Right to die: Should public hospitals have freedom of religion?

Published by GlobalNews on February 27. Click here to watch the video on their website.

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.

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.

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.

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.

But do hospitals get protection under the Charter?

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.

For Prasad, the recommendation on hospital obligations regarding assisted death is welcome news.

Only one in six hospitals in Canada provides abortions — a proportion that’s actually dropped in this century. In many cases, hospitals refuse to provide the care on religious grounds.

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.

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.

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.’ …

“In that kind of case I would guess the courts would be reluctant to say a collective freedom of religion [is warranted].”
Perhaps a more pointed question, though, is whether any government wants to take on religious hospitals by telling them what services to use public funds to cover.
Ontario Health Minister Eric Hoskins‘ office declined to comment on whether it would require all publicly funded hospitals to provide publicly covered health care.

“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.

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.

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.

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.”