An Act to Ensure Protection of Conscience in Health Care

(Model of a hybrid protection of conscience law)

PREAMBLE

WHEREAS freedom of conscience is a fundamental freedom in any liberal, democratic society professing pluralism and tolerance and is recognized in international law and conventions;

WHEREAS the exercise of freedom of conscience is not merely a manifestation of personal preference, prejudice or feeling;

WHEREAS health care personnel have a single conscience that informs both personal and professional judgement, and which must be applied in their daily work;

WHEREAS denying freedom of conscience to health care personnel reduces them to mere functionaries of the state, patient or legal system and prevents the conscientiously informed exercise of professional judgement that is essential in their daily work;

WHEREAS the exercise of professional judgement informed by conscience must translate into the freedom not to participate in practices or activities forbidden - expressly or by implication - by sincerely and deeply held moral or ethical beliefs;

WHEREAS the right of persons to non-discriminatory access to lawful services can be accommodated by facilitating access to the services in a manner that does not require health care personnel to do what they believe to be wrong;

[the following law is enacted]

PART I

1.    Short Title

This Act may be cited as The Protection of Conscience Act.

2.    Interpretation

In this Act,

"contested service" means a service in which health care personnel are asked to participate, to which a person objects for reasons of conscience;

"designated class of services" means a class of service defined in Part III;

"employee" includes a manager, supervisor or contractor;

"employer" includes a manager, supervisor or party to a contract for the delivery of services;

"health care personnel" includes physicians, pharmacists, nurses, midwives and any person providing medical, pharmacological or nursing treatment or health care;

"human individual" includes a human zygote, embryo, foetus and human individuals who have been born, whether or not they are recognized by law as human beings or human persons;

"participation" includes

i) prior consultation or planning;

ii) providing a professional opinion or rendering assistance in order to facilitate the service or make it more effective;

iii) recommendation or promotion, collaboration, or facilitation by referral or other means;

iv) counselling or education of persons in a manner suggesting that a service is morally neutral or acceptable;

v) conduct that would make an individual a party to an offence or civilly liable if a service were a criminal offence or tort;

vi) providing service to which a person objects for reasons of conscience.

"patient" includes a lawfully designated substitute medical decision-maker;

"person" includes a juridical person or juridical persons acting collectively in an identifiable institution, society, association or group, whether incorporated or not;

"reasons of conscience" means sincere 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 to participate in a service.

"service" includes interventions, treatments, procedures, services and activities;

PART II

OBLIGATIONS OF HEALTH CARE PERSONNEL

3.    Notice to employers

3(1)    Health care personnel must give reasonable notice to employers of religious, ethical or other conscientious convictions that influence their recommendations or practice or prevent them from participating in a service that is likely to be requested of them so that employers can accommodate them.

3(2)    Notice is reasonable if it is given

a) at the time health care personnel become employees; or

b) having become an employee, as soon as practicable after health care personnel first become aware that a conflict of conscience may arise.

4.    Notice to patients

4(1)    Health care personnel primarily responsible for management of patient care must give reasonable notice to patients of religious, ethical or other conscientious convictions that influence their recommendations or practice or prevent them from participating in a service that is likely to be requested of them so that patients may, if they wish, consult or seek services from other health care personnel.

4(2)    Notice is reasonable if it is given

a) before or at the time health care personnel assume primary responsibility for management of a patient's care; or

b) as soon as practicable after health care personnel who have assumed primary responsibility for management of a patient's care first become aware that a conflict of conscience may arise.

5.    Providing information to patients

5(1)    Health care personnel primarily responsible for management of patient care must provide patients with sufficient and timely information to make them aware of relevant services so that they can make informed decisions about accepting or refusing treatment or care.

5(2)    For the purpose of this section:

a) Sufficient information means diagnosis, prognosis and a balanced explanation of the benefits, burdens and risks associated with each service.

b) Information is timely if it is provided so as to enable interventions that are most likely to cure or mitigate the patient's medical condition, prevent it from deteriorating further, or avoid interventions involving greater burdens or risks to the patient.

c) Relevant services include all legal and clinically appropriate services that may have a therapeutic benefit for the patient, whether or not they are publicly funded, including the option of no services or services not recommended by health care personnel.

5(3)    Health care personnel who are unable or unwilling to comply with this section must promptly arrange for a patient to be seen by other health care personnel who can do so.

6.    Exercise of freedom of conscience

6(1)    In exercising freedom of conscience, health care personnel must adhere to the requirements of Sections 4 and 5.

6(2)    Health care personnel who decline to participate in a service for reasons of conscience must

a) advise affected patients that they may seek the service elsewhere;

b) when appropriate, communicate to a person in authority a patient's request for a complete transfer of care so that the person in authority can facilitate the transfer;

c) upon the request of an appropriate person in authority or the patient, transfer the patient's records to someone designated by the person in authority or patient.

6(3)    Health care personnel may, upon request, if consistent with their convictions,

a) provide a referral; or

b) arrange for a transfer of care to other health care personnel; or

c) provide contact information for a person, agency or organization that provides or facilitates the service sought by a patient; or

d) provide general, non-selective information to facilitate patient contact with other health care personnel or sources of information about the service sought by the patient.

6(4)    In acting pursuant to subsection (2) or (3) above, health care personnel must continue to provide services unrelated to the contested service unless health care personnel and patient agree to other arrangements.

6(5)    Health care personnel unwilling or unable to comply with this section must promptly arrange for a patient to be seen by other health care personnel who can do so.

7.    Non-abandonment

7(1)    Subject to subsection (2), when a patient is imminently likely to suffer death or permanent serious injury if a service is not immediately provided, health care personnel must

(a) if no competent and willing health care personnel are available, participate in such services that are within their competence, including services within a designated class of services; or

(b) immediately arrange for available competent and willing health care personnel to provide the services, including services within a designated class of services.

7(2)    This section does not apply when the service intended to prevent imminent death or imminent permanent serious injury to one person has been or is likely to be facilitated by a contested service resulting in the death or serious permanent injury of another person.

PART III

DESIGNATED CLASSES OF SERVICES

8.    Designated classes of services; definitions

8(1)    In this Act, a service falls within a designated class of service if it involves

a)  control or manipulation of the human genome, human genetic material, human fertility, human sexual response or human birth;

b)  human experimentation or transformation;

c)  causing human death;

d)  oppressive activities such as coercive interrogation, force-feeding or torture;

e)  dishonesty, including lying, deception, falsification or deliberate misrepresentation;

f)  the storage, handling, transfer, sale, barter, or giving of human tissue or genetic material obtained by (a) to (e) in this subsection

8(2)    In this Section,

"causing human death" means, by an act or omission, deliberately causing or facilitating the death of a human individual, with or without the individual’s consent, but does not include

a) failing to provide or withdrawing medical treatments or interventions that are reasonably believed to be inefficacious or disproportionately burdensome; or

b) failing to provide or withdrawing treatment, interventions or care refused by a competent individual or by a lawful substitute decision maker acting on behalf of an incompetent individual.

"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;

c) when harm is suffered or believed to have been suffered by a human individual in the course of care, treatment or research, the fabrication, alteration, suppression, concealment or misrepresentation of data or information that may be relevant to the existence, cause, nature and extent of the harm;

d) in other cases, lying or deliberate misrepresentation or deception.

"human experimentation" includes any manipulation or surgical or pharmacological treatment of a human individual for the purpose of research, when the treatment

a) is not directly therapeutic for that individual; or

b) is not known to have therapeutic effects; or

c) may entail a risk of harm disproportionate to reasonably anticipated therapeutic effects.

"human transformation" includes the surgical, pharmacological or genetic treatment or manipulation of a human individual for the purpose of

a)   erasing or transforming identifiably human characteristics, including age, race, ethnicity, sex or mental capacity or intelligence; or

b)  incorporating non-human characteristics into a human individual.

"torture" 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 or purported consent.

PART IV

PROTECTION OF CONSCIENCE

9.    Compulsion prohibited

9(1)    Every one commits an offence who, by an exercise of authority or by intimidation, compels another person to participate in a service within a designated class of services when that person has indicated that he does not wish to participate for reasons of conscience.

9(2)    For greater certainty, "intimidation" includes threats or suggestions that a person who refuses to participate will suffer discrimination or disadvantage.

10.    Intimidation prohibited

10(1)    Every one commits an offence who, for the purpose of inducing another person or class of persons to participate in a service within a designated class of services, intimidates or attempts to intimidate or influence that person or class of persons by threats or suggestions that participation in such a service is a condition of

a)  employment, contract, membership or fellowship;

b) advancement or full participation in a trade union, occupational or professional association, occupation or profession;

c)  admission to an educational programme or institution;

d)  occupational or professional qualification or certification.

10(2)    Every one commits an offence who, for the purpose of inducing another person or class of persons to participate in a service within a designated class of services, intimidates or attempts to intimidate or influence that person or class of persons by threats or suggestions that failure or refusal to participate in such a service may adversely affect

a)  employment, contracts, membership, or fellowship;

b)  benefits, pay or advancement;

c)  full participation in a trade union, occupational or professional association, occupation or profession, or admission to an educational programme or institution;

d)  educational, occupational or professional qualification or certification

11.     Punishment prohibited

11.    Every one commits an offence who

a)  disciplines, suspends or dismisses a person or cancels his contract; or

b)  reduces a person's pay, benefits, scholarships, bursaries, or occupational or professional rank or academic standing; or

c)  revokes, suspends  or adversely affects a person's membership, fellowship or full participation in a trade union, occupational or professional association, occupation or  profession, or educational programme or institution; or

d) revokes educational, occupational or professional qualification or certification

because he failed or refused to participate or agree to participate in a service within a designated class of services.

12.    Discrimination prohibited

12.    Every one commits an offence who

a) refuses to employ or contract with a person or admit him to a trade union, occupational or professional association, occupation, profession, or educational programme or institution because he refused or failed to agree to participate in a service within a designated class of services;

b) refuses to employ a person or admit him to a trade union, occupational or professional association, occupation, profession, or educational programme or institution because he refused or failed to answer questions about or discuss his willingness to participate in a service within a designated class of services;

c) adversely affects the opportunities of persons to secure employment or admission to, or full participation in a trade union, occupational or professional association, occupation, profession or educational programme or institution unless they agree to participate in a service within a designated class of services or answer questions about or discuss their willingness to participate in a such service.

13.  Negotiated exemptions prohibited

13(1)    A person who attempts to circumvent this Act by negotiating a contract or agreement contrary to it commits an offence.

13(2)    All agreements contrary to this Act are of no force or effect.

PART V

GENERAL

14.    Liability

14(1)   Health care personnel who, in good faith, comply with this Act, shall not thereby be considered

a) negligent or guilty of professional misconduct;

b) guilty of unlawful discrimination against a person or class of persons.

14(2)    In any proceedings alleging non-compliance by health care personnel with a provision of Part II, nothing in this Act shall be interpreted to exclude or restrict a defence based on Section 2 of the Canadian Charter of Rights and Freedoms or analogous provisions of provincial human rights statutes.

15.    Penalties

Anyone who commits an offence under Part IV is liable on conviction

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.

16.    Saving

16(1)    This Act does not apply when a participation in a service within a designated class of services

a) is the principal duty of a position for which a person was hired or for which an employer is seeking an employee; or

b) is required of a person in a position created or designated in order to accommodate the exercise of freedom of conscience by other persons,and

c)  the requirement for participation is stated in writing in advertising, contracts, job descriptions, and other instruments before the position is filled.

16(2)    For the purposes of this section, a service is a principal duty if it is reasonably expected to occupy fully more than one half of the normal working hours of the person holding that position.

16(3)    Nothing in this Act shall be understood to limit the power of professional or occupational regulatory authorities to make regulations that are not inconsistent with this Act.

17.    Existing duties

Nothing in this Act abrogates or limits the legal duties of employers or others in relation to accommodation and non-discrimination under human rights law with respect to services not included in Part III.

18.    Procedure on trial

18(1)    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.

18(2)    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 prohibited in Part IV, 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.

19.    Enforcement of judgement

Where an amount that is ordered to be paid under Section 18 is not paid forthwith, the victim of the offence 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.

20.    Limitation of action

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.

21.    Restriction on judicial intervention

An order from a court directed to any person requiring participation in any service within a designated class of services shall be deemed not to apply to any person who objects, for reasons of conscience, to participation in such services.