An
Act to Ensure Protection of Conscience
for Health Care Workers
(Draft Legislation)
Introduction:
This proposed legislation was first
drafted in 1988. It has since been updated to include references to procedures that
were not significant issues at that time (for example: artificial reproduction and
euthanasia).
In its current form, the statute is drafted as a piece of Canadian provincial
legislation. However, with slight changes, it could be adopted as a Canadian federal
statute or incorporated into existing federal legislation. It takes a 'procedure
specific' approach to protection of conscience, illustrating an alternative to more
broadly worded laws suggested by some authors.
The Website Model Statute incorporates a number of provisions some
commentators have deemed important. Readers will find other
approaches to legislative drafting under existing
and proposed protection of
conscience laws.
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Short Title
1. This Act may be cited as
Definitions
2. In this act, "abortion"
a) the inducement or
attempted inducement of the miscarriage of a female person, whether or not she is
pregnant,
b) the
administration of drugs or devices to a female person or the manipulation of a female
person to prevent the implantation of an early human embryo, whether or not conception has
occurred,
c) in the case of a multiple pregnancy, the killing of a human embryo or
foetus in the womb to reduce the number of children to be carried to term;
includes the use
of any sexual or asexual means of bringing about, or attempting to bring
about, the formation of a human embryo, apart from an act of sexual
intercourse, such as artificial insemination and in
vitro fertilization, or human genetic engineering techniques,
including the manipulation of genetic materials, the use of artificial
genetic materials, or any combination thereof.
"capital punishment"
the execution of a sentence of death in
accordance with military law or the law of the place where sentence is
passed or to be carried out;
means the fertilization of a human ovum by human
sperm;
"contraceptive services" includes the provision of drugs, devices or
surgery for the purpose of preventing the fertilization of a human ovum by sexual intercourse;
includes any manipulation or surgical or pharmacological treatment of a human zygote,
embryo or foetus at any time after conception, but does not include treatment which is
intended to be directly therapeutic for the zygote, embryo or foetus itself;
"embryo transfer" includes the removal of a living human zygote, foetus
or embryo from the uterus or location where it was conceived;
"eugenic testing" includes any form of observation or measurement, one
purpose of which may be to identify illness or unwanted characteristics in a human being
or in a human zygote, foetus or embryo, so that the human being may be sterilized or
killed, or the human zygote, foetus or embryo aborted or killed;
means any act or omission, with or without the consent
of the person who is the subject of the act or omission, which
a) is apparently intended to cause the
death of the person, or
b) is apparently intended to accelerate the death of the person,
and includes the
withdrawal or failure to
provide artificial nutrition and hydration or
;
"falsification"
means
a) in the case of research data, the fabrication of research data or
the deliberate introduction of bias or error into research data by any
means, including addition, omission, suppression, misrepresentation,
emphasis, or de-emphasis, during any phase of an experiment, including the
design of the protocol, the material(s) and method(s) used, and the
analysis of the data obtained;
b) in the case of research claims, the fabrication of research claims
or the deliberate introduction of bias or error into research claims by
any means, including addition, omission, suppression, misrepresentation,
emphasis, or de-emphasis involving: research grant applications;
advertisements; computer programs; research committees; proceedings;
findings; reports; publications; conferences; or other medical or research
information.
includes any manipulation or surgical or
pharmacological treatment of a human being for the purpose of research, but does not
include treatment which is intended to be directly therapeutic for that human being;
"inter-species breeding" includes fusing or attempting to fuse human
gametes or genetic material with that of an animal;
"person" includes all juridical persons and all recognizable
institutions, societies, associations, and formal or informal groups of persons, whether
incorporated or not;
"reasons of conscience" includes adherence to
a) religious doctrine or precept, or
b) moral or ethical belief, or
c) philosophical principle
that is understood by the adherent to make
it wrongful for him to participate, directly or indirectly, in the activities referred to
in Section 3.
"tissue trafficking" includes the handling, transfer, sale, barter, or
giving of tissue obtained, directly or indirectly, by means of abortion, artificial
reproduction, embryonic or human experimentation, embryo transfer, eugenic testing,
euthanasia or
inter-species breeding, or the provision of contraceptive services.
means
any act or omission, whether or not it is legal under military law or the
law in force in the place where it occurs, by which
a) pain is deliberately inflicted on a person, or
b) an attempt is made to inflict despair or mental or spiritual anguish
on a person by
i) deprivation of air, food, water, shelter, clothing, hygiene,
privacy, companionship, sensory experience, medical treatment or
religious practice, or
ii) sexual touching or degradation, including seduction and exposure
to
pornographic or obscene materials, or
iii) enforced participation in acts proscribed or thought to be
proscribed by the person's religion, beliefs or moral principles, or
iv) the application of mind or mood altering substances, or
v) the application of extremes of temperature, light, sound, or smell
or the provision of unpalatable food or drink, or
vi) threats to cause death, pain or bodily harm to the person or
another person, or
vii) threats to do any of the above
for the purpose of punishment or personal gratification, to intimidate or
coerce the person or some other person, or to obtain information or a
statement.
General protection
3(1). Every one commits an offence who, by an exercise of authority or by
, compels
to
,
a) in the performance of an abortion,
b) in artificial reproduction, capital punishment, embryonic or human experimentation, embryo transfer,
eugenic testing, euthanasia or inter-species breeding, falsification, tissue trafficking,
torture or the
provision of contraceptive services,
c) in the advertising of the activities referred to in paragraphs (a) or (b), or
d) in the building, operation, maintenance, service or security of a facility where the
activities referred to in paragraphs (a) or (b) take place or will take place, or
e) in the manufacture, advertising or sale of drugs or instruments intended to be used for
the activities referred to in paragraphs (a) or (b), or
f) in the counselling or education of persons in a manner which indicates that the
activities referred to in paragraphs (a) or (b) are morally neutral or acceptable,
when that person has indicated that he
does not wish to participate for reasons of conscience.
3(2) For
greater certainty, in the case of capital punishment and torture,
"participation" includes
a) prior consultation or planning,
b) pronouncing death
c) providing a professional opinion or rendering medical assistance in
order to prolong or facilitate the procedure or make it more effective.
Intimidation of contractors, employees and
members of unions and professional associations
4. Every one commits an offence who, for the purpose of inducing another person or
class of persons to participate, directly or indirectly, in the activities referred to in
Section 3,
a) intimidates or attempts to intimidate
or influence that person or class of persons by threats or suggestions that
i) contracts, employment, advancement,
benefits, pay, or
ii) membership, fellowship or full participation in a trade union or professional
association
may be adversely affected if they do not
so participate,
b) disciplines, suspends or dismisses an employee or contractor, or reduces his pay or
benefits or cancels his contract, or suspends or revokes or adversely affects his
membership, fellowship or full participation in a trade union or professional association,
for the reason that he failed or refused to participate or to agree to participate, directly or indirectly, in the activities
referred to in Section 3.
Intimidation of
5. Every one commits an offence
who
a) suggests that participation in
the activities referred to in Section 3, whether direct or indirect, is a condition of
employment, contract, membership or full participation in a trade union or
professional association, or of admission to a school of medicine or other educational
programme,
b) refuses to employ a person or to admit
him to a trade union, professional association, school of medicine or other educational
programme for the reason that he refused or failed to agree to participate, directly or
indirectly, in the activities referred to in Section 3.
c) refuses to employ a person or to admit
him to a trade union, professional association, school of medicine or other educational
programme for the reason that he refused or failed to answer questions about or to discuss
his willingness to participate, directly or indirectly, in the activities referred to in
Section 3.
d) adversely affects the opportunities of
a person or class of persons to secure employment or admission to, or full participation
in a trade union, professional association, school of medicine or other educational
programme for the reason that
i) he refused or failed to agree to
participate, directly or indirectly, in the activities referred to in Section 3, or
ii) he refused or failed to answer questions about or to discuss his willingness to
participate, directly or indirectly, in the activities referred to in Section 3.
Intimidation of health care
professionals
6. Every one commits an offence
who, for the purpose of inducing a person or class of persons to participate, directly or
indirectly, in the activities referred to in Section 3,
a) suggests that hospital admitting
privileges, full participation in professional associations or trade unions, or other
rights or privileges associated to the practice of medicine or nursing may be adversely
affected if he does not so participate,
b) denies, restricts or revokes hospital
admitting privileges, full participation in professional associations or trade unions, or
other rights or privileges associated to the practice of medicine or nursing for the
reason that he has failed or refused to agree to participate, directly or indirectly, in the activities referred to in
Section 3, or
c) denies, restricts or
revokes hospital admitting privileges, full participation in professional associations or
trade unions, or other rights or privileges associated to the practice of medicine or
nursing for the reason that he refused or failed to answer questions about or to discuss
his willingness to participate, directly or indirectly, in the activities referred to in
Section 3.
d) adversely affects
hospital admitting privileges, full participation in professional associations or trade
unions, or other rights or privileges associated to the practice of medicine or nursing
for the reason that
i) he failed or refused to
agree to participate, directly or indirectly, in the activities referred to in Section 3,
or
ii) he failed or refused to answer questions about or to discuss his willingness to
participate, directly or indirectly, in the activities referred to in Section 3.
7(1) This Act does not apply
when the activities referred to in Section 3 are the principal duties of a position for
which a person was hired or for which an employer is seeking an employee or contractor.
7(2) For the purpose of this section, activities are the principal duties of a
position when position when
a) they have been previously designated in
writing in advertising, contracts, job descriptions, and other instruments referring to
the position, and
b) the activities will or are reasonably expected to
i) comprise more than 50% of the
activities performed by the person holding that position, or
ii) generate more than 50% of the gross revenue for activities performed by the person
holding that position.
7(3)
in this Section shall be construed to suggest
that employers or other persons in authority have a legal right to compel another person
to participate in any activity to which that person has expressed objection for reasons of
conscience.
7(4) A person does not 'protest' within the
meaning of the
a) by asserting objections, based on reasons
of conscience, to activities referred to in Section 3, in order to
avoid participation in such activities, or
b) by expressing objections or disapproval, based on reasons of conscience, to activities
referred to in Section 3, in response to a request for counselling or advice.
Protection Against Negotiated
Exemptions
8(1) No person shall circumvent
this Act by negotiation of contracts or agreements contrary to it.
8(2) All agreements contrary to this Act are of no force or effect.
Penalty
9. Every one who commits an offence against this Act is liable
a) for a first offence, to imprisonment
for 6 months, or to a fine of $1,000.00, or both.
b) for a second offence, to imprisonment for 6 months, or to a fine of $5,000.00, or both.
c) for each subsequent offence, to imprisonment for 6 months and to a fine of $10,000.00.
10. A court that convicts or discharges an accused of an offence
under this Act, shall, at the time sentence is imposed, order the accused to pay to the
victim of the offence an amount by way of satisfaction or compensation for the loss of
wages and benefits which resulted from the commission of the offence.
11. Where a court has not been satisfied beyond reasonable doubt that an offence has
been committed, but is satisfied on the balance of probabilities that an accused engaged
in conduct described in Sections 3, 4, 5, or 6, the court shall not convict the accused
but shall order the accused to pay to the victim of the offence an amount by way of
satisfaction or compensation for the loss of wages and benefits which resulted from the
conduct.
12. Where an amount that is ordered to be paid under
Section 9 or 10 is not paid forthwith, the victim may, by filing the order, enter as a
judgement in the Supreme Court of British Columbia, the amount ordered to be paid, and
that judgement is enforceable against the accused in the same manner as if it were a
judgement rendered against the accused in that court of civil proceedings.
Limitation of
Action
13. No proceedings shall be commenced in respect of acts which are alleged to have
contravened this Act more than 2 years after the date on which the acts are alleged to
have taken place.
Restriction on judicial intervention
14. An order from a court
directed to any person requiring participation in any of the acts
defined in Section 3 shall be deemed not to apply to any person who
objects, for reasons of conscience, to participation in such acts.
15. A person who refuses to participate, directly or indirectly, for reasons of
conscience, in the activities referred to in section 3,
a) shall not be considered negligent,
b) shall not be considered guilty of professional misconduct,
b) does not thereby commit a tort,
and is not liable for any damages
allegedly arising from the refusal.
16. For greater certainty, a cause of action shall not arise, and damages shall not
be awarded, on behalf of any person, based on a claim that, but for a refusal to act based
upon reasons of conscience,
a) a child would not have been conceived,
or
b) a child would have been aborted, or
c) a person would have died.