Ontario’s faith-based exemptions allow and mask barriers to medical assistance in dying
With the coming into force of federal legislation permitting medical assistance in dying (MAiD) last June, the provinces and territories faced a challenge: how to reconcile the interests of faith-based healthcare institutions with those of patients.
Most (if not all) faith-based institutions want to refuse to provide MAiD. Some even want to refuse to provide information about MAiD. However, some patients want information and access.
What is to be done then when the interests of all cannot be met?
Unfortunately, through two pieces of legislation, the Ontario government is demonstrating it will privilege the interests of faith-based healthcare institutions at the expense of patients who, by definition, are experiencing enduring and intolerable suffering.
Last month, the Ontario government passed Bill 41, the so-called “Patients First Act.” It should have been called the “Churches First Act” because it puts religious freedom of institutions ahead of patients’ rights.
Under the legislation, neither the local health authority (LHIN) nor the Health Minister may issue an operational or policy directive (such as to provide medical assistance in dying) that “unjustifiably as determined under section 1 of the Canadian Charter of Rights and Freedoms” goes against the religious positions of the organization providing care.
The LHIN’s and Health Minister’s power to issue such directives is constrained even where considered by the LHIN or Minister to be “in the public interest.”
LHINs are local health authorities responsible for planning, funding and integrating local publicly-funded health care across Ontario. Of course, neither a LHIN nor a ministerial directive can unjustifiably violate the Charter of Rights and Freedoms – that goes without saying, which makes the provisions especially bizarre.
Furthermore, the Charter protects multiple rights of the individual, including both religion and conscience. It also protects the right of individuals not to be deprived of their right to life, liberty, and security of the person except in accordance with the principles of fundamental justice. It also protects equality.
And yet the “Patients First Act” mentions only religion and, even then, only the freedom of religion of religious organizations – not the freedom of religion of patients or health care professionals who are willing to provide the service. Why are these provisions so strangely one-sided?
The problem is serious. Because Ontario has a large number of publicly-funded faith-based health care institutions, medical assistance in death could be unavailable to many patients. For some services and in some communities, patients have no option other than such an institution.
Some faith-based institutions are transferring patients who request MAiD to nearby institutions. However, this is less than ideal from the point of view of patients and their families.
Pembroke, Elliot Lake and Mattawa are served by only faith-based hospitals. Even in a city the size of Ottawa, Bruyère Continuing Care, a Catholic institution, runs the largest palliative care facility and is the only facility to provide complex palliative care in the region. It is publicly funded but will not provide medical assistance in dying.
Where will patients turn to get the care they need?
It must be acknowledged that the Health Minister and LHINs are already constrained by the 2006 Local Health Systems Integration Act. But what must then also be emphasized is that provisions in the 2006 Act apply only to directives relating to the integration of health services. The so-called “Patients First Act” expands this to all operational and policy directives, including directives relating to the provision of medical assistance in dying.
In December, the Ontario Government also introduced the “Medical Assistance in Dying Statute Law Amendment Act, 2016.” This Act, if passed as drafted, would shield faith-based institutions from disclosing how they are handling requests for medically assisted death.
This means that patients may have no way to know in advance whether an institution they are considering going to will allow them to access medical assistance in dying.
While Bruyère Continuing Care makes it clear on its website that they do not provide medical assistance in death, that is not true of many other Ontario faith-based institutions.
It will also be difficult to understand the breadth and severity of the barriers patients face when trying to access medical assistance in dying. This will make it more difficult to make evidence-informed policy decisions. As well, plaintiffs will not be able to give judges the evidence they need to determine whether the barriers to access to medical assistance in dying violate the Charter.
Through the “Patients First Act”, the Ontario government has ensured that publicly-funded faith-based institutions can opt out of providing medical assistance in dying. This will profoundly impair access to a legal service wanted by people who are, by definition, experiencing enduring and intolerable suffering.
Through the second piece of legislation, health care institutions in Ontario can wrap their position on medical assistance in dying in absolute secrecy.
These two pieces of legislation, independently and especially together, put faith-based institutions ahead of dying patients. Hardly patients first.
Jocelyn Downie SJD, FRSC, FCAHS is a University Research Professor in the Faculties of Law and Medicine at Dalhousie University. She is also a member of the Dalhousie Health Law Institute.
Michel Bilodeau argues governments shouldn’t force faith-based hospitals to perform medical assistance in dying.