Protection of Conscience Project
Protection of Conscience Project
www.consciencelaws.org
Service, not Servitude

Service, not Servitude

An Act to Ensure Protection of Conscience in Health Care

(Model of a procedure-specific protection of conscience law)

Introduction:

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A protection of conscience law can be a general, procedure-specific or hybrid statute. 

General protection of conscience legislation offers protection in relation to all procedures or services to which health care personnel might object for reasons of conscience, without specifying them.  It provides the broadest and most flexible protection.

Procedure-specific legislation offers protection in relation to specific procedures or services that are acknowledged to be morally controversial, such as abortion or euthanasia.  Procedure-specific legislation may be more politically viable, but it is inflexible (unresponsive to new technological developments generating ethical conflicts) and narrow (applying only to the specified procedures).

Hybrid protection of conscience legislation offers protection in relation to certain classes of procedures, services or activities that are acknowledged to be morally controversial.  It may attract less opposition than a general law, but more than a procedure-specific law.

The model presented below is a procedure-specific protection of conscience statute. 

Readers will find other approaches to legislative drafting under existing and proposed protection of conscience laws.

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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 entails doing what one believes to be good or right and refusing to do what one believes to be evil or wrong, and is not merely a manifestation of personal preference, prejudice, comfort, or emotions;

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 it would be incoherent to impose a duty to do what one believes to be unethical or contrary to the good of a patient upon health care personnel, while also demanding that they always act ethically in the service of a patient’s good;

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

1. 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 service" means 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.

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

"participation" includes

i) prior consultation or planning;

ii) providing a professional opinion or rendering assistance in order to facilitate a procedure 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 contested activity is morally neutral or acceptable;

v) conduct that would make an individual a party to an offence or civilly liable if contested activities were criminal offences or torts;

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

"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 designated 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 services that are 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 services that are 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 services for reasons of conscience must

a) advise affected patients that they may seek the services 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 treatment or care 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.    Responding to emergencies

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 designated services; or

(b) immediately arrange for available competent and willing health care personnel to provide the service, including designated 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 SERVICES
8.   Designated services, definitions

8(1)    Services designated for the purposes of this Act are

i)    abortion,

ii)    artificial reproduction,

iii)    assisted suicide,

iv)    capital punishment,

v)    contraceptive services,

vi)    embryo transfer,

vii)    embryocide,

viii)    embryonic experimentation,

ix)    eugenic testing,

x)    euthanasia,

xi)    falsification,

xii)    human experimentation,

xiii)    human transformation,

xiv)    inter-species breeding,

xv) tissue trafficking,

xvi)    torture.

8(2)    In this section, 

 "abortion" includes

a)    the inducement or attempted inducement of the miscarriage of a female person, whether or not she is pregnant, and

b)    deliberately causing the death of a human zygote, embryo or foetus after implantation in the womb.

"artificial reproduction" 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.

"assisted suicide" means any act undertaken to help a person cause his own death, when the act that actually causes death is performed or meant to be performed by that person, with or without assistance;

"capital punishment" means 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;

"contraceptive services" includes the provision of drugs, devices or surgery for the purpose of preventing the fertilization of a human ovum by sexual intercourse;

"embryo transfer" includes the removal of a living human zygote, foetus or embryo from the uterus or location where it was conceived;

"embryocide" means deliberately causing the death of a human zygote or embryo after fertilization of a human ovum by human sperm and before implantation in the womb or a drug or device designed for that purpose;

"embryonic experimentation" 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;

"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;

"euthanasia" 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 ordinary medical treatment;

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

"human experimentation" 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;

"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.

"inter-species breeding" includes fusing or attempting to fuse human gametes or genetic material with that of an animal;

"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.

"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 designated service 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 designated service, intimidates or attempts to intimidate or influence that person or class of persons by threats or suggestions that participation in a designated 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 designated service, intimidates or attempts to intimidate or influence that person or class of persons by threats or suggestions that failure or refusal to participate in a designated 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

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 designated service.

12.    Discrimination prohibited

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 designated service;

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 designated service;

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 contested activity or answer questions about or discuss their willingness to participate in a designated 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.    Existing duties

15.    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.

16.    Saving

16(1)    This Act does not apply when a participation in a designated service

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 the designated service has been previously identified in writing as required in advertising, contracts, job descriptions, and other instruments referring to the position.

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.    Penalties

17.    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.

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 designated service shall be deemed not to apply to any person who objects, for reasons of conscience, to participation in such services.