One of the recommendations in this week’s federal committee report on assisted death could change the way Canada treats public health institutions.
The report called on federal and provincial governments to “ensure that all publicly funded health care institutions provide medical assistance in dying.”
“If a health care facility is publicly funded, it must provide [medical assistance in dying],” the report says.
That’s a big deal: There’s no question individuals have the right to conscientiously object to procedures that contravene their beliefs.
And the report makes provision for this, saying they must provide patients with an “effective referral” to someone who will give them the care they seek.
But this recommendation suggests institutions such as hospitals don’t have that same right to conscientious objection.
“If you get public funding, the position in this report is you have an obligation to provide all legal services,” said Dalhousie University’s Jocelyn Downie, who co-authored a provincial-territorial report on assisted death last year.
“And that is going to be a point, I have no doubt, of enormous discussion.”
It comes down to access, said Rob Oliphant, who co-chaired the committee that wrote the report.
“We want to ensure that Canadians who desire this medical service can get it,” he said.
If a patient’s staying in a hospital that doesn’t provide assisted death, the hospital can bring someone in who will, Oliphant added.
“Frankly, this is a publicly funded health care system. And we want to make sure that every Canadian has equal access.”
Tory MP Gerard Deltell argues hospitals have consciences, too.
“If we respect the conscience of the physician, we should respect also the conscience of the institution.”
That has implications beyond assisted death. If provincial and territorial governments adopt it, it could mean publicly funded hospitals must provide services such as abortion regardless of their religious affiliation.
One key difference, Downie notes, is that patients who need abortions tend to be more ambulatory than people who want help dying.
“So there is more scope for hospitals within a city to say, ‘This one hospital’s not going to provide, and then others will,’” she said.
At the same time, “it’s a very strong statement of principle that religious values inside the mission of an institution that receives public funding should not be able to trump patient access.”
And it’s alarming people who represent religious health workers.
“We were completely shocked by that recommendation that each facility actually provide this service,” said Larry Worthen, head of the Christian Medical Dental Society of Canada.
“It is a clear breach of constitutional protections under the Charter of Rights and Freedoms.”
But do hospitals get protection under the Charter?
“Certainly, we would argue that they do. … The overall culture and ethics of a facility is set by the culture of the facility, by the values of the facility,” Worthen said.
“Religious-based facilities have been part of this country before there was even a country and I think it’s important to respect the values of people and institutions.”
Sandeep Prasad isn’t so sure.
Prasad, executive director of Action Canada for Sexual Health and Rights, argues publicly funded hospitals have no place refusing public services.
“A hospital is an institution, not a human being entitled to specific human rights like the freedom of religious belief,” he said.
For Prasad, the recommendation on hospital obligations regarding assisted death is welcome news.
Prasad admits it would be difficult for provincial governments to require all hospitals to provide certain services. But it’s needed, he said.
“It’s crucial that we start scrutinizing why it is hospitals are not providing services,” he said.
“Every hospital should be offering care that is part of one’s legal entitlements. And the refusal to do that should be met with some sanctions.”
The law itself is complicated.
“I would not be surprised if there ends up being litigation on this, becuase it’s not clearly demarcated,” said McGill University law professor Shauna Van Praagh.
There is some precedent for religious organizations such as schools claiming a collective religious ethos.
But it’s another story if that ethos hampers access, Van Praagh said.
“The individual doctor’s claim is stronger, under the constitution, than a collective claim,” she said.
If a patient can’t easily switch hospitals, she said, and goes to court arguing “this whole institution … is telling me my understanding is not aligned with theirs and because of theirs they wont help me out.’ …
“I’m a little surprised to see something that strong in terms of a recommendation.”
“Our government’s work will support and respect patient choice as well as the rights of health-care professionals, while protecting the vulnerable,” spokesperson Shae Greenfield said in an email.
“We will ensure appropriate measures are in place when the Court’s decision takes effect in June.”
MacFarlane said he wouldn’t be surprised if religious hospitals did challenge such a requirement in court.
“You might see an institution asserting its institutional religious freedom … the question is whether or not they’d win,” he said.
One potential argument, MacFarlane said, could be “if you’re accepting public funding you should be regulated like any other institution that is a public institution.”
Meanwhile, some religious health organizations are telling their members to ignore these recommendations entirely.
“We will not provide the medical service of physician assisted death in our institutions nor will we directly or explicitly refer a patient to receive this same medical procedure,” the Catholic Health Sponsors of Ontario wrote in a statement on its website in December.
The organization’s CEO John Ruetz cited Ontario’s 2006 Local Health System Integration Act, which states that health regions won’t “unjustifiably” ask religious health providers to perform services that contravene their religion.
“This legislation makes it clear that no health care organization will be obligated to provide a health service that is contrary to its religious beliefs.”
It’s too early to say whether his members will take the issue to court, Worthen said.
His organization also opposes the requirement that doctors who don’t want to help patients die refer them to someone who will: He prefers a proposal put forward by Nova Scotia’s College of Physicians and Surgeons in which doctors whose patients want help dying would hand the patient a piece of paper with multiple phone numbers, one of which would connect them to an assisted death hotline.
But he does plan on making his group’s opinion known.
“We will definitely be trying to talk to the officials at the Ministry of Justice as well as the members of the justice committee who will be reviewing the legislation, and we will be indicating our concerns to all members of parliament very shortly.”
With files from Vassy Kapelos and Leslie Whyte in Ottawa