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Protection of Conscience Project

www.consciencelaws.org

Service, not Servitude
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Ontario

Health Care Workers' Conscience Protection Act (1998)

Introduction
An expert team of doctors, nurses and lawyers worked with Scarborough West MPP Jim Brown to research and develop the following bill. In the spring of 1998 he was pressured to drop the bill by three other MPP's, including the Party Whip. Then Ontario Health Minister Elizabeth Witmer is reported to have said later that "the government had no intention of even considering such legislation." As a result of opposition from cabinet members and senior bureaucrats, this bill has not yet been introduced for first reading in the legislature.

For those unfamiliar with Canada's party politics, the Whip is a party functionary whose job is to make all party members conform to party policy. Conformity can be enforced by threats of demotion , discrimination in promotion to important positions, ejection from the party, and refusal to permit the nomination of the non-conformist for future election. Members may even be threatened that their constituents will be deprived of beneficial government programmes . Party members need special permission from their leaders to vote according to their consciences rather than party policy . In practice, such permission is rarely granted

Perhaps one of the reasons there is no conscience legislation in Canada is that proposals must survive in a political environment that stresses and enforces conformity, and is therefore hostile to the principle of respect for individual conscience.

Explanatory Note

The bill permits individual health care workers to refuse to assist or participate in any designated health care service, except for delivering nutrition or hydration, which is contrary to their religious or conscientious convictions. It prohibits health care authorities from coercing workers in such matters and it sets out penalties for such coercion. In effect, it would ensure that no health care worker would lack legal protection if pressured to act against his or her conscience - whether through the threat of dismissal, demotion, or refusal to hire or give professional certification, or other forms of discrimination

A health care worker who intends to exercise a right under this act is required to give notice of that as soon as possible and is protected from liability for damages and from discrimination for exercising the right."


An Act to provide for the Protection
of Consciences of Health Care Workers

Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows:

Definitions

1. In this Act,

"designated health care" means anything that is done for a therapeutic, preventive, palliative, diagnostic, cosmetic, prognostic, research, counseling, family planning, treatment, referral or other health-related purpose, and includes,

(a) personal assistance services and community services that are related to health care,

(b) examination and assessments of an individual to determine the individual's physical or mental state in order to determine the health care that the individual needs,

(c) advising, counseling or giving prescriptions or referrals to an individual for the purpose of health care, and

(d) the compounding, dispensing or selling of a drug or the selling of a device, equipment of any other item to an individual, or for the is of an individual, pursuant to a prescription,

but does include the delivering nutrients or hydration to an individual; ('soins de sante designes")

"health care institution" means a public or private corporation, partnership, association, organization, agency or other legal entity that is involved in providing designated health care, and includes a hospital, a clinic, a physician's office, a medical school, a nursing school and any other institution or facility that provides training in providing designated health care; ("establissement de soins de sante")

"health care professional" means an individual who practices a health profession within the meaning of the Regulated Health Professions Act, 1991; ("professionnel de la sante)

"health care worker" means a health care professional or an individual who is employed by or who works for a health care professional or a health care institution' ("travailleur de la sante")

"personal assistance services" means assistance with or supervision of hygiene, washing, dressing, grooming, eating, drinking, elimination, ambulation, positioning or any other routine activity of living; ("services d'aide personnelle")

"Religious or conscientious conviction" means the religious or conscientious requirements or prohibitions by which an individual believes oneself to be bound in conscience. ("convictions religieuses or consciencieuses")

Right of Conscience

2(1) Subject to subsection (2), a health care worker has the right to refuse to provide designated health care or to refuse to assist or participate directly or indirectly in providing designated health care on the basis that doing so would,

(a) violate the worker's religious or conscientious convictions; or

(b) necessarily involve work that would violate the worker's religious or conscientious convictions.

Notice

2(2) As soon as practicable after a health care worker becomes aware of a potential or actual conflict between the worker's religious or conscientious convictions and the designated health care that the worker is required or requested to provide, the worker shall make reasonable efforts to give notice of the intention to exercise a right under subsection (1) to the individual who is to receive the designated health care and to one of the following persons:

1. The person or health care institution who employs the worker or for whom the worker works.
2. The physician who has prescribed the designated health care, if the worker is not the physician.

Protection

3(1) Despite any other Act, no person or health care institution shall require a health care worker to do work that the worker refuses to do on the basis of exercising a right under section 2.

No civil liability

3(2) Despite any other Act, a health care worker who exercises a right under section 2 to refuse to do work shall not be liable in damages to any person of health care institution for the refusal.

Prohibited treatment

3(3) Despite any other Act, no person or health care institution shall subject a health care worker to any of the following treatment for exercising a right under section 2:

1. Termination or threats of termination of employment or contract work.

2. Discrimination in hiring for employment or contract work.

3. Discipline, penalties, retaliation or discrimination in employment or contract work, including in privileges, benefits, remuneration, promotion and transfer from existing duties and responsibilities.

4. Discrimination in the admission to or the renewal of registration in an educational or training program.

5. Discipline, penalties, retaliation or discrimination in the participation in or the graduation from an educational or training program.

6. Discipline, penalties, retaliation or discrimination in respect of a grant or other financial compensation.

7. Discipline, penalties, retaliation or discrimination in respect of a health care professional by a College of a health profession within the meaning of the Regulated Health Profession Act, 1991.

8. If the health care worker is a health care professional who is otherwise qualified for a registration as a member of a College of a health profession within the meaning of the Regulated Health Professions Act, 1991, the refusal to grant, continue or renew the registration.

Exception

3(4) Despite subsection (3), a health care institution or a part of it may refuse to employ or retain the services of a health care worker who exercises a right under section 2 to refuse to do work or may terminate the employment or work contracts of the worker if,

(a) the institution is established for the primary purpose of providing the forms of designated health care that the worker refuses to do; and

(b) the institution has made a diligent effort to find employment or a work contract, as the case may be, of equivalent value for the worker in the institution if the worker is qualified for it.

Emergencies

3(5) This Act does not apply to designated health care which is necessary in an emergency situation to treat a patient who has a disease or injury which puts that patient at imminent risk of sustaining bodily harm or death when the health care worker who has a religious or conscientious objection is the only worker available to provide the designated health care.

Application to Crown

4. This Act binds the Crown, every agency of the Crown and every employee in the service of the Crown or an agency, board, commission, authority, corporation or person that exercises any function assigned or delegated to it by the Crown.

5. Nothing in this Act suspends or affects any civil or other remedy that a health care worker may have.

No waiver

6. This Act applies despite any agreement or waiver to the contrary.

Offence

7. (1) A person is guilty of an offence if the person,

(a) contravenes subsection 3 (1) or (3); or

(b) attempts to require, direct, or induce a health care worker to do work that the worker refuses to do on the basis of exercising a right under section 2.

Directors, officers

7 (2) It is an offence for any director or officer of a corporation to cause, authorize, permit, or participate or acquiesce in the commission by the corporation of an offence mentioned in subsection (1).

Penalty, non-corporations

7(3) A person other than a corporation who is convicted for an offence under this Act is liable to,

(a) for a first conviction, a fine of up to $2,000 or imprisonment for up to one year or both; and

(b) for a second or subsequent conviction, a fine of up to $10,000 and imprisonment for up to one year or both.

Penalty, corporations

7 (4) A corporation that is convicted of an offence under this Act is liable to,

(a) for a first conviction, a fine of up to $2,000; and

(b) for a second or subsequent conviction, a fine of up to $10,000.

8. Subsection 76 (1) of the Employment Standards Act, as amended by the Statutes of Ontario, 1991, chapter 43, section 2, is further amended by striking out "or" at the end of clause (h) by adding "or" at the end of clause (i) and by adding the following clause:(j) has exercised a right to refuse work under section 2 of the Health Care Workers" Protection Act, 1998.

Commencement

9. This Act comes into force on the day it received Royal Assent.

Short title

10. The short title of this Act is the Health Care Workers' Conscience Protection Act, 1998.


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