Challenge likely to faith-based hospitals’ right to refuse assisted death, panel told
It is only a matter of time before the right of faith-based hospitals to refuse medical assistance in dying is challenged in court, said Sen. Serge Joyal. And provinces should take the lead, he said, rather than leaving such an important policy question to individuals.
Joyal, who sat on the special joint committee that studied the issue, said Ontario or another province should submit a reference question to the Supreme Court of Canada to clarify the issue of whether institutions can claim to be conscientious objectors to assisted dying, as faith-based hospitals are doing in Ontario and elsewhere.
A spokesman for Ontario’s Ministry of the Attorney General said the province is not proposing to commence a constitutional reference on the issue.
Joyal was speaking to a panel about medical assistance in dying in Ottawa this week when an audience member asked about the issue of faith-based hospitals and institutions that are refusing to participate. In Ottawa, Bruyère Continuing Care, a Catholic health-care organization that includes the only hospital with a complex palliative care ward and long-term care residences, will not allow assisted death in its institutions, nor assessments of patients. Pembroke’s only hospital is also Catholic-based.
Joyal said the question will need to be clarified, but he believes the Supreme Court addressed the issue in a 2015 ruling against prayers at municipal council meetings. In the case involving the Quebec town of Saguenay, the court ruled that reciting prayer before meetings infringed on religious freedom rights by professing one religion to the exclusion of all others.
The court also said that a neutral public space must be “free from coercion ... and is intended to protect every person’s freedom and dignity.” The concept of institutional neutrality would also apply to publicly funded hospitals, said Joyal.
The organization Dying with Dignity Canada has called on provinces to ensure there is access to medical assistance in dying in all publicly funded hospitals, hospices and long-term care facilities that care for the dying.
Spokesperson Cory Ruf said the organization has no formal plans to launch a constitutional challenge on the issue, but added: “We would likely be very supportive of — and may consider participating in — a legal action challenging the status quo.”
Ontario has not yet released policy or regulations around medical assistance in death. Many hospitals have their own policies in place.
The rights of physicians and other health providers to object to medical assistance in dying was underscored by the Supreme Court of Canada and in federal legislation. But institutions were given no such rights, although Catholic health officials say religious rights of institutions are protected under provincial legislation.
Dr. Viren Naik, an anesthesiologist at The Ottawa Hospital who has been involved in its assisted dying policy, said the hospital worked for months preparing to respond to requests.
“We have had requests — the when and the where is not important — what they want is how we do it.”
Naik said if patients want to die at home, the hospital works with the Champlain Local Health Integration Network to facilitate that. If they want to be at another institution, they help them get there.
Naik said his involvement with the issue has been one of the most challenging things he has done in health-care leadership and one of the most rewarding.
We have had requests — the when and the where is not important — what they want is how we do it.