A private member’s bill in Alberta that aims to protect the conscience rights of doctors has reignited the debate about how access to procedures such as abortion and assisted dying should be balanced with the moral beliefs of physicians.
The bill, introduced last week by a backbencher in the governing United Conservative Party, would ensure doctors cannot be compelled to participate in procedures that contravene their beliefs or to make “formal or informal” referrals in such cases or any statements to a patient that they would have moral objections to.
Alberta’s medical regulator says the bill appears to conform with rules already in place in the province, which require doctors to either make a direct referral or to point a patient toward a resource that could provide that information.
However, legal experts, including a former Supreme Court justice consulted by the MLA who tabled the bill, say the proposed legislation likely contradicts an Ontario Court of Appeal ruling from earlier this year, opening up the potential for a renewed legal battle.
The bill was tabled six months after a provincial election in which Jason Kenney, who is now Premier, promised abortion would not be on the agenda if the UCP formed government.
The College of Physicians and Surgeons of Alberta’s standards of practice currently require doctors with moral objections to either refer a patient to a willing physician or direct them to a resource with that information. The college does not specify what that resource should be.
“CPSA believes the bill as drafted is broadly consistent with this standard and meets both the needs of physicians and Albertans,” Andrea Garland, a spokeswoman for the college, said in an e-mail.
Erin Nelson, who teaches health-care law at the University of Alberta, said she disagrees that the college’s current policy would survive if the bill passes as it is currently written. She said the bill’s wording is broad and would give doctors significant leeway to refuse to talk to patients about any procedure they object to.
“I think what we would see immediately if this bill passes is physicians claiming that the college policy needs revision so that it complies with the law,” she said.
“Ultimately, what will happen is that patients’ ability to access health care will be affected.”
The Ontario Court of Appeal released a decision earlier this year that upheld a rule that patients be given an “effective referral” to a willing physician. The case was not appealed to the Supreme Court of Canada.
While the decision is not binding outside Ontario, Prof. Nelson said it’s unlikely that a court in Alberta would reach a different conclusion if it was asked to balance the rights of doctors and patients.
Dan Williams, the MLA behind the bill, released a statement last week that quoted former Supreme Court of Canada justice John Major, who concluded the bill would be constitutional.
Mr. Major agreed that the Alberta bill would contradict the Ontario ruling, though he also argues that the Ontario court got it wrong.
“The compulsion that the Ontario Court of Appeal imposed struck me at the time as being in violation of freedom of religion,” he said in an interview.
“They’re not completely compatible,” he added, referring to the Ontario ruling and the Alberta bill. “ And probably one day, a court will decide.”
Mr. Williams has not responded to interview requests.
Daphne Gilbert, a law professor at the University of Ottawa who has studied the debate about conscience rights, said she believes the bill is “totally unconstitutional.” She said the Ontario ruling struck the right balance between doctors’ and patients’ rights.
Prof Gilbert said the legalization of assisted dying, also through a court ruling, brought that debate to a head. Not only doctors but also entire medical facilities run by religious groups have asserted rights not to perform assisted dying or refer patients to physicians who will.
“We're at a crossroads right now, in terms of faith-influenced medical care,” she said.
“We are headed toward the need to have some clarity on what our publicly funded institutions can do.”
Larry Worthen of the Christian Medical and Dental Association, one of the plaintiffs in the Ontario case, argued that it’s not necessary to force doctors with moral objections to certain procedures to refer patients who will perform them.
“You just can’t ask people just to forget their moral, ethical convictions,” Mr. Worthen said.
“There are already excellent access routes for people to get those procedures, particularly in Alberta. We just don’t see that there’s a reason to force doctors to be complicit.”
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