Although medical assistance in dying (MAiD) is legal in Canada, there are still pain points when it comes to clinicians and institutions that object to the practice due to religious or conscientious reasons. A prevalent issue, highlighted in a lecture series hosted by Lakehead University, is the forced transfer of patients who want to access MAiD while in an institution that does not permit the procedure within its walls.
“I believe we have the best MAiD system in the world,” said Jocelyn Downie, university research professor in the Faculties of Law and Medicine at Dalhousie University.
“We have learned from those who have gone before. We have taken the best and left the worst behind, and we have a system we can really be very proud of. That said, I think forced transfers are a blight on this system,” she added, stressing that forced transfers “cause an enormous amount of suffering,” “breach people’s Charter rights” and are “indefensible.”
Jocelyn Downie, Dalhousie University
“We need to let everybody know about the right to refer, so clinicians know that they don’t actually have to provide MAiD. Nobody is forced to provide MAiD in Canada,” she stressed, noting that it’s “also critically important for patients to understand that they have a right to effective referral if their clinician is a conscientious objector.”
“And they [patients] have a right to remain, and receive MAiD, where they are even if the institution is a contientious objector,” she emphasized.
Downie tackled the issue of what happens when freedom of conscience and freedom of religion meet MAiD in the Harold G. Fox Distinguished Speaker Series hosted virtually by Lakehead University on Jan. 25.
Downie explained that the issue is that “some people want to have MAiD, some clinicians want to provide MAiD, but some clinicians do not want to participate in MAiD and some institutions do not want to allow MAiD within their walls.”
“So, you have a mutual incompatibility of desires, values, beliefs. You have patients versus objecting clinicians, willing clinicians versus objecting clinicians, patients versus objecting institutions and willing clinicians versus objecting institutions,” she noted, emphasizing that patients are suffering because they’re unable to access MAiD at all or they’re forced to do so through painful means (i.e. forced transfers).
She also noted that there are potential harms to objecting clinicians as well who have “a fear of, an anxiety about being forced to make a choice between violating” their religious or conscientious beliefs and “risking professional discipline.” There is also “moral distress that comes from being forced to make that choice.”
“Some fear that they will be forced to leave a particular field of medicine, or leave the province they’re in, or leave medicine altogether if they’re compelled to participate in the provision of MAiD,” she added.
Downie emphasized that the “problem is significant” as there are “a number of objecting religious institutions,” as well as objecting palliative care units, or hospices, and “often times these are the only sites for specialized care, or they are the only health-care institution for miles and miles.”
She highlighted that clinicians “have a professional obligation, a legal obligation, to inform patients of all potential options available to them.”
“The fundamentals of informed consent law are [such] that when I’m trying to get consent for a particular intervention or a plan of action, I must disclose to the patient all options that are within the realm of being available to the person, and MAiD is a legal option,” she added.
In Ontario, she noted, clinicians “clearly have a duty of effective referral.”
“The College of Physicians and Surgeons of Ontario (CPSO) has a practice standard that says where a physician declines to provide MAiD for reasons of conscience or religion, the physician must not abandon the patient. An effective referral must be provided. An effective referral means a referral made in good faith to a non-objecting, available and accessible physician, or nurse practitioner, or agency. And the referral must be made in a timely manner to allow the patient to access medical assistance in dying,” she said, adding that patients “must not be exposed to adverse clinical outcomes due to delayed referrals.”
She noted that the CPSO’s policy was challenged in Christian Medical and Dental Society of Canada v. College of Physicians and Surgeons of Ontario, 2019 ONCA 393. The society argued the policy was a breach of s. 2 Charter rights.
“The Ontario Court of Appeal, however, upheld the policy,” she said, noting that the court ruled there was “no breach of the equality rights of physicians.”
The court determined that “there was a breach of the freedom of religion of physicians, but it was demonstrably justified in a free and democratic society. This is the test for state action, if it breaches a Charter right it is only allowed to continue to exist if it’s demonstrably justified in a free and democratic society,” she added, emphasizing that the court “balanced the rights of the physicians against the rights of vulnerable patients, and they found the rights of vulnerable patients won out and required the policy.”
She said that part of the decision “foreshadows what will happen in the context of institutions” who object to MAiD.
Downie explained that the matter in regard to institutions is “less settled in law,” but “the best arguments lead to the conclusion that forced transfers by publicly funded institutions are not permissible.”
She noted that the Patients First Act “says a directive from a local health authority shall not unjustifiably, as determined under section 1 of the Canadian Charter of Rights and Freedoms, require a health service provider that is a religious organization to provide a service that is contrary to the religion related to the organization.” She also noted that there’s a “similar provision saying that the minister can’t direct the board of a hospital to provide a service that is contrary to the religion that is related to the organization.”
“This Act says this is the case even when it’s in the public interest to issue a directive,” she added, noting however that, when it comes to Charter claims, she would “argue that there are no section 2 Charter rights for institutions.”
Downie theorized that if the Supreme Court of Canada were presented with a case on this matter, it would rule that there are no s. 2 rights for institutions.
“Now, what if I’m wrong and they [the Supreme Court] say, ‘yes, there are freedom of religion Charter rights for institutions? I would then argue that hospitals can’t actually claim that right because unlike, for instance, a school which is set up for the purpose of providing a particular religious education, hospitals aren’t set up for a religious purpose and that would be a part of any test that the court would apply if it were confronted with a claim of freedom of religion,” she explained,
“It’s really important to note that the faith-based institutions in Canada have a religious history, but they are not set up for a religious purpose. They are set up for the purpose of delivering health care, for research,” she stressed, noting that this is apparent when an institution’s mission statement is examined.
“But even if I’m wrong about that,” she added, “I still think an institution would lose because you’re going to get the balancing that we saw in the case involving the clinicians [and the CPSO]. You’re going to have the rights of the institutions held up against the right to life, the right to liberty and security of the person, the freedom of conscience of the patient, the right of equality of the patients.”
Downie noted that all of the rights “among vulnerable patients will again outweigh the freedom of conscience, the freedom of religion claim” brought by institutions.
She also highlighted that the Patients First Act includes the word “unjustifiably” and she would argue requiring MAiD is justifiable.
“I don’t think it would be a breach of the Act to direct an institution to provide or allow MAiD to be provided within its walls,” she added, noting that a “reasonable conclusion is that publicly funded institutions have an obligation to allow MAiD within their walls and local health authorities, networks, or a minister of health can, in fact, issue directives against forced transfers and tell institutions that they must allow MAiD to be provided within their walls.”
The next question she highlighted was “how can we get practice to reflect the law and reflect ethics?”
Some options she considered were challenging a hospital’s policy on forced transfers in court, “mobilize, in Ontario, to get the legislative assembly to make allowing MAiD a condition of public funding or to enforce” its “existing laws,” or “mobilize to persuade publicly funded institutions to allow MAiD within their walls.”
According to Statistics Canada report released Jan. 10, the “number of medically assisted deaths in Canada has been increasing steadily since the legislation was introduced.”
“In 2019, there were 5,425 medically assisted deaths in Canada, accounting for 1.9 per cent of all deaths. In 2020, this increased to 7,383 deaths (2.4 per cent of all deaths in Canada), representing a 36.0 per cent increase in the number of MAID recipients from 2019 to 2020,” the report explained.
According to the report, cancer was “listed as an underlying medical condition for 67.5 per cent of all written requests for MAID in 2019 and 2020, regardless of the request outcome.”
“Cardiovascular (12.4 per cent) and chronic respiratory (11.2 per cent) conditions form the second and third largest groups of medical conditions for which applicants sought MAID across all request outcomes,” the report added.
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