Today (Dec. 17) marks two and a half years since the coming into force of Canada’s federal legislation on medical assistance in dying (MAiD).
In Nova Scotia, MAiD has now been requested in about 400 cases and provided in about 200. Unfortunately, there is one particularly notable gap in access to MAiD: St. Martha’s Regional Hospital, a publicly funded faith-based institution in Antigonish, refuses to allow MAiD within its walls.
In other provinces, patients at publicly funded faith-based institutions have had difficulty accessing MAiD. In Alberta, Doreen Nowicki, frail and suffering from ALS, had to receive her assessment for MAiD eligibility on a sidewalk outside her hospital. Bob Hergott, essentially paralyzed by ALS, had to sign his request for MAiD in a bus shelter across the street from his facility. Gerald Wallace, weakened and in pain from pancreatic cancer, died in pain after waiting for an assessment in vain for weeks. In B.C., Ian Shearer, suffering from severe spinal stenosis, sepsis and other ailments, screamed in pain during his ambulance ride from a faith-based hospital to a non-faith-based one. His ambulance ride was particularly difficult because he had to reduce his pain medication to ensure he didn’t lose capacity (and therefore eligibility for MAiD).
Unfortunately, it is just a matter of time until such a horror story happens here, too.
No Nova Scotia Health Authority or Department of Health and Welfare policy prevents St. Martha’s from refusing to allow assessment or provision of MAiD within its walls. Just the opposite, in fact.
The only official statement offered by the NSHA on this issue contains two arguments for allowing St. Martha’s to force patients to be transferred out for MAiD:
“There is precedent within our public health-care systems, whereby faith-based health organizations provide complimentary (sic) services to those accessible through other service providers. Not every service is available at every public facility. In the interest of quality, safety, efficiency and efficacy, our health system does not offer many services (cardiac surgeries, births, hip replacements to name a few) in all facilities across the system.”
“A Mission Assurance Agreement was developed in 1996 as the ownership of St. Martha's Regional Hospital was transferred from the Sisters of St. Martha to the province of Nova Scotia. The Mission Assurance Agreement was made to ensure that the Terms of Agreement documents, philosophy, mission and values of St. Martha's Regional Hospital would remain the same and the hospital would keep its faith-based identity.”
Of course, there is a precedent in our health-care system in the sense that not every service is available at every public facility. However, there is no issue of “quality, safety, efficiency and efficacy” justifying non-provision of MAiD in any institution in Nova Scotia; providers are willing to go to the institutions and they can bring the equipment and supplies that they need with them. Quality, safety, efficiency, and efficacy can be legitimate justifications for not offering some services, but they are not served by forced transfers for MAiD. This purported justification is based on an invalid analogy to specialized care.
The argument based on the 1996 agreement is also invalid. The agreement signed between the Sisters of Saint Martha, Eastern Regional Health Board, St. Martha’s Regional Hospital and the Crown (as represented by the Nova Scotia minister of health) would not survive a challenge under well-established principles of contract law and is therefore not available as a justification for the NSHA or DHW in seeking to defend a policy allowing forced transfers.
Finally, the current approach allowing forced transfers violates the Canadian Charter of Rights and Freedoms and the Nova Scotia Human Rights Act.
Fortunately, there are at least three solutions. First, the Sisters Antigonish could agree to a compromise policy that would permit St. Martha’s to refuse to allow assessment or provision of MAiD within its walls (by non-objecting providers from outside the hospital), but only if the patient can be transferred to another location without undue harm or delay as determined by the Nova Scotia MAiD program.
Second, if the Sisters will not agree to this compromise, the Nova Scotia government could legislate it. Institutions that receive provincial funding would then be required to allow the assessment and provision of MAiD on their premises when the patient cannot be transferred to another location without undue harm or delay.
Third, alternatively, the NSHA could simply not renew the 1996 agreement. Going this route, the NSHA could cease to be bound by it as early as Sept. 28, 2019. Then MAiD assessment and provision would be available without compromise within what would presumably be a renamed secular hospital.
If none of these solutions are adopted, Nova Scotia may soon have its own Doreen, Bob, Gerald, or Ian. Or Nova Scotia patients who are, by definition, experiencing enduring and intolerable suffering will have to use precious time and energy at the end of their lives to go to court to argue for their rights to be respected.
For two and a half years, the NSHA and the health department have taken an extreme position that puts institutional religious freedom far ahead of the suffering of vulnerable patients. Time’s up.
Jocelyn Downie is the James S. Palmer chair in public policy and law at the Schulich School of Law, Dalhousie University.
