Religious Freedom Statute Law Amendment Act

Geoffrey F. Cauchi, LL.B (2011)

An Act to amend the Religious Freedom Act to protect the freedom of conscience of persons who have ethical objections to participating in the delivery of elective forms of health care services, based on a sincerely held religious belief.

Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows:

Amendments to the Religious Freedom Act

1. The Religious Freedom Act is amended by adding the following sections:

Right of Conscience of Substitute Decision Makers, Health Practitioners, and Faith-Based Health Care Institutions

2 (1). A substitute decision maker, as defined in the Substitute Decisions Act (Ontario), has the right to refuse to give his or her consent to, and shall not be required to give his or her consent to, a treatment or plan of treatment that involves an elective health care service to which the substitute decision maker has an ethical objection based on a sincerely held religious belief.

(2) A health practitioner has the right to not participate, and no health practitioner
shall be required to participate, in the delivery of any elective health care service to which the health practitioner has an ethical objection based on a sincerely held religious belief.

(3) A faith-based health care institution has the right to not participate, and no such
institution shall be required to participate, in the delivery of any elective health care
service to which the institution has an ethical objection based on a religious belief
sincerely held by the religious organization with which it is associated or by a majority of the individuals with which it is associated.

Idem. Immunity from Liability

3(1). No substitute decision maker, health practitioner or faith-based health care
institution to which section 2 applies shall be civilly liable for exercising his or her or its
rights under section 2, and no public official or employee of the government of Ontario, court or administrative board or commission or tribunal established under the authority of any provincial statute shall make any other order adverse to the interests of any such substitute decision maker, health practitioner or faith-based health care institution, based on the exercise of these rights.

(2) For greater certainty, but without limiting the generality of subsection 3(1), the
provisions of sections 2 and 3 of this Act shall apply notwithstanding the provisions of the Substitute Decisions Act (Ontario), the Health Care Consent Act (Ontario), the Ontario Health Care Plan Act (Ontario), and the Human Rights Act (Ontario), and notwithstanding the limitations in section 1 of this Act.

(3) Sections 2, 3, and 4 are binding on the Crown in the right of the Province of
Ontario.

Defences and Remedies

4 (1). A civil action for damages or injunctive relief, or both, may be brought for the
violation of any provision of this Act.

(2) It is not a defence to any claim arising out of a violation of section 2 or section 3 of this Act that such violation was necessary to carry out the instructions or wishes of a patient, or to prevent adding any burden or expense to any other health practitioner, health care institution, or individual.

(3) Upon finding a violation of this Act, a court shall award the aggrieved party
damages in amount equal to the greater of actual damages and $10,000.00, plus costs on a full indemnity basis.

Definitions

5. For the purposes of sections 2, 3 and 4,

"health care service" means any phase of patient personal assistance services or medical care, treatment or procedure, including, but not limited to, the following: patient referral, counseling, therapy, testing, diagnosis or prognosis, research, instruction, prescribing, dispensing or administering any device, drug, or medication, surgery, or any other care or treatment typically rendered by health practitioners or health care institutions;

"elective health care service" means a health care service that is not a medically
necessary health care service, but, for greater certainty, does not include the provision of nutrition or hydration, regardless of the means used to administer it;

"medically necessary health care service" means any form of service provided for the
primary purpose of curing or alleviating the symptoms of a medically classifiable illness, or promoting the healing of a physical injury or congenital defect, or sustaining life, but does not include treatment provided for the primary purpose of interrupting or impeding a naturally occurring process of the human body, or treatment provided primarily for socioeconomic, recreational or lifestyle purposes;

"participate" in the delivery of a health care service means to counsel, advise, provide, perform, assist in, refer for, admit for purposes of providing, or participate in providing, any health care service or any form of such service;

"health practitioner" means any individual who is a health practitioner within the
meaning of that term in the Health Care Consent Act (Ontario), and, in addition, any other individual who may be asked to participate in any way in the delivery of a health care service, including, but not limited to: a nurses' aide, medical assistant, hospital employee, clinic employee, nursing home employee, pharmacy employee, researcher, medical or nursing school faculty, student or employee, counselor, social worker, or any professional, paraprofessional, or any other person who furnishes, or assists in the delivery of, health care services;

"faith-based health care institution" means any organization, corporation, partnership, sole proprietorship, association, agency, network, joint venture, or other entity that is involved in providing health care services, whether or not it receives funding for its activities from the government of Ontario, including, but not limited to the generality of the foregoing: hospitals, clinics, medical centres, ambulatory surgical centres, private physician's offices, pharmacies, nursing homes, maternity homes, university medical schools and nursing schools, medical training facilities, or other institutions or locations wherein health care services are provided to any persons; provided that the institution has a material association with a particular religious organization or a group of individuals who self-identify as members of a particular religious organization.

Commencement

6. This Act comes into force on the day it receives Royal Assent.

Short title

7. The short title of this Act is the Religious Freedom Statute Law Amendment Act, 2011.