Medically assisted dying: What happens when religious and individual rights conflict?

Lawyer Allison Fenske explains how Canadian law works, and how the courts strive to balance competing rights

CBC News

A Winnipeg man’s struggle to be assessed for a medically assisted death while he lives at a faith-based hospital has some questioning how we balance personal and religious rights in Canada.

“I want to die and nobody should come in the way of my deciding how to go about it,” Cheppudira Gopalkrishna, 88, said on Saturday.

However, because Gopalkrishna lives at a faith-based hospital that objects to medical assistance in dying, he has struggled to be assessed by Manitoba’s MAID team under provincial guidelines regulating such deaths. . . [Full text]

 

Contraceptive Coverage and the Balance Between Conscience and Access

Ronit Y. Stahl,PhD; Holly Fernandez Lynch, JD, MBE

When the Obama administration included contraception in the essential benefits package to be covered by employer-sponsored health insurance plans under the Affordable Care Act, it sought to preserve access for women while addressing the concerns of employers with religious objections. Although the accommodations and exemptions were not enough for some employers, balance was the ultimate goal. This also was reflected in Zubik v Burwell, the Supreme Court’s most recent decision on the matter; on May 16, 2016, the justices remanded the litigants to the lower court so they could be afforded the opportunity to reach a compromise between religious exercise and seamless contraceptive coverage. No further compromise was forthcoming.

Now the Trump administration has rejected balance as a worthwhile goal.1 Its new contraceptive coverage rules, released on October 6, 2017, prioritize conscientious objection over access.2,3 The rules take effect immediately, and new legal challenges, this time on behalf of patients rather than objecting employers, have already begun.4 The new rules preserve the default requirement that employers must include free access to contraceptives as part of their insurance plans. However, the rules now exempt employers with religious or moral objections to contraceptives, without requiring any alternative approaches to ensure that beneficiaries can obtain contraceptives at no cost.2,3
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Stahl RY, Lynch HF. Contraceptive Coverage and the Balance Between Conscience and Access. JAMA. Published online October 19, 2017. doi:10.1001/jama.2017.17086

Victoria, Australia: Voluntary Assisted Dying Bill 2017

Comment

Sean Murphy*

euthanasia and assisted suicide bill introduced in the Parliament of Victoria, Australia, includes several provisions that pertain to legal protection of freedom of conscience.  Concerning these:

  • Freedom of conscience provisions concern only individual practitioners, not health care facilities.  Freedom of conscience presumably includes acting upon moral or ethical beliefs grounded in religious teaching.
  • Statements of principles that require encouragement and promotion of an individual “preferences and values,” that people should be “supported” in conversations about treatment and care and “shown respect” for their beliefs, etc. can be interpreted to require affirmation of moral or ethical choices.
    • While the principles may have no direct legal effect, they could be cited by professional regulatory authorities against those who refuse to encourage, promote, or affirm the acceptability of euthanasia and assisted suicide.
  • Registered medical practitioner is not defined, but all would be encompassed by the definition of health care practitioner.
  • All health care practitioners are protected by Section 7.
  • Section 7(b) allows for refusal to participate in the request and assessment process and Section 7(c) protects refusal to be present when lethal medication is administered, but Section 7
    • does not include protection for refusal to participate in the administration of lethal medication, by, for example, inserting an IV line in advance, or by other means
    • does not include protection for refusal to participate in dispensing lethal medication
  • “Participate” in Section 7(b) is broad enough to encompass referral.  However, the bill would be improved by providing protection against coerced indirect participation in administering or dispensing lethal medication.
  • The bill does not require falsification of death certificates, but does require the falsification of the cause of death in the registration of deaths.  The bill includes no protection for a registrar who, for reasons of conscience, is unwilling to falsify a registry entry.

Symposium: Conscience, conditions, and access to civil society

SCOTUSblog

Richard Garnett*

It is striking how easy it has become for a person to stumble into the status of a symbol – or, these days, a viral meme. Jack Phillips is, or was until fairly recently, a skilled cake artist with a small business, Masterpiece Cakeshop, in suburban Denver. Today, he is a litigant in the Supreme Court of the United States and regarded by many as embodying the tension – increasingly, the conflict – between religious conscience and equality. . . Can he be required, though – should he be required, is it necessary for him to be required – to say something he thinks is not true, to disavow what he believes or to act expressively in violation of his conscience? . . . [Full text]

The great divide where religious beliefs and the law meet

Faith is accommodated In Australia, but there is piecemeal protection for religious freedom.

The Conversation

Michael Quinlan*

Australia is a multi-faith society. The 2016 Census shows that, while the mix of beliefs has changed over the years, Australia remains a pretty religious place.

In the last census, nearly 70% of Australians self-identified as religious. The number of Australians who have self-identified as Christian in the census has fallen from 88.2% in 1966 to 52.1% in 2016.

The number of Australians identifying as being of another religion has grown from 0.8% to 8.2%, with Islam (2.6%), Buddhism (2.4%) and Hinduism (1.9%) being the largest non-Christian faiths.

The number who self-identified in the category of “no religion” has grown from 0.8% to 30.1%. This category includes having secular beliefs, other spiritual beliefs or having no religion. This makes it hard to be sure what these Australians believe. . . [Full text]

New Zealand Attorney General apparently confused on issue of referral for euthanasia

Sean Murphy*

Chris Finlayson, the Attorney General of New Zealand, has issued a report on a euthanasia bill that has been introduced by Member of Parliament David Seymour, the leader and only sitting member of ACT New Zealand.

This bill includes protection of conscience provisions that were considered by Mr. Finlayson in his report (paragraphs 62-65).  The Attorney General stated that the provisions require an objecting medical practitioner to refer a patient to another physician for euthanasia, and acknowledged that this infringed freedom of conscience guaranteed by New Zealand’s Bill of Rights.  However, he believed this to be consistent with the Bill of Rights:

I consider that the limit is justified for the effective functioning of the regime for assisted dying created by the Bill.  In particular, I consider that the requirement to identify another medical practitioner is necessary to meet the objective of the Bill and is the most minimal impairment of the right possible.(para. 64)

The Attorney General appears to be confused on this point.

In fact, Section 7(2) of the bill requires only that the patient be told that he may contact the “SCENZ Group” (euthanasia coordination/facilitation service) to obtain the name of a euthanasia practitioner or physician willing to assist in the process.  It is up to the patient to initiate contact with the SCENZ Group, and the bill does not require a physician to assist the patient to do so.  This does not amount to referral to a euthanasia practitioner.

The distinction is important because physicians who object to euthanasia for reasons of conscience often refuse to refer patients for the procedure on the grounds that doing so would make them parties to homicide.  This issue is the focus of an important constitutional challenge in Canada, where the College of Physicians and Surgeons of Ontario is attempting to compel unwilling physicians to make effective referrals for euthanasia and assisted suicide.

Understanding Freedom of Conscience

Policy Options

Brian Bird*

The year 2017 marks the 150th anniversary since Confederation and the 35th anniversary of the Canadian Charter of Rights and Freedoms. By virtue of a court case in Ontario that might go all the way up to the Supreme Court of Canada, 2017 may also be the year when freedom of conscience — until now a dormant Charter freedom — is brought to life.

In June, Ontario’s Divisional Court heard arguments in a case that challenges a policy in Ontario obliging physicians to provide an effective referral if they conscientiously object to performing a medical procedure. An effective referral means that the objecting physician must promptly direct the patient to a physician who will perform the procedure. In May, two of the lawyers representing the side that is challenging the policy outlined their position in Policy Options. In essence, they argue that the policy unduly infringes the freedom of conscience and religion of physicians who refuse on the basis of those Charter grounds to participate in medical procedures. . . [Full text]

 

How GPhC’s religious standards compare with doctors

Lawyer Noel Wardle explains the impact and context of the controversial standards for pharmacists

C+D

Annabelle Collins

All pharmacists will be aware of standard 3.4 in the General Pharmaceutical Council’s (GPhC) previous standards of conduct, ethics and performance – often referred to as the “conscience clause”. This clause gave pharmacists an opt-out for providing services and medicines that are contrary to their “religious and moral beliefs”.

However, the regulator adopted new standards in May – called the ‘standards for pharmacy professionals’ – and pharmacists and employers alike need to think about the implications. . . [Full text]

 

When doctors say No

A law professor defends physicians’ right to conscientious objection

MercatorNet

Michael Quinlan*

As abortion, euthanasia and other controversial procedures become more widespread, conscientious objection for healthcare workers is becoming a flashpoint for controversy throughout the Western world. Some doctors and ethicists have argued that conscientious objection itself is unethical because doctors are required to fulfil any legal request that their patients make.

MercatorNet interviewed Professor Michael Quinlan, dean of the law school at the Sydney campus of the University of Notre Dame Australia, about this contentious issue. He has just published an article on the situation in Australian jurisdictions. [Full text]

Physicians, conscience, and assisted dying

By requiring that physicians make referrals for assisted dying, Ontario is forcing them to leave medicine or abandon their ethical framework.

Policy Options

Deina Warren,* Derek Ross*

Of all the jurisdictions worldwide that permit some form of assisted suicide, Ontario stands alone in mandating that physicians participate in it. . . [C]ompelling physicians to participate in MAID results in the state deciding what everyone should believe; and second, it undermines physicians’ moral integrity, a foundational component of medical ethics and principled health care. . . [Full text]