Ontario Bill 84 has no protection for conscience rights

Last month, a number of legal, medical, and civil rights lobby groups appeared before an Ontario legislative committee in an attempt to persuade legislators to amend Bill 84 to protect the conscience rights of doctors and other medical professionals who refuse to participate in “medical assistance in dying” (MAID).

The Standing Committee on Finance and Economic Affairs heard submissions by the Catholic Civil Rights League (CCRL), the Faith and Freedom Alliance (FFA), and the Christian Legal Fellowship (CLF), among others. But in the Bill as amended and reported to the House on April 12, not one of the amendments requested by these groups was made, nor were any concessions made to the very pressing concerns that these groups raised.

As it stands, the bill provides no legal protection for physicians or other health-care workers who refuse to participate in doctor-assisted suicide or euthanasia. The need for such protection is particularly important in Ontario, since the current policies of the College of Physicians and Surgeons of Ontario (CPSO) stipulate that any physician who refuses to participate directly in intentionally inducing a patient’s death must provide an “effective referral” for any inquiring patient.

The CLF highlighted the way in which the current legislation, combined with the mandates of the CPSO, will inevitably remove relevant moral decision-making entirely from the practice of medicine. This outcome is by no means desirable, not only for doctors, but also for their patients. The CLF stated in its submission, “it is in a patient’s best interest and in the public interest for physicians to act as moral agents, and not as service providers devoid of moral judgement,” and it is not “in the ‘public interest’ to expect patients to receive health care services from professionals or institutions that have been required to abandon their moral convictions in order to provide care.”

This argument was echoed in the statement of Christine Cserti-Gazdewich, a medical doctor and self-described “secular humanist” who spoke before the committee in defence of conscience rights. Cserti-Gazdewich said, “prohibiting dissent and permitting disciplinary actions by licensing colleges will … bake a North Korean-styled moral Darwinism into Ontario. Only those who agree, and those too timid to disagree, comprise what remains.”

The committee also heard a joint submission from the CCRL and the FFA, the main thrust of which was an analytically precise argument centering around the distinction between what it termed “perfective freedom of conscience” and “preservative freedom of conscience.” By the former is meant the freedom to act according to one’s conscience in pursuit of what is good; by the latter, the freedom to refrain from acting in order to avoid what is evil. This latter, passive freedom is in fact the more fundamental — and so in that sense, more important — of the two: for without the freedom to refrain from evil, one cannot even begin to pursue the good. Preservative freedom of conscience, as a primary right, can never be overridden by a claim to the rights of perfective freedom of conscience. The CCRL/FFA therefore concluded, “Limitations of preservative freedom of conscience cannot be justified by an intention to privilege perfective freedom of conscience,” and thus, “a patient’s perfective freedom of conscience cannot be used to trump or undermine a physician’s preservative freedom of conscience.”

These arguments represent only a small sample of those heard by Ontario’s legislators in support of conscience protection. In the face of such an overwhelmingly compelling set of arguments, it is difficult to comprehend how not a single alteration to Bill 84 was made as it touches the rights of conscientious objectors. We may speculate that the analytic subtleties of fine, Scholastic-style distinctions in terms were lost on over-stretched, non-specialist public servants; or, as Cserti-Gazdewich suggested in her address, perhaps legislators were held back by fear of “the awkwardness of hinting at the sanctity of life.” But I think the amended bill’s silence on issues of conscience is most likely a symptom of Canada’s broken, overly partisan political climate, in which loyalty to the party agenda takes precedence over any and all reasoned dialogue seeking common ground in the midst of diversity, and the best policies for all citizens. Legislators perform a charade of reasoned debate and an airing of all views, but the outcome is decided before the debate even begins.

And so, Ontario slips steadily on toward a state in which many medical professionals are faced with the choice between acting in ways that seriously violate their conscience, or ceasing to serve the common good of the people of Ontario in the field of healthcare work. It will only be through continued persistence and creativity that we find professional, legal, and social avenues to support doctors and other healthcare professionals who find themselves at this precarious juncture.

 

Sarah Hogarth Rossiter recently completed her PhD in philosophy at the University of Western Ontario.

 

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