Friday, November 08, 2019

Alberta's Bill 207 (Conscience Rights)

Now that Bill 207 has been tabled in the Alberta Legislature, we can look at the bill and its implications more closely.  What follows here is my personal analysis of this bill and the potential implications for Albertans.  Since it isn't a very long bill (8 sections, 8 pages of legislation), I'm going to go through it one piece at a time.

I will foreshadow my comments with a general statement that this bill is extremely broad in its wording, and that has significant implications for Albertans accessing health care.

Section 1

Section 1 is basically a bunch of legal terminology - a lexical guide to the terms used in the bill.  There's not much in here to discuss, although there appear to be a few important omissions that need to be considered later on.

Section 2

Section 2 is where the rubber hits the road.

Note that I have highlighted two paragraphs:  2(1)(a) and 2(1)(e).  These are important because they lay out a specific set of goals for the legislation.  It is clear from these, that the idea of the legislation is to create specific exemptions for medical care providers who choose to deny patients access to treatment based on their personal religious convictions.  

Pay particular attention to paragraph 2(1)(e), which appears to suggest that the legislation attempts to restrict access to any form of redress for a denial of treatment.  

Section 3

Once we move past Section 2, we get into the body of the legislation that actually implements the goals as laid out in Section 2.  Section 3 sets out a very broad right for practitioners to deny treatment based on conscientious objections. 

This is extremely vague, and makes no exceptions for circumstances.  Basically, with the way this is worded, a health care provider can deny treatment at any time on the basis of their "conscientious objections" (whatever that might happen to be).

There are many potential dangers here.  For example, in an emergency situation, a caregiver may decide not to provide treatment to a patient "on conscience grounds".

If, for a moment, you think "nah - that will never happen", I would like to bring to your attention the case of Tyra Hunter.  While the situation is unique in its context, it is not a particularly large leap to suspect that many of the backers of Bill 207 would quite happily join with the Paramedics and other practitioners who provided her with wholly inadequate care, only to declare that "providing treatment violated their "conscience rights" under Bill 207.

Section 4

Sections 4 and 5 act to restrict the actions of provincial regulatory bodies quite a lot.

Section 4 uses language that is clearly designed to undermine the common ethical obligation for a provider to make a referral to another provider or service if they feel it would violate their "conscience rights".  

This is profoundly worrisome because it means that a provider can stymie a patient's autonomy in seeking treatment.  It is based on the often expressed "worry" by anti-abortion practitioners that even in providing a referral they are "complicit" in the act. 

Section 5

Like Section 4, Section 5 is very troubling because of the restrictions it imposes on the regulating colleges.  

A more ham-fisted approach to such things is hard for me to imagine.  This entire section basically orders regulating colleges not to investigate any case which involves a denial of treatment the moment that "conscience rights" are asserted.  This is incredibly dangerous because it takes away any right on the part of patients to seek redress and to test the validity of "conscientious objection" claims. 

Section 6

Having read sections 4 and 5, Section 6 is almost predictable.  Again, it creates a blanket exemption for the exercise of "conscience rights" such that a college cannot find that the denial of treatment is "unprofessional conduct".  This seems almost unnecessary given the blanket prohibition on investigation stipulated in Section 5.  

Section 7

Section 7 concerns me.  If I am reading this correctly, it appears to be designed to prohibit other civil actions to be taken (such as suing in civil court) over these matters.  I'm fairly certain that the language "No action" refers to lawsuits or other legal avenues of seeking redress. 

Closing Analysis

Bill 207 fails to recognize that the rights described in the Canadian Charter of Rights and Freedoms (The Charter) exist in a state of tension with each other. Significant aspects of this law are in conflict with aspects of the Charter such as Section 15 rights.  The overly broad wording of Section 3 is such that "conscientious objection" can be raised by a healthcare professional at any time, even when life and limb are at risk.  

This law is profoundly flawed, not only in being overly broad in its wording, but also in the restrictions it seeks to put in place to "protect" those who would exercise their "conscience rights" in a discriminatory and potentially capricious manner.  

By removing any avenues of legal redress, this legislation effectively places "conscience rights" at the top of a hierarchy of rights, and denies those affected equal benefit of the law as set out in S15 of the Charter. 

In creating an exemption from providing a meaningful referral, this legislation potentially violates principles of autonomy set out in Section 7 of The Charter. 

If I have interpreted it correctly, it is in direct conflict with the fundamental principle of rights law, in that it fails entirely to acknowledge that the rights in The Charter S2(a) it seeks to protect exist in tension with rights held universally in sections 7 and 15 by denying those denied treatment access to any form of redress or review of the situation.  

Further, Section 7 of Bill 207 appears to be in direct conflict with S24 of The Charter, which guarantees the right of redress.  

This is an extremely dangerous piece of legislation that stands to limit the legal rights of those denied health care by providers on the basis of "conscience rights".  Further, because of the way it is worded, it could be used by unethical health care professionals to stymie regulatory college investigations into their practices, placing patients at significant risk of future harms. 

*Caveat:  This entire analysis is strictly that of a layman.  I am not a lawyer, much less an expert in Canadian Constitutional Law.  It is based solely on my own reading of our laws, and what pieces of relevant case law I have become acquainted with in my travels.  Consult with legal counsel should you find yourself in a situation where you are affected by this law. 

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