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OPINION: Nova Scotia now a leader in medical assistance in dying

Agreements that allow a hospital to operate within religious doctrine violates the Charter and would provide no defence for the NSHA forcing transfers for medical assistance in dying, writes Jocelyn Downie and Daphne Gilbert.
Agreements that allow a hospital to operate within religious doctrine violates the Charter and would provide no defence for the NSHA forcing transfers for medical assistance in dying, writes Jocelyn Downie and Daphne Gilbert. - 123RF Stock Photo

Jocelyn Downie and Daphne Gilbert

It’s official – Medical Assistance in Dying (MAiD) is now permitted in all Nova Scotia Health Authority facilities. 

The NSHA took a very long time to produce its MAiD policy (more than three years after the passage of the federal MAiD legislation), no doubt in large part because it was trying to navigate the shoals of the issue of institutional religious objection to MAiD.  Specifically, would MAiD be permitted at St. Martha’s Hospital in Antigonish?  But the NSHA ultimately came to the right conclusion – right, not least because it is a conclusion that will reduce suffering, respect autonomy, and is consistent with the Canadian Charter of Rights and Freedoms.

St. Martha’s Hospital in Antigonish.
St. Martha’s Hospital in Antigonish.

In the early days after the legal availability of MAiD in Canada, it seemed that MAiD would not be permitted within the walls of St. Martha’s. The congregation leader of the Sisters of St. Martha’s was quoted as saying “it is named in the agreement (between the Sisters of St. Martha and NSHA) that we don’t do a suicide.” Asked about the issue, the NSHA implied, without stating explicitly, that MaiD would not be permitted at St. Martha’s:

"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."

and:

"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."

We and many others objected that the NSHA’s apparent position was indefensible. 

First, allowing MAiD to be prohibited at St. Martha’s could result in patients being denied access to MAiD – they may be too fragile to move to another facility (which was the option originally offered).  They may be at risk of losing capacity if transferred and therefore lose eligibility.  Or it might simply be unbearably painful for them to be transferred. 

Second, St. Martha’s is a name on a building, not an independent organization or institution. It has no corporate existence.  It is a facility solely owned and operated by the NSHA.  As a state actor, the NSHA cannot perform its functions in a way that interferes with an individual’s Charter-protected rights (here, as made clear by the Supreme Court of Canada in Carter v. Canada, the right to choose MAiD).  Health care is a publicly funded service and the NSHA has a legal duty to be neutral as between religions and between religious and secular interests in the delivery of that service.  NSHA support of a specific religion’s beliefs on MAiD would not be a neutral position – no matter the significant role of that religion in the history of St. Martha’s. 

It must be emphasized here that nobody is arguing that all physicians and nurse practitioners must provide MAiD.  The Supreme Court of Canada has emphasized that a patient’s right to MAiD must be reconciled with the conscience and religious rights of individual practitioners. Provincial/territorial regulatory bodies across Canada have established guidelines that permit objecting health care practitioners to opt out of MAiD so long as they provide a referral or transfer of care (in Nova Scotia, for example, the College of Physicians and Surgeons requires an effective transfer of care to a physician who is “available to accept the transfer, who is accessible to the patient, and willing to provide medical assistance in dying to the patient if the eligibility criteria are met”). However, in our view, institutions are not in an equivalent legal or ethical position to opt out, and buildings simply don’t qualify for Charter protections.

It is true that there is an agreement dating back to 1996 committing the NSHA to administer St. Martha’s in a manner consistent with Catholic doctrine. However, such an agreement violates the Charter and would provide no defence for the NSHA forcing transfers out of St. Martha’s for MAiD.  Therefore, the NSHA had no choice but to withdraw from the agreement or get the St. Martha’s Mission Assurance Advisory Council to stop denying eligible patients their lawful choice of MAiD as an end-of-life option.   The NSHA has no choice but to allow MAiD within all of its facilities. Fortunately, we did not have to resort to corrosive and time-consuming litigation to force the point.  Rather, the NSHA did the right thing and recognized its obligations. Slow but steady has won the race.

We are now in an enviable position relative to almost everywhere else in Canada. We have a clear assurance that, in all NSHA facilities, access to MAiD will not be held hostage to religious beliefs not shared by the individuals seeking MAiD.  MAiD providers who work in any NSHA facilities will be able to follow their own conscience and work with patients to secure the best end-of-life option for each individual.  Unfortunately, this is not the case in most other provinces in which governments and health authorities have failed to insist that faith-influenced publicly funded institutions permit MAiD within their walls.  Thus, Nova Scotia has gone from lagging behind on developing its MAiD policy to leading the way on a critical aspect of access to MAiD.

Jocelyn Downie (@jgdownie) is the James S. Palmer Chair in Public Policy and Law, Schulich School of Law, Dalhousie University. Daphne Gilbert (@daphnegilbert) is associate professor and vice dean governance, Faculty of Law, University of Ottawa.

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