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cpc proposes 'conscience rights' for health workers
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conservative party leader erin o'toole has indicated that his government would "protect the conscience rights" of healthcare workers. lars hagberg / reuters
lars hagberg / reuters
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canada’s conservative party was one of the first to release its policy platform in the lead-up to september’s federal election. the party has a lot of health-related ideas worth analyzing that show up in the section called a detailed plan to secure healthcare. but one policy proposal that has significant repercussions for the healthcare system pops up much later in the document.
under a detailed plan for a freer canada, the party says that if elected, “we will protect the conscience rights of healthcare professionals.”
what exactly does that mean?
conscience rights “are anything that have to do with not wanting to do a procedure or treatment based on your moral principles or on your religious beliefs,” says montreal policy researcher and lawyer souhila baba, who works primarily in health law. “usually it’s around assisted suicide, abortion, things that are rooted in religion, or a moral understanding of the sanctity of life.”
healthing reached out to the conservative party for more context on their conscience rights position, but they have not yet responded to our questions.
medical ‘gatekeeping’ is a problem
the issue isn’t as simple as someone just opting out of one part of their job, says dr. holly andersen, a philosophy professor at simon fraser university whose research involves the philosophy of science. it can also depend on one’s personal interpretation of what conscience rights means, which can prevent patients from getting care — not just from that practitioner, but from anyone at all.
the issue isn’t as simple as someone just opting out of one part of their job, says dr. holly andersen, a philosophy professor at simon fraser university whose research involves the philosophy of science. it can also depend on one’s personal interpretation of what conscience rights means, which can prevent patients from getting care — not just from that practitioner, but from anyone at all.
some catholic practitioners might not want to provide medical assistance in dying (maid) because they might interpret helping someone die as something forbidden by their religion, andersen posits. but “a lot of the interpretations of conscience rights seem to go further than that, where it’s not just that you have the right to decline to be the person who pushes the button,” she explains. “a lot of practitioners interpret it as: ‘i have the right to also not refer you to anyone else willing to do that, and essentially stand in the way so that you are unable to access this from anyone.'”
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in alberta in 2019, a united conservative party mla introduced a private members’ bill, bill 207, that sought to allow doctors that right. currently, healthcare practitioners in the province can opt out of providing services they object to on a moral basis as long as they provide a referral; bill 207 proposed that doctors couldn’t be sued or even disciplined for refusing to perform the service or refer patients to someone who would. the bill was voted down before it could move to debate in the house of commons.
even without that legal protection, though, andersen says canadian doctors have a “gatekeeping” role that means if they don’t want to provide treatment, they can often prevent patients from accessing it.
“patients have to interact with the medical environment in limited ways, including with, say, your primary care physician,” she says. “so when a primary care physician declines to provide certain kinds of expected medical care, it’s a much bigger deal than [a shopkeeper] deciding, ‘oh, we’re not going to stock that brand of toilet paper.'”
many patients “may not have the ability to simply go to some other provider, because they often require a referral to take advantage of other medical resources. and if they are unable to get that referral, they’re essentially just completely blocked.”
conscientious objections will render some controversial treatments harder to access than others, baba says. some religions might take issue with in-vitro fertilization, for instance, but it’s unlikely that a doctor morally opposed to ivf would specialize in fertility treatments. abortion services, on the other hand, are often performed in hospitals by general practitioners, who also perform a wide range of other medical services, she explains. it could be easier for those doctors to opt out.
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“when it comes to abortion, there are different types of political strategies to restrict access,” baba says. “one of them would be this type of protection for conscience rights, and other one is refusing funding to specialized clinics. this conscience rights protection, it’s just another strategy.”
doctors can be left in ‘untenable’ situations
baba says doctors and nurses do sometimes face ethical dilemmas when they feel their duty to treat patients contradicts a patients’ wishes — for instance, in the cases of mirlande cadet and Éloïse dupuis. in 2017, the two women, both jehovah’s witnesses, died of childbirth complications in separate incidents after refusing blood transfusions based on their religious beliefs. (cadet’s husband finally allowed a blood transfusion six hours after her vital signs had dropped; coroner dr. luc malouin said it was impossible to tell if she would have survived had she received the transfusion earlier.)
baba says doctors and nurses do sometimes face ethical dilemmas when they feel their duty to treat patients contradicts a patients’ wishes — for instance, in the cases of mirlande cadet and Éloïse dupuis. in 2017, the two women, both jehovah’s witnesses, died of childbirth complications in separate incidents after refusing blood transfusions based on their religious beliefs. (cadet’s husband finally allowed a blood transfusion six hours after her vital signs had dropped; coroner dr. luc malouin said it was impossible to tell if she would have survived had she received the transfusion earlier.)
in examining the deaths, malouin said the doctors treating the two women were put in an “untenable” situation, cbc news reported. “on the one hand, they have taken the oath to protect and save human life,” he said. “and, on the other hand, they have an obligation to respect their patient’s freedom of choice, even if they know that ultimately that choice will kill them when a simple medical treatment could prevent that death.”
on a day-to-day basis, “nurses and doctors have to make these decisions all the time,” baba says. “it’s a situation that happens a lot more often than we realize.”
‘drafted in a way to inhibit access’
despite some of these complicated ethical issues, baba says it’s worth being skeptical of conscience rights as a political tool.
despite some of these complicated ethical issues, baba says it’s worth being skeptical of conscience rights as a political tool.
“what we’ve seen politically is that it usually comes from a conservative party — in the u.s., it definitely has come from the republican party — and so it’s usually drafted in a way to inhibit access to specific things that the party is opposed to: abortion, for example, or assisted suicide,” baba says.
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in fact, the conservative plan does lay out intentions to roll back some of the maid legislations that were passed in march. it also says it “will not support any legislation to regulate abortion.”
if the tories do form a government, it’s not clear how exactly they would “protect” conscience rights — whether it would be through legislation, an agreement with the provincial medical bodies, or a different route. baba says it would be difficult for a conscience rights bill to survive a challenge to the charter of rights and freedoms.
“the objective has to be incredibly clear, and the objective itself cannot be rooted in the general principles of [political] conservatism or the anti-abortion movement because there are cases that show that canada has accepted abortion as a healthcare procedure,” she says. “i don’t think that currently, in this political climate, it would be accepted.”
andersen says that from a philosophical point of view, it doesn’t really make sense to tell healthcare workers they can decline to offer care.
“if you’re unwilling to perform medical services, then you ought not have joined the field where what you’re doing is providing clinical services,” she says. “especially as primary care physicians — a lot of their role is in referral. i don’t think you have grounds to ever refrain from giving a referral.”
andersen also believes that in the very rare case that someone has a legitimate moral dilemma around their work, possible exemptions should be dealt with using a task force or committee. letting people simply opt out of certain treatment options “is just giving people an avenue to take whatever sort of half-baked biases they have and putting them forward as if they were legitimately thought-out conscience-related reasons,” she says.
allowing for legal protection of “biases” means “the individual medical practitioner is essentially using the structure of canadian medical practice to enforce their own conscience rules,” she says. “and that’s a misuse of the canadian medical practice.”
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