sterilization. Controversy ensued over by whom and how the decisions should be made. The Eve decision declared categorically that sterilization should never be authorized for non-therapeutic reasons. In the absence of a person’s consent, the Court believed it impossible to determine that the procedure was for the person’s benefit. The decision continues to be the focus for discussion and debate about the dilemma posed when what appears to be ethically correct is judged to be illegal. The Canadian national health insurance system, as defined in the Hospital Insurance Act of 1957, was affirmed in the 1984 Canada Health Act (CHA). The principles of the CHA and provincial jurisdiction over health are distinctive features of Canadian health care (Taylor, 1987). The principles are comprehensiveness, universality, accessibil- ity, portability – across all Canadian provinces – and public administration. They ground a single-tier, not-for-profit system. The federal government contributes a substantial component of the funding; provincial governments, in return, incorporate these principles into their operation of the system. For Canadians, this health care system is a strong manifestation

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