In the spirit of reconciliation and cultural safety, our health laws must change

The news reports have been painful and tragic: 215 unmarked graves in Kamloops; 751 unmarked graves at the Marieval residential school in Saskatchewan; 160 unmarked graves at Kuper Island Indian Industrial School located on Penelakut Island, B.C.

As health-care staff, we grieve for the tremendous losses experienced by members of our Indigenous communities. Losses of precious lives as well as language and culture. For survivors of the residential schools, the trauma has taken a toll on their physical and emotional well-being. Trauma we need to be aware of and accommodate when Indigenous people require health care.

As health-care professionals, our response to the history and tragedies experienced by our Indigenous peoples may feel overwhelming. But I believe that most of us in health care want to make a difference in the healing and reconciliation that is necessary.

The best starting point is to review the recommendations of the Truth and Reconciliation Commission. In its Call to Action, there are recommendations that address health. We must become familiar with those recommendations, share them with those in our spheres of influence. If, in partnership with Indigenous people, we meaningfully begin addressing the recommendations, we will be healers who provide safe and inclusive care that is culturally safe for all involved. Recommendations such as recognizing the value of Aboriginal healing practices and establishing measurable goals to identify and close the gaps in health outcomes between Aboriginal and non-Aboriginal communities.

We should also view the videos and workbook recently released by the Canadian Medical Association (CMA), The Unforgotten. It is in this context that we are rightfully being asked to participate in fulfilling reconciliation with our Indigenous peoples, acknowledge racism and meaningfully integrate diversity and inclusion into our health care.

To be more inclusive and address injustices, health laws that affect our practice need to adapt to current knowledge and societal changes. Specifically, Ontario’s Health Care Consent Act, (HCCA) has remained stagnant since its implementation in the 1990s. A law built on the foundation of white, Anglo-European philosophers who placed a high value on autonomy does not reflect the reality of most people’s lived experience in which decisions are made in relationship with others.

Changing laws to ensure culturally safe practices may seem like a daunting task but involving policy-makers, teachers of health-care professionals, health-care executives, stewards of accreditation standards and members of the law profession will ensure that cultural safety is a priority. As we seek to influence policies, curricula and laws, we need to ensure that the right people and voices are not only present but heard.

While we wait for laws to be developed and/or for amendments to current laws, we need to advocate for a nuanced response to health laws and accommodate culturally safe practices even if it departs from our training in the HCCA. 

There are several areas of the HCCA that can be critiqued, beginning with the concept of who makes health-care decisions. The law is predicated on a view of autonomous, capable decision-makers. Yet, for many people, decision-making is a collective or relational process taking into consideration the family and community context. Also, when needing an immediate treatment decision, the patient may want to include others who are not family but who are trusted to provide support and advocacy, especially in situations where a person may feel vulnerable due to race, power imbalances and prejudices.

In 2020, if Joyce Echaquan would have had staff that made cultural safety a priority and had an advocate for her safety, she would have had a different outcome than one remembered for the abuse she suffered while dying.

Another specific domain of the HCCA that is in need of a rehaul is in the hierarchy of substitute decision-makers. As presently written, taught and practiced, it serves as a barrier to cultural safety. I had the pleasure of completing learning modules from the Canadian Virtual Hospice on the topic of cultural safety with our First Nations peoples in the context of palliative care. I highly recommend this learning opportunity.

From my perspective, the modules illustrate how health laws with a hierarchy of decision-makers do not include opportunities for expanded participation for people like chiefs, elders, healers and others the patients may want with them on their health-care journeys. Because of these historical injustices, allowing extended participation in care and decision-making should be given high priority.

Health-care professionals have been taught that we should work with the patient if capable and only with the substitute decision-maker indicated in the approved hierarchy when the person is incapable. For health-care practitioners who aspire to culturally sensitive practice, this can be extremely uncomfortable and unsatisfying. For persons needing care, we are putting them into vulnerable situations. While recognizing that it is and ought to be patients who decide what is culturally safe for them, moving beyond the HCCA’s hierarchy of decision-makers and engaging differently with those we care for will allow for quality care that is safe and satisfying for all.

We use catch phrases like “patient or person-centred care” but is it patient-centred care if current health laws create barriers to providing culturally safe practices? In the spirit of reconciliation and to address racial injustice in health care, we need to be advocates to amend current health laws to create culturally safe environments.

And until those laws are changed, shouldn’t we nuance our teaching and interpretation of health laws to be culturally safe and inclusive until they are? 

An earlier version of this article appeared in Hospital News.