 So welcome everyone. I'm Constance McIntosh. I keep forgetting to introduce myself, and I thought I would try that today as a starter. Associate Director of the Health Law Institute acting for Joanna Erdman. I'd like to start just by drawing your attention to Ashley Johnson here, who's just stepped into the place bar. And so this is the person who's going to be communicating with all of you over, we hope, the next few years, decades, we'll see. And running our seminar series from behind the scenes. So I'm enjoying working with her so far, and I think you will as well. So this is our last talk for the fall series, and as usual we're going to hear formal remarks until close to one, and then move to questions. And today I'm delighted to introduce to you Daphne Gilbert. She went through law school, getting, you know, full rights scholarships and prestigious clerkships and all of those things. And then the University of Ottawa scooped her up, they got her instead of us. And so we're happy to get a little bit of her today. She specializes in equality rights and reproductive justice. And one of the areas that she works in is conscientious objection. And so today you're going to hear some of her, I'm going to say, emerging and really interesting work on institutional conscience with regards to both made and abortions. So, welcome Daphne. Thank you very much. Thank you. Please, my students do not applaud for me, and so that makes me nervous. Then I'm going to have to go home and tell them to get on board. This is really emerging work in the sense that what you're going to hear from me today is raising a lot more questions and talking about the things I think that we need to address as we move forward and made, especially made, but also with abortion. So I'm looking forward to the question period and I've got my email address up here. Some of these texts, some of these slides are quite text heavy because I put up provisions from legislation and quotes from cases. I'm happy to email anyone the slides. So if you want to take down my email address, I also have it at the last slide. You can just send me an email and I'll return the slides to you. So don't worry about trying to grasp everything on them if it's a bit too text heavy for you. OK, so this is my roadmap. I'm going to talk, first of all, quite quickly about the framework that is in place for individual conscience objections. And so what I'm talking about there are physicians or nurse practitioners or pharmacists who have a conscience or religious objections to providing care and in particular made, medical aid and dying or abortion. And the framework that various colleges of physicians and surgeons across the country have come up with to reconcile those those rights with patient rights. So I'm going to talk about the individual case kind of quickly because I think it provides a really good framework for how we would move forward to talk about institutional objections. And the reasons why that matters is because across the country in almost every province, we have faith based institutions, both hospitals and long term care facilities that have publicly stated that they will not provide made or abortion, but mainly the conversation has a written in made because the entire institution claims a freedom of religion or freedom of conscience. This has caused some high profile problems and I'll talk to you a little bit about the cases in the news and it's caused provinces to have to figure out what to do and whether they want to put policies in place that require those institutions to perform the services or that some in some other way reconcile the rights of patients with the rights of institutions if such rights exist. So that's going to be the main part of what I want to talk about today. So any of the last students I'm sure this will be super familiar, I hope so anyway at this point in time. But this is the Charter of Rights and Freedoms for those of you who are not lawyers. And I'm in particular focusing on the last bulleted point there, the bold one, which is everyone has the following fundamental freedom, freedom of conscience and religion. That is what physicians and the institutions are claiming as their shields from having to perform made or abortion. I put up the other two because, in my opinion, equality rights, especially equality rights act as the countervailing interest for patients. Right. There's this idea of having equal rights to access to treatment, particularly for vulnerable groups. So particularly looking at age or disability as a ground where you have equality claims that could balance out on the freedom of religion. So Carter versus Canada, that's the now canonical decision of the Supreme Court, which struck down the criminal prohibition on maid and encouraged the government then to put in the regime that is now in place, the legislation which allows for maid in certain circumstances. And I've just got a couple of slides here that I want to show you some of the language that the court used in Carter to describe what is at stake when we're talking about medical aid and dying and why it is such a profoundly important choice that individuals should be free to make. So this slide just gives you the sort of constitutional argument, which is that people who are forced to take their own life before they're ready to or before they want to, but while they still have that capacity, it's a profound interference with their life interest. If you criminalize medical aid and dying or you have prohibitions against it, you know, it profoundly impacts the choices that people can make. This is how the court described what is at stake, right, that it is fundamentally important and personal medical decision making. And it's choices that people make with their own sense of dignity at stake, their own personal integrity and consistent with their lifelong values. So it's about the person, the individual's values. That is what the court felt was at stake in having criminal prohibitions on medical aid and dying. So some of that language I think is going to be really important when we start talking about the competing interests to the religious rights or conscience rights that are being asserted. This is very bare bones, I will say, and maybe a little bit superficial, but this is what I say we can take from this epic decision in Carter. And in particular, I've highlighted the third point, which is that, to my mind, if criminal prohibitions are made on physician assisted death are unconstitutional, that I think if physicians or hospitals prohibit it, that is also a constitutional problem. So that is the sort of premise of why I think we need to be looking at institutional refusals in particular. This, again, is one of these text heavy slides, but I just wanted you to see this is what the court said about conscience in Carter. And in particular, I've bolded the last line, which is that patients and physicians' rights will need to be reconciled. Reconciliation means both sides have to be taken into account. There's not going to be an absolute veto either by patients or by physicians, right? So that reconciliation comment, I think, then structures how we have to go forward to find that path of compromise, right? And the court was clear that although physicians can't be compelled, there has to be this reconciliation point. Across the country, colleges of physicians and surgeons, which are provincially run, have developed policies to deal with conscience and religious objections. I'm going to show you two, one from my home province of Ontario and one from Nova Scotia. This is the overall human rights policy for the College of Physicians and Surgeons, which was actually developed in response to concerns around abortion and contraception. And physicians who were refusing to either counsel for abortion or write prescriptions for contraception. And so the college drafted this policy to respond to that. And the key to it is that bolded language, which is the effective referral, right? If you have a conscience or religious objection, you must effectively refer your client, your patient, to somebody who can give them the full range of treatment, right? And the definition of effective referral is pretty specific, right? Someone who has to be made in good faith to a non-objecting, available, accessible physician. So you can't just send someone out the door with no name, no number to call, or with speculative resources that may or may not be able to take them. And certainly in Ontario, and I'm sure it's true here, finding a family physician is very difficult. So just being told to go and find a doctor who will see you is impossible to do that. So effective referral is a really key tool. We also have with respect to abortion and contraception and urgent care provision, which requires you to provide the care if harm is imminent. And usually when we talk about this, it's in the case of women who present in hospitals who are hemorrhaging, for example, from a failed abortion and where they're in crisis. And this policy would compel you to treat that person. We have a specific policy in Ontario unmade and it's very specific. So there's four parts to it. This is the first part where you cannot impede access, even if it conflicts with your conscience or religious beliefs, right? A very patient-centered putting the patient's interests first. Secondly, and this is really important, it's an information provision. You must inform the patient that your objection is personal, that it's not that they don't qualify. It's not that this isn't a good choice for them. It's that you are the one who has the problem with it and therefore it's, you know, it's not, you're not miscommunicating the source of the objection as being on their, that they're ineligible, for example, or somehow unsuited. But also, and this goes further than the policy on abortion, you have to make sure they have all of the options put to them. So as opposed to just sending them out to the door to find somebody else who will talk to them, because of the nature of patients who are facing the choice of medical aid and dying where it's not so easy to maneuver the health care system, the College of Physicians and Surgeons in Ontario requires all physicians to inform people about that option and to tell them what it would look like and how it could happen for them and do that before saying, you know, I'm not going to do it and you have to go elsewhere. And then finally it's the same definition of an effective referral for, made as it was in the general human rights policy, that it be made in good faith to a non-affecting available physician. Interestingly, and this is just to go back to the policy on urgent care. We don't have an urgent care policy as part of the made policy, but in the made policy it says physicians should turn first to the human rights policy for the overall kind of principle, and then the made policy is a more specific articulation of that. So I'm just wondering whether you could make an argument that facing a death that is not of your own choosing constitutes the kind of harm that might mean you should be provided a service as an urgent care measure, but that's a speculation, we don't have a case around that yet. This is the policy in Nova Scotia, which, so you can see the last part, which is bolded that in Nova Scotia, if you object to the procedure, you have to complete an effective transfer of care of that patient to another physician. And you can see in the definition of effective transfer of care, it sounds a lot like an effective referral, a transfer of care to a practitioner who in good faith is available to accept the patient. The one thing that's interesting about Nova Scotia's wording is it suggests that it's a stronger facilitation of the transfer that you would actually have to make that connection, not just give them a phone number or tell them where they could go, but actually arrange the transfer of care, the transfer of paperwork, the transfer of files, right? That's what I read as one interpretation at least of the stronger wording in Nova Scotia. In Ontario, our policy has been challenged in court by a group of religious physicians, religiously-minded physicians, there's five of them individuals, and some advocacy groups that represent religiously-minded physicians, arguing it is a violation of their freedom of religion, in particular, to have to make an effective referral. They lost at the first stage, at the trial stage, and this is some of what the court said around why they found in favour of the college's policies. First of all, it was they said a violation, that the judge said a violation of freedom of religion, but it could be justified under section one. And the first thing they said was this, they characterized the purpose of an effective referral policy as the equitable access to medical services. So they deliberately described the policy as about equality and equality rights. So that's the purpose, and of course, that's a pressing and substantial purpose to have equitable access to medical services. So then the court goes on to the balancing, the proportionality claim, and they make the note that physicians are gatekeepers to medical services. They are our entry points. They have the monopoly on the service. And so an effective referral model is minimally impairing on those gatekeepers because otherwise people have nowhere else to go. It's not like there's a market out there for other kinds of medical care, right? The way to ensure equity and equitable access is to make sure the gatekeepers are responsible. The physicians and the lobby groups here had argued for a self-referral model where they just had a list of doctors available or phone number, a central service that they could phone to get information on where they could go. The judge found that that did not address the equality concerns that she saw at play. And in particular, there's some language here that again I think is really valuable and important for us when we look at institutions because the judge said, focused on delay and said that the delay both exacerbated emotional distress and might make the person ineligible for care. And in the made context, that's a really big issue but it does also of course a big issue in abortion as you're facing gestational limits. So the delay in having to find another physician without effective referral, without someone facilitating that move for you was something that the judge was really alive to. Also, and again, I know this is text heavy but I wanted you just to see the vulnerable populations that the judge focused on. So homeless, those with linguistic or cultural barriers, economic constraints, intellectual disabilities, the lack of confidence of people when they're told that what they're choosing is something that is morally questionable, right? The stigma that comes from that. So the judge really made the quality analysis very paramount in the decision to say these could be very vulnerable people and they need help. They can't just be put out there on their own to do a self-referral. The judge also talked about stigma and shame and the shame that people feel when doctors make judgments about the kind of care that they're seeking, the fact that it's sometimes hard to even ask for the service and certainly in the context of abortion, I think that's still true but also true for maid sometimes with family pressure maybe that is telling you to go the other way to have them, a physician also put moral judgment on the service is difficult and I think that too is gonna be really important in the institutional context because I think the shame is even worse when the entire institution says this is something that as a hospital, we think is morally questionable and we will not do it. The court also talked about patient rights and this is all in this decision on the College of Physicians and Surgeons in Toronto in Ontario rather. And so there's interesting language here about the fact that it may be that healthcare is not a charter right but if you have a healthcare system, having equitable access to it is protected by the charter, right? Once you have the medical system in play, you cannot unevenly distribute benefits and certainly for abortion, it's a sex discrimination issue for maid, it could be an age discrimination issue, a disability discrimination, it could be religious discrimination for patients for whom this is the conscious choice that they wanna make for themselves, right? Because freedom of religion and conscience also includes conscience protections. So the judge and also recognizes in the last line the fact that it's a single payer monopoly system, right? We have a publicly funded monopoly system where the physicians are gatekeepers, tremendous privilege that comes from that and responsibility then to ensure it's equally available to everybody. And patient-centered. So this is the last bit I'm gonna say about the individual rights. The court says, you know, care has to be patient-centered. Physicians, consciences and religious rights are secondary to the patient. So in terms of all of that and how it might be relevant to institutions, this is where I wanna go now. We do not have a definitive answer from the Supreme Court of Canada yet on whether institutions can claim a right to freedom of religion. So that's the most basic question that we have to start with, is can an institution, when we say everyone has the right to freedom of religion and conscience, does everyone include institutions or organizations? There's three decisions that I wanna talk to you about very quickly. The first is Loyola High School. This dealt with a Catholic high school, private Catholic high school in Quebec that was being told that it had to teach Catholicism from a so-called neutral lens. This was the Quebec Curriculum advice and they objected to being told how to teach their own religion, basically. And the court eventually found in favor of Loyola High School, but did so first of all by not definitively answering the question of whether there's a right to freedom of religion. So four judges specifically declined to decide the issue. They say they're gonna leave it open for another case. But this is what they do say about the feeling that religion has this communal part to it. It has a community basis. Sometimes religion is best practiced as a community and we have to recognize that it's not just an individual matter. It can also have communal aspects to it. Three judges found that there is a right to freedom of religion and conscience for institutions. And this is what they say that freedom of religion for organizations is how individuals express their religious practices and transmit their faith. And therefore, in certain circumstances, an organization could claim a section to a charter right protecting freedom of religion and conscience. This was the test that they set out for when that could happen. If your organization is constituted primarily for religious purposes. And its operation accords with those purposes. So this is only three judges in a case where the majority declined to answer the question. But this is the closest we have to a test for when an institution could claim a section to a right. So I'm gonna raise the question in a few minutes about whether Catholic hospitals could or faith-based institutions generally could satisfy this test. But that is the test, but it's not, it's only from three judges in a case where the majority didn't decide the issue. The more recent case around institutional rights was the Trinity Western University case, which was about accrediting a law school that required its applicants to sign a covenant that said that they would respect that sex should only happen between heterosexual couples and in marriage, which obviously is a covenant that was discriminatory against LGBTQ people. The court found in favor of the law society's right not to give accredited standing to that law school and dealt with the question of whether institutions have religious rights. And again, specifically, declined to rule on it. So specifically said we're not gonna decide about whether institutions have section to a rights, but said this about, again, the communal nature, the socially embedded nature of religious beliefs, the traditions of institutions, and that it isn't just about individuals that sometimes we have to think about the community. They also said this, which I think is very useful when we talk about going forward with respect to faith-based medical institutions, and that is the cohesion that they see as necessary to this underpinning of a collective right, that the most important part of collective rights is the similarity of the believers, the cohesion within the community, the extent to which they all share common beliefs, common traditions, and a common understanding of their faith. And again, I'm gonna raise the question for you in a minute as to whether a hospital has sufficient cohesion to meet that kind of definition. And then the last case I wanna bring to your attention is the case of Saigonay. This is our, there's been many of these cases in the United States, but this is our case about prayer before, in this case, a city hall, a town hall meeting, where the court upheld the rights of a non-believer to not have to be faced with prayer, and particularly a Catholic prayer before the start of a town hall meeting. And the court expanded here on the doctrine of state neutrality, and what is required for the state to truly be neutral in how it approaches non-believers, believers, people of different faiths. So I've just bolded again some of the language that I think is helpful here, that, for example, cultural realities and heritage history is not an excuse to defer to a certain religious belief or to promote a certain religious belief. So sometimes we hear that, that it's not really about religion, it's really about the history and the tradition and the culture, and the court says that is not a reason to include religious symbols or religious prayers in public life. Even if it has always been done, it doesn't mean that it's a neutral position. And the court talks about the state not favoring a particular belief, the breach of state neutrality comes when you interfere with the conscience rights of others in that space. So in promoting one faith in this case, allowing one kind of prayer interferes with the conscience or religious beliefs of other people in the room who might not share that faith, who might not share any faith, have any faith belief that defines their world view. And in choosing one, the state is making a choice and that's a breach of state neutrality. So this is a lot of ifs, but in terms of the state neutrality, what would that mean in terms of Catholic hospitals, faith-based institutions? I say Catholic hospitals because that is primarily what we're talking about here in Canada. There are other faith-based institutions, so certainly in long-term care facilities, we have other faith-based long-term care, but it's primarily Catholic hospitals that where this question is raised. So the case of Eldridge in an older Supreme Court case now tells us that hospitals are state actors when they're delivering medical treatment. If a state actor, i.e. a hospital, refuses to perform abortion or a mage on the grounds that it compromises their freedom of conscience and religion, is it the state then, the state as a government actor, giving priority to one religious view, Catholicism, at the expense of other religious views? If so, that would be a breach of state neutrality, but what we would have to argue or consider is what is the competing freedom of conscience or religion right in that dynamic? It could be that physicians who are not of that religious faith, so non-Catholic, for example, physicians who work in a Catholic hospital, whose medical judgment tells them that the abortion or maid is what is warranted and necessary and is the right choice for this client who wants that treatment, could be their conscience rights are being violated by an institution that tells them they can't do it. It could be that the patients in that hospital who want it and whose consciences and religion beliefs aren't dictated by the hospitals, could be they have the competing claim, but we would need to understand that in order to talk about whether the state has breached its obligation to be neutral in delivering services. Loyola and TWU, what do they mean? Well, first of all, we would have to decide if there is an institutional right to freedom of religion, and if so, what it looks like. So Loyola's test, that two-part test that three judges came up with is one option, but in a case where it was actually presented to the court and they had to actually make the finding, it could be that a different test would be brought to the surface. So what would the test be? And then, do hospitals satisfy the test such that they have institutional rights to freedom of religion and conscience as opposed to the rights of the people working in them? If they do have an institutional right, if we said yes, there's a right to freedom of religion for Catholic hospitals and the delivery of care, then probably a policy that required them to perform made or to refer to made would violate that right. Just as it does in the individual case, in the individual decision I talked about, the judge did find that referral policies are an infringement of religion and conscience rights for doctors, but then we would move to section one. And in the individual case, it was under section one that the court upheld the reconciliation piece as being effective referral is the tool. So what would that look like for institutions? In terms of whether there is a right in the first place, aside from what the test would be, what the court would decide on the test, how Catholic, for example, are Catholic hospitals, how would we decide if they have sufficient cohesion, if they are sufficiently organized for religious purposes and delivering religious services, right? You could look at the board of directors, senior administrators, their charitable foundations, where they raise their funds, staff, patients, you know, we would have to be thinking about how cohesive these organizations are. In Ontario, for example, there are 21 hospitals grouped under long-term care facilities as well, grouped under an umbrella organization, which is the Catholic Health Sponsors of Ontario. They put, they choose a board member to go on each of these institutions' boards, so one of the board members comes from the umbrella organization, and they also have to approve all the other board members, right? So maybe you would be able to say that the board of directors is sufficiently infused with that religious character in terms of the directing mind of the hospital, but is that gonna be enough for the court? Would we have to then look at more than just the board of directors? I think these are gonna be some of the questions. I've got two mission statements here for you, and I know this is a lot of text. I've just bolded the green part here. So this is from Breer Hospital in Ottawa, which is where I live. Breer is the largest palliative care hospital in Ottawa. It has the most beds, and it's the only one which has the capacity to deal with complex palliative care cases. And it will not provide made because it is an organization under the umbrella of the Catholic health sponsors of Ontario. So when you look at their mission statement, the only reference you can see to religion and spirituality is this green-bolded piece, right? The rest of it is much more in line with what you might see in any hospital's mission statement. It's not unique to Breer to have these qualities. The only one that would be unique to Breer in terms of a religious sentiment is that bolded piece there. This is the mission statement for St. Michael's Hospital in Toronto. And again, I've just highlighted in green the places where you could draw out from a mission statement a religiously-based motivation in how the hospital is working. Just like the board of directors, I don't know if mission statements are an indicator of the culture of an institution that are sufficiently strong to either make the claim or defeat the claim for a religious right, but this is what I think we're gonna have to start looking at is what the terms of arrangements are between provinces that are funding the hospitals and the hospitals. What do the contracts look like? What, how infused is the life of the hospital in religious tradition, right? All of that's gonna come into play, I think, if we were trying to figure out whether there is a right in the first place, a section two-way right in the first place. There are also, and I think this would come into the section one analysis, very expressive or symbolic rights at stake. And I've called the third party here to me is the patient, because we talk about physician rights and the funding by provinces, but it's really the patients that have the most significant rights at stake, right? They're the ones who are being denied choices and perhaps being made more vulnerable by the assertion of religious or conscience rights. And I think there is a stigmatic harm from entire institutions being allowed to say, this is immoral, it's not something we're gonna do here. It may be a stigmatic harm that the court is prepared to accommodate because we live in a pluralistic society and we want to value religious freedom. So it may be that the court is prepared to acknowledge the harm and still say that the right should be located with the faith-based institutions, but it's gonna be something I think that they'll have to grapple with. And so, this is my quick little conclusion here. And I still have more to say, but this is my midterm, my mid, almost at the end conclusion, how's that? We have no ruling on institutional rights. We have to figure out the test. What would section one look like if there's a choice to be made? Should equality rights win? Should the patients, vulnerable patients, aged patients, disabled patients, should they be the ones that trump? How do we make that balance? In terms of where we stand now, the battleground right now is around getting the provinces to take on this issue. At least take it on in a head-on way, right? What is the province of the funding position on institutional faith-based rights? I have here the legislation in Ontario, which exempts faith-based institutions from providing services that the minister directs should be provided, right? So this is a, it's kind of, doesn't mean a lot just taken out of context, but it's in a piece of legislation that is called the Patient's First Act, and it says that the minister can make a policy directive, a policy directive like all institutions should provide made, but there's a deliberate exception here for faith-based institutions. This just contrasts the publication part of it, the information gathering part of it. In Ontario, at the moment, the Freedom of Access to Information legislation excludes people from being able to get information about what institutions will not perform made, how many requests they deny, how they process those requests. In Quebec, every institution has to publish those stats right on their own website on a yearly report. It's a completely different approach to information release, right? In terms of, in Ontario, it would be difficult to know the scope of the problem, because right now it's under this code of secrecy. And in Quebec, they have said flat out, every institution has to offer end-of-life care, and in the legislation, end-of-life care includes made. So there is no exception for religiously-based hospitals. In the news are four cases that I'm sure you've heard of if you have been following this issue. The top left gentleman is a man named Bob Hergot. He had ALS, terminally ill, was in a Covenant Health facility in Edmonton, had to go out to a bus shelter to sign his request for made, and then had to take a cab to another facility. He was paralyzed and had to be put into a cab to be taken over to a facility where he could access made. The bottom left is Ian Shearer, also a man who was terminally ill. His family reported that his crosstown journey to a facility where he could obtain made was absolute agony that he spent his last hours crying and screaming in pain because he had been moved from one institution where it couldn't be performed to another one. These are two very high-profile cases in Alberta that is getting a lot of attention. The top right is Ellen Wiebe, very much alive, very much alive. She's a physician in British Columbia who does a lot of made, but she was in the news for performing made in a Jewish long-term care facility for very hind men who had lived there for many years, wanted to die at home. His home was the long-term care facility. They would not allow made. She performed it anyway and argued successfully before her college that he had the right to die at home and that was his home. And then the bottom right is a horrific case of Doreen Nowicki, who was scheduled to have an assessment in a Catholic facility for made. They were not gonna perform it there. She knew that, but her assessment was supposed to be performed there less than an hour before it was to take place. They said, no, we will not assess you for made. She was losing capacity, so her family wheeled her down onto the sidewalk and she had to sign her assessment forms and be assessed out on the sidewalk off the property of the institution. She did not know what was going on, why she was being moved and her family said it was a real panic, shaky kind of hysterical situation to try to get the assessment done in time so that she wouldn't lose capacity before it was gonna happen. The politics, big P and the small P, right? Big P politics are wherever we live in our country, we have provincial governments of different stripes who have different attitudes towards this issue. The small P politics are the politics between the hospitals and the province and who's gonna blink, right? Would the province dare deny funding if made isn't performed after a directive is issued? Would Catholic hospitals actually close their doors if it was directed to them that they had to perform made or that they had to have some compassionate response in terms of their transfer policy? Federal intervention, the joint committee that examined what legislation should be used to implement Carter included this recommendation, this is recommendation 11 of 21 recommendations that the joint committee had which specifically says that institutions should not be allowed to make conscious or religious objections to made and that if you're publicly funded you should have to perform the service. So the federal government had that before them, they didn't make that part of the legislation. I'm not sure if it could be given the division of powers but that is the federal, that was what was recommended to the federal government. And this is the spectrum we have, right? On one side you've got nobody should be allowed to deny any care, no accommodation for religious believers, conscious believers on the other hand, you've got, we should have absolute rights to refuse and patients just take it as they come wherever they happen to be. Where we stand now, these are the compromises, effective referral for individuals, transfer of care for institutions, the transfer of care is what we get the problems that are making the news right now. And the crossroads is how we move forward. How are we gonna get this into court? Do we do it on the backs of an individual with all of the horrible things that that would entail in terms of putting families at the front of litigation, trying to find someone in that space between requesting and dying, who's prepared to be the face of the litigation and the incredible expense that the provinces would have to go to to deal with that litigation. Do we do a reference to a provincial court to settle the question, have a some other kind of public interest case? How do we move forward? And that's I think where the provinces are right now with differing attitudes across the country as to what the best thing to do. And there is my email address again for those of you who want the slides. Thank you. Opportunity now for, let's go ahead. Hi, I'm a forensic psychiatrist. I have a couple of questions about this. Not long ago on CDC, and loaded by the last time NASH, on behalf of some justices who just helped here in London, publicly established that no decision between the facilities will ever perform made. This will work for them at some point in time. But if I am willing to perform made on a patient that is institutionalized there, do they have the right to suspend my privileges as key property property, which I think is both right as to the word. And I think I'm not there yet. The expectation is to lock up in the facility. And the second question I have is that, I've heard about your where on November 21st, I think a woman had to advance her name decision because of the fear of producing capacity. And my question to that is, why is it that it may cannot be an advance directive that bookways in London and to be executed for the person that really wouldn't die. And it's something that appears to me in a really ridiculous way. When we know the patient's going to miss capacity and what they have to deal with, we die. Yeah, it was such a painful story. So on the first question, I think yes, privileges could be denied. And I think that is what's happening already. We already know that that's happening. That would be one interesting way to think about whether we could get a case to court. If a physician is denied privileges because they're unable to do what they think is best for their patient, it's a legal treatment. It's considered a medically necessary funded treatment. It would be an interesting case, right? To have a physician as the lead person saying it's my conscience rights that are being inferred. But that's where we are. That would be the situation. As far as advanced directives are concerned, there's a report, your own faculty member, Professor Downey is on that committee that is making a report to the government this December, I think, on how to improve made overall, advanced directives, mature minors, those with mental illnesses. And I think the federal government, that's going to be their problem as far as the legislation, because that is going to be hot potato dubbed right on them, I think. And that story, Audrey's story in Nova Scotia was heartbreaking, it was a heartbreaking story. And she was amazingly brave to come forward when she did, yeah, yeah. You've talked about good faiths, but you haven't talked about bad faiths. Bad faith implies harm, shame, pain. And the religious rights to supersede, to inflict bad faith. You haven't addressed that. And the fiduciary responsibility. Can you talk about that? Well, so this kind of goes to the point here, right? Which is, if as a physician, you feel your fiduciary duty to your patient obligates you in a certain direction. And it's, I think, particularly easy for me to understand it, say, in the context of abortion, right? Where you have a client presenting, where she wants the abortion, you think that's the medically correct choice for her, you can't perform it in the institution, right? That's your fiduciary duty, I think, that is the tension. And that's where I see, I think, it would be an interesting case for a physician to bring that to court, is to their own conscience rights, being able to dictate as opposed to the institutions. As far as bad faith is concerned, one of the very interesting problems, I think, on the individual level is these conversations all happen in private, right? They happen at bed sides. They happen in doctor's offices. And unless people come forward with detailed recollections of what was said, what was the tone of how it was put to them, I think it's gonna be difficult to talk about good faith versus bad faith referrals, for example, right? Because how do you know, being dissuaded from a course of action can happen. And then when someone has a lot of power over you as a physician and they're telling you this is really not a good choice for you and the idea that you would have to go to a college to complain about that, how many people would do that? So I think there's probably a lot of, a lot more objecting that happens that we don't hear about. Those four pictures of people, they don't have the choice to go to the legal system. That's right. So, I mean. Well, they could have, but it would have been too late to have. Yeah, it would have been too late to have. Yeah, yeah, yeah. Thank you for an interesting discussion. Thank you. The question I have here may be tangential is the legislation and the colleges are all promoting, I think, correctly, value, value, value-based, timely access to equitable services for people who want to talk. For the people who want to live, there's no obligation to provide timely, accessible value to the patients. Serves them, and it's back. Yeah. There are a lot of people who see doctors who have a small risk of a serious illness. And the doctor said, I'm not going to order this test because it's too expensive. There's no legislation around that. There's no reference to the value that you want to live. Yeah. No, and you can certainly see that in the conversation about palliative care. And, you know, I haven't spoken care about the other complicating factor, which is that the palliative care community has, I think, a difficult relationship with medical aid in mind. Many in the palliative care community support me, but there's many who feel that it goes contrary to not a religious ethic, but a palliative care ethic around celebrating death and bringing people to death in that sort of end-of-life care way where we care for people through the end of their life. We don't use maid. We actually care for people. And, you know, one of the common things you'll hear is, well, instead of maid, we should just make palliative care better. We should have more resources and, I think, the palliative care community can say, yes, yes, great. Give us money. Make it better. Make people have real choices instead of difficult choices to make. But resources are also there. In mid-life, people can't get time and equitable access. So we're in quite a position. Even if we're not, I don't think so. Yeah, no, it's true. Yeah. So that's the next step after you saw this. OK, all right, that's my best. Here, I'll put a message for those of you who have been into your review. I'd really like to have an interview with you on religion and not having the freedom to impose your religion on somebody else and worry about the amount of money that might be applied in this context. Yeah, so I saw his reasons. It's really drawing on the American tradition of pre-exercise, where in the American tradition, they have this idea of justice given, for example. You have the right to extend your arm, but not when it punches me in the nose. And that is, I think, so when I say we have to figure out what the test for a right institutional right would be, I think institutional rights are going to be narrower than individual rights for exactly that reason that we can give a lot more space for individuals in how they live their life, their choices. But when you talk about institutions that are directly impacting people, we might want to really think about whether that's charter protected. And I read these reasons and suggesting he would not be in favor of institutional rights because as institutions, they're all about imposing beliefs on others. And that's the whole reason we have communal faith is to bring people into our community. So he went further than all the other judges and he wrote a lot of stuff. So I don't know. I'm interested in the example TV. Most of them were from a big city. In Canada, what about the small town, the village, where the only access is the Catholic hospital? Yep, you have that here in Nova Scotia, right? Of course, yeah, yeah. That has been very detrimental to women in abortion access in the last 25 years here. Yep, and it's overall when we come to abortion, only one in six hospitals across Canada perform abortions. So it's sort of a much more acute problem in some ways there except that we have other ways of performing abortions, medical abortion and clinic abortions where we don't have that for made, right? We don't have clinics. You're right, the example, the high profile examples all come from the big cities. And I guess one of the reasons they become so high profile is because it seems outrageous that this would be happening in a big city, right? How can this be happening in Edmonton and Vancouver? But my worry about small towns is the relationship coercion, right? It's the, there's one doctor or three doctors in the town and you know them, you see them around. It becomes difficult to ask. It's hard. And if they kind of say, oh, I don't really think that's a great idea for you. You don't need to do that. You know, we can make you comfortable. You know, that kind of indirect pressure is really hard to combat. Yeah, yeah, it's gonna take a lot of education, I think. And made is every quarter that they publish the statistics for made, it's going up, up, up, up, up. Like more and more people are availing themselves of that option. It's, I wouldn't say it's becoming popular. That's like a horrible way to put it. Definitely becoming more socially acceptable. I act as an independent witness in Ottawa. So I volunteer with Dying for Dignity and I go sign assessment forms for people who don't have another independent witness that they can ask. And our organization has been inundated with requests now from people because it's just becoming more socially acceptable in the bigger cities. I don't know about the smaller towns. Yeah, yeah. But the problem of only having one institution, perversely, would be helpful to a legal challenge because that's where it's most acute, right? If you only have one place to go and if transferring you means you're now 45 minutes away and your family can't be with you. And that'll be the perfect storm of a legal challenge as to the inhumanity of that and the burden of that. So, which is the perverse thing to say about small towns that we look forward to a crisis so that they can bring it to court. But yeah, yeah. Mom, you had a slide where you looked at sort of what makes it a hospital pathway for the board of directors. Do you have any information in terms of what the pattern of funding is? Historically, the church owns certain hospitals and had some funding towards it. Do they still put that money in or? Yeah, so that is an interesting question and I think it varies across and I don't have specifics for all of the regions. So for example, because that's something that often gets raised, right? And if we denied public funding, they would have to close their doors and then the province would be faced with buildings that it had to settle to buy. Certainly in Ottawa, the Rear Center is privately owned by the religious order. They rent it to the government for a dollar a year. So yes, in Ottawa, it would be a problem if Rear wanted to walk away from the contract and they had to then cope with buying the buildings. That would be a huge issue. Here in Nova Scotia, my understanding in St. Marcus is owned by the hospital is owned by the contractor services. And so it would be easier, it seems to me, to walk away from that arrangement. You'd have staffing issues immediately and you might have the missions you won't stay, but the building would be the problem. But it does, I mean, Covenant Health in Alberta, I think owns a lot of the properties. I'm not sure. In Vancouver, there's like, for example, St. Paul's is just a big half of the decision. I don't know who owns that or how the contract works. Each institution has a separate memorandum of understanding with those contracts. For the individual dogs, you mentioned as the compromise that I would expect from. And you use that in the area of Nova Scotia to see that the other provinces doing different things. Well, so in the Ontario case, that was what the applicants argued, was that Ontario's policy went beyond what any other province was doing and that other provinces were more respective of individual rights, conscience and religious rights. In Ontario, the judge said, I've looked at the evidence. Yes, Ontario has somewhat different worries, but it's not so far online from what other provinces are doing. So I think some of the things like in Nova Scotia, when it comes to me, for example, it seems to me that your policy actually requires that transfer of care to be facilitated, that you make connections, that you have a doctor who will take your patient. That isn't what is required in Ontario. And the other provinces, all provinces have some kind of conscientious objection policy that governs. Some of them don't require provision of information, so they'll allow the doctors to simply stop and say, oh, nope, I can't talk about that. I'll give you a list of doctors you can call. So much more of a self-referral model, a hands-off model. But all of them have some kind of conscientious objection policy. But Ontario, I think, probably is one of the strongest as far as what an effective referral means, although Nova Scotia, if you interpret it the way I read it, maybe my name will be stronger. Which is probably because you have Jocelyn Downey. Who gave me that. Just reflecting on abortion access over the years, it seems to have been largely pushed through the courts and government remains silent, despite the continuing inequity, especially in Ontario. Anyway, is the feeling that some of these more politicized, or sorry, some of the cases that you mentioned, that are in the media that are really kind of like bringing attention to the suffering of these positive people, is there any feeling that that might be enough to persuade the government to not be silent on me like it has been on abortion? Or do you feel like this is still going to have to go through the courts to get anywhere? Well, I think the governments are actively engaged in this issue. There may be provinces where court action is the political cover they need, but I think there are provinces where governments are prepared to maybe take a stronger stand. And we have Quebec, which has a particular healthcare system where that works in their context. But one of the reasons I include abortion in this talk, even though it is really a secondary concern in terms of governments, is because I don't want people to forget that Catholic hospitals, faith-based institutions will not perform abortion either. And we have been utterly silent about that. That would never on anyone's radar. MADE has put it out to the radar, whether it'll have implications for abortion for sure. But it's interesting to me that it was, it took MADE to get it on national attention about, I mean, people, I didn't even know we had Catholic hospitals until this, you know, Kefafal came up about MADE. And I'm like, well, you know, that's the abortion problem, right, in the hospital. Now, it's different for abortion because, you know, you can go to clinics, now there's medical abortion, like, and people are more easily able to travel. Not that it's easy, but it's not the same as being, you know, terminally ill and having, you know, the conditions that make MADE so acute. So I think that the crisis feels different, but the reality is that, you know, the Catholic hospital's faith-based practices have denied women access to abortion in communities for decades, forever. But I just do think that there will be provinces that take a proactive step. Not mine, not Ontario, I have to say that. But maybe yours. Maybe yours. Last chance to ask a question. I have a follow-up question. If we do have situations where some problems that they're willing to go that step in and say that they've got something that they're going to allow, do you think that there's any, there's gonna be an issue of kind of medical tourism as there has sort of been with abortions? Yeah, so first of all, Professor Downey has a model code that she has developed for hospitals, which don't require forced transfers in every case, or sorry, don't prohibit forced transfers in every case, that her model policy would have the MADE team be able to decide whether the person could be transferred, whether they're physically capable of being transferred or whether it has to happen in the institution. And the criteria that she has includes not just physical suffering, but also the potential loss of capacity and that transfer, how close are they to losing capacity, also psychological suffering, the burden on the family, right? So there's a lot of conditions, but that is somewhat of a compromise, I think. I think if A province adopted that policy, what I would hope is that you would see that domino of, if one province has done it, that makes it easier for other provinces to do it. Just like my hope is that if it actually goes to litigation, the provinces will join together as interveners and come and support each other to make the argument and not leave one province out there dangling in the wind. But as far as the medical tourism, I don't see that happening because you're talking about people who are so incredibly ill. And already they're going to be transferring to institutions. So to transfer to an institution out of province, just to get the service, you can get the service. You'll just have to move institutions. Whether people would go into long-term care facilities in other provinces because they would allow made, I doubt it just because of the whole family thing. So the abortion is in, out, but palliative care, end-of-life care is not like that. I guess even in those smaller communities where you're restricted to a single case, we could still go somewhere in a larger city such as Halifax. That's right. Yeah. Services available. So, you know, and that's the counterargument that the faith-based institutions are going to make, right? Is that it's not a denial of service because you can get the service and not every hospital performs every service. That's going to be their argument. Is there a second question? Pharmacists can now administer and dispense and prescribe and write medications. Why would people look at legislation and enable them to administer assisted death? Because that's not a highway technical. Yeah. And people could do it at home. Yeah. And it would expand the capacity. And in every community, they're not non-resistive. Yeah. Well, so this problem is really a problem of people who cannot be at home. Because that's right. About 40% of May deaths right now happen at home. And you know, that is the dream of May, right? Is that you would have it at home and because that's the death of your choosing and you know, et cetera. But not everyone can be at home. And not everyone wants to be at home. And so, yeah, we have direct dispensing by pharmacists. Say you had a physician who gives a prescription and the pharmacist gave the drugs to the person, but then you have to only be able to do it at home. Which for some people, it's just not an option. Oral medication, your family. Yeah, well. And why do you need a condition to prescribe? Well, I... That's a whole lot of medicine. Sorry, yeah. And I think, you know, being able to take your half, like taking medication at home is one thing. It's just some people don't want to die at home. They don't want their families to have to deal with that. And, or they're just already in an institution and they want to die where they are. You know, in Ottawa, I would say about half, the, you know, we're just an example, but about half the deaths happen at home. About 25% happen on outpatient basis where a person can make an appointment. It comes in and has made in the hospital, but like it happens on a day of their choosing and they just come to the hospital. And the other 25% are happening to people who are in hospital. You know, being treated for cancer or whatever. And they can't, they don't do it. In the herald today, the abortion pill is not being made available in Nova Scotia and Halifax at a time in a fashion. So here we have religion interfering with a self-administered, not medically assisted. And it seems like we're going backwards here. Yeah, so I'm not familiar with that case. I mean, assuming that's a problem with pharmacists, it's not stocking it. The doctor's not prescribing it. The doctor's not prescribing it. While that, you know, yeah, that's outrageous. It is, it is just that, you know, I mean, it's legal. It's a medically necessary funded service. It's free in Nova Scotia. The drug is free in most provinces, all of one. I think I have made it completely free. And, you know, there's no reason not to be. But it's not that fake. Yeah. Okay. And what is the legal system doing about that, that, please? Well, we would have to have someone complain. We need someone to come forward and complain. We need, you know, we need colleagues to, you know, be telling other colleagues that unless they, you know, if they hear about it, right, hear pressure from doctors. It's so hard because if a woman doesn't have the drug and she walks away and goes to a clinic and has a surgical abortion instead, is she really going to come forward with a complaint? You know, most women just aren't in a space to go public and to take on the system around something like that. It's so personal. It's so stigmatized. And that's why, you know, you want to have provinces either proactively, you know, pass legislation or directives that make clear the obligations or you want to have a reference to your court of appeal where you don't have to have an individual case. You don't have to have a person who's doing it. You can just ask the question to the court and get a ruling because doing it on the backs of the person is really hard. I mean, you know, the Carter case was, you know, incredible journey for those families from trial up through appeal. It was an incredible odyssey. And yeah, not many people can do that. Celebrate those who do, but I also totally respect and emphasize the people who just can't and don't want to do that. All right, so I just have a few words. First of all, thank you all for joining us. Thank you. I'm contributing to the conversation. I hope that we'll see you back in January. Our first talk of the winter season will have the provincial chief public health officer, Robert Strang, talking about the cannabis legislation. We've been talking about cannabis legislation in the past, present, and future. That's going to be a very dynamic presentation. And I ask you to join me in one second.