We lawyers are much like hoarders – but in a non-pathological sense, I hope. We relentlessly collect other peoples’ life experiences, call them “precedents”, categorize them, and file them away for dim future purposes. Most of the precedents we obsessively collect are useless. Ever wonder what’s in those long, dusty rows of drab books in the background of TV legal dramas? Precedents, arduously assembled, almost never read.
But every so often, precedents are a godsend that help solve thorny dilemmas with consistency and wisdom. And so it is with the tricky question of whether a doctor can withhold medical treatment based on religious beliefs. Earlier cases from our highest courts shed light on how the courts would resolve this dilemma.
Here is what a court would do.
First the court would ask, is the doctor’s religious belief sincerely held? If not, the patient must receive treatment, without regard to the so-called religious objection. But if the religious belief is sincerely held, the court will not question the wisdom or even the rationality of that belief. Freedom of religion in Canada is very strong: an increasingly important protection as secularists develop a superiority complex. We have the right to religious beliefs most others think nutty as long as those beliefs do not cause anyone serious harm.
So if the religious belief is sincerely held, then the court would ask – does the doctor’s exercise of that belief by withholding treatment harm the patient? Our Charter of Rights specifically protects freedom of religion, but does not specifically protect a right to health care. So does the religious doctor have more freedom to refuse treatment than a patient has to demand treatment? A debateable point, but I say, not really. The Charter gives us all a general right to “life, liberty and security of the person.” From those general words, the court would reason that a doctor-patient relationship is very important to our well-being, and in that context, religious beliefs cannot be used to harm patients.
If the doctor’s religious belief is sincerely held, and there is some potential harm to the patient from refusing treatment, we arrive at the crux question: how do we balance those two competing values, which are very important and also very different? Here the courts are forced to do what the rest of us take great pains to avoid: compare apples and oranges.
Perhaps not surprisingly, when it comes to this crux question, the courts will suddenly become quite cautious. Grand pronouncements, and ringing endorsements of one side or the other, will be notably absent. What will take their place are timid, case-by-case baby-steps, driven largely by the particular facts before the court. How great is the harm to the patient? How easy is it to access another doctor to avoid the harm? How great is the intrusion into the doctor’s religious liberty? What has the doctor done to support the patient in getting care elsewhere? These and other circumstances particular to the case at hand will drive the court’s ultimate answer. And often what the court says will look a heck of a lot like someone talking out of both sides of their mouth.
So, to the inevitable disappointment of those seeking definitive guidance, the court’s ultimate answer will probably be clear as mud, at least where urgent lifesaving care is not necessary.
But in this apparent lack of clarity, this timid, incremental decision making, there is deeper wisdom at work. And to understand that wisdom we must go back to those long, dusty rows of precedents, meticulously hoarded and mostly forgotten. Because if we first amass, over time, a respectable collection of these case-by-case decisions, and then take a step back to view them collectively – the fancy pants word is meta-analysis – trends will inevitably emerge. And it is in those broader trends that we will find guidance on how best to strike the difficult and delicate balance; and more importantly, how to think fairly about striking the right balance when novel circumstances arise.
This sort of cautious, incremental decision making has the drawback of being unclear, perhaps even unhelpful in the short term. But it has the advantages of being prudent, evidence based, non-ideological, and capable of responsible and minimally disruptive adjustment over time as our understanding evolves. So it is just the sort of decision making we need when courts are called upon to mediate a clash of two values as important, and as different, as religious freedom and patient health.
David Butt is a criminal lawyer. He has frequently appeared in the Supreme Court on rights and freedoms cases, including the recent case of a Muslim woman seeking to wear a veil in court.
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