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Protection of Conscience Project

www.consciencelaws.org

Service, not Servitude

Model Statute
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An Act to Ensure Protection of Conscience
for Health Care Workers

(Draft Legislation)

Introduction:

This proposed legislation was first drafted in 1988.  It has since been updated to include references to procedures that were not significant issues at that time (for example: artificial reproduction and euthanasia).

In its current form, the statute is drafted as a piece of Canadian provincial legislation.  However, with slight changes, it could be adopted as a Canadian federal statute or incorporated into existing federal legislation.  It takes a 'procedure specific' approach to protection of conscience, illustrating an alternative to more broadly worded  laws suggested  by some authors.

The Website Model Statute incorporates a number of provisions some commentators have deemed important.   Readers will find other approaches to legislative drafting under existing and proposed protection of conscience laws.

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Short Title

1. This Act may be cited as The Protection of Conscience Act.The Act concerns only the defined activities. It does not, for example, concern blood transfusion or organ transplants.

Definitions

2. In this act, "abortion" includesIncludes = "is not limited to."

a)    the inducement or attempted inducement of the miscarriage of a female person, whether or not she is pregnant,

b)     the administration of drugs or devices to a female person or the manipulation of a female person to prevent the implantation of an early human embryo, whether or not conception has occurred,

c)    in the case of a multiple pregnancy, the killing of a human embryo or foetus in the womb to reduce the number of children to be carried to term;

The definition of artificial reproduction is broad enough ("includes")  to encompass cloning and any future technological developments. "artificial reproduction" includes the use of any sexual or asexual means of bringing about, or attempting to bring about, the formation of a human embryo, apart from an act of sexual intercourse, such as artificial insemination and in vitro fertilization, or human genetic engineering techniques, including the manipulation of genetic materials, the use of artificial genetic materials, or any combination thereof.

"capital punishment" meansThe word 'means' restricts the meaning of a word or phrase to that given in the definition, excluding other possible meanings. the execution of a sentence of death in accordance with military law or the law of the place where sentence is passed or to be carried out;

"conception"The definition of conception is the traditional scientific definition. [William J. Larsen, Human Embryology (New York: Churchill Livingstone, 1997) p. 1; Ronan O'Rahilly and Fabiola Müller, Human Embryology and Teratology (New York: Wiley-Liss, 1994) p. 19-20; Bruce M. Carlson, Human Embryology and Developmental Biology (St. Louis, MO: Mosby, 1994) p. 31; Keith L. Moore and T.V.N. Persaud, The Developing Human (Philadelphia: W.B. Saunders Company, 1998) p. 2]. It is supplemented by reference to artificial reproduction. means  the fertilization of a human ovum by human sperm;

"contraceptive services" includes the provision of drugs, devices or surgery for the purpose of preventing the fertilization of a human ovum by sexual intercourse;

"embryonic experimentation"Embryonic and human experimentation are distinguished in the Act because some legal systems do not acknowledge the existence of a human being or legal person in utero, but will acknowledge the existence of the embryo. includes any manipulation or surgical or pharmacological treatment of a human zygote, embryo or foetus at any time after conception, but does not include treatment which is intended to be directly therapeutic for the zygote, embryo or foetus itself;

"embryo transfer" includes the removal of a living human zygote, foetus or embryo from the uterus or location where it was conceived;

"eugenic testing" includes any form of observation or measurement, one purpose of which may be to identify illness or unwanted characteristics in a human being or in a human zygote, foetus or embryo, so that the human being may be sterilized or killed, or the human zygote, foetus or embryo aborted or killed;

"euthanasia"The definition of euthanasia does not imply that a patient cannot legally refuse ordinary treatment or food and water.  It simply ensures that health care professionals and others cannot be compelled to co-operate in killing a patient, especially when \'consent\' is provided by someone other than the patient.  means any act or omission, with or without the consent of the person who is the subject of the act or omission, which

a) is apparently intended to cause the death of the person, or

b) is apparently intended to accelerate the death of the person,

and includes the withdrawal or failure to provide artificial nutrition and hydration or ordinary medical treatmentOrdinary treatment  is not defined because of the difficulty in drafting a statutory definition which would reflect the variety of circumstances that might be faced.  Further: the definition refers only to a situation in which the intention is apparently to kill.;

"falsification" means

a) in the case of research data, the fabrication of research data or the deliberate introduction of bias or error into research data by any means, including addition, omission, suppression, misrepresentation, emphasis, or de-emphasis, during any phase of an experiment, including the design of the protocol, the material(s) and method(s) used, and the analysis of the data obtained;

b) in the case of research claims, the fabrication of research claims or the deliberate introduction of bias or error into research claims by any means, including addition, omission, suppression, misrepresentation, emphasis, or de-emphasis involving: research grant applications; advertisements; computer programs; research committees; proceedings; findings; reports; publications; conferences; or other medical or research information.

"human experimentation"Embryonic and human experimentation are distinguished in the Act because some legal systems do not acknowledge the existence of a human being or legal person in utero, but will acknowledge the existence of the embryo. includes any manipulation or surgical or pharmacological treatment of a human being for the purpose of research, but does not include treatment which is intended to be directly therapeutic for that human being;

"inter-species breeding" includes fusing or attempting to fuse human gametes or genetic material with that of an animal;

"person" includes all juridical persons and all recognizable institutions, societies, associations, and formal or informal groups of persons, whether incorporated or not;

"reasons of conscience" includes adherence to

a) religious doctrine or precept, or

b) moral or ethical belief, or

c) philosophical principle

that is understood by the adherent to make it wrongful for him to participate, directly or indirectly, in the activities referred to in Section 3.

"tissue trafficking" includes the handling, transfer, sale, barter, or giving of tissue obtained, directly or indirectly, by means of abortion, artificial reproduction, embryonic or human experimentation, embryo transfer, eugenic testing, euthanasia or inter-species breeding, or the provision of contraceptive services.

"torture"The definition excludes pain or suffering attendant upon the provision of legitimate medical treatment, law enforcement or penal sanctions. means any act or omission, whether or not it is legal under military law or the law in force in the place where it occurs, by which

a) pain is deliberately inflicted on a person, or

b) an attempt is made to inflict despair or mental or spiritual anguish on a person by

i) deprivation of air, food, water, shelter, clothing, hygiene, privacy, companionship, sensory experience, medical treatment or religious practice, or

ii) sexual touching or degradation, including seduction and exposure to pornographic or obscene materials, or

iii) enforced participation in acts proscribed or thought to be proscribed by the person's religion, beliefs or moral principles, or

iv) the application of mind or mood altering substances, or

v) the application of extremes of temperature, light, sound, or smell or the provision of unpalatable food or drink, or

vi) threats to cause death, pain or bodily harm to the person or another person, or

vii) threats to do any of the above

for the purpose of punishment or personal gratification, to intimidate or coerce the person or some other person, or to obtain information or a statement.

General protection

3(1). Every one commits an offence who, by an exercise of authority or by intimidationWhat is proscribed are threats or suggestions that people can be deprived of education, employment, promotion or benefits if they refuse to participate or co-operate in activities to which they object., compels another personProtection is not limited to health care workers.  It is extended to others who have supportive functions in health care who might be pressured to facilitate the defined activities, on the principle that the conscience of the hospital janitor is no less worthy of consideration than that of the chief surgeon. to participate, directly or indirectlyThis phrase is consistent with the meaning given to the term "participation" in the policy of the American Medical Association that prohibits participation of physicians in executions.,

a) in the performance of an abortion,

b) in artificial reproduction, capital punishment, embryonic or human experimentation, embryo transfer, eugenic testing, euthanasia or inter-species breeding, falsification, tissue trafficking, torture or the provision of contraceptive services,

c) in the advertising of the activities referred to in paragraphs (a) or (b), or

d) in the building, operation, maintenance, service or security of a facility where the activities referred to in paragraphs (a) or (b) take place or will take place, or

e) in the manufacture, advertising or sale of drugs or instruments intended to be used for the activities referred to in paragraphs (a) or (b), or

f) in the counselling or education of persons in a manner which indicates that the activities referred to in paragraphs (a) or (b) are morally neutral or acceptable,

when that person has indicated that he does not wish to participate for reasons of conscience.

3(2) For greater certainty, in the case of capital punishment and torture, "participation" includes

a) prior consultation or planning,

b) pronouncing death

c) providing a professional opinion or rendering medical assistance in order to prolong or facilitate the procedure or make it more effective.

Intimidation of contractors, employees and members of unions and professional associations

4. Every one commits an offence who, for the purpose of inducing another person or class of persons to participate, directly or indirectly, in the activities referred to in Section 3,

a) intimidates or attempts to intimidate or influence  that person or class of persons by threats or suggestions that

i) contracts, employment, advancement, benefits, pay, or

ii) membership, fellowship or full participation in a trade union or professional association

may be adversely affected if they do not so participate,

b) disciplines, suspends or dismisses an employee or contractor, or reduces his pay or benefits or cancels his contract, or suspends or revokes or adversely affects his membership, fellowship or full participation in a trade union or professional association, for the reason that he failed or refused to participate or to agree to participate, directly or indirectly, in the activities referred  to in Section 3.

Intimidation of applicantsProspective students and applicants for employment are particularly vulnerable to coercion.

5. Every one commits an offence who

a)  suggests that participation in the activities referred to in Section 3, whether direct or indirect, is a condition of employment, contract,   membership or full participation in a trade union or professional association, or of admission to a school of medicine or other educational programme,

b) refuses to employ a person or to admit him to a trade union, professional association, school of medicine or other educational programme for the reason that he refused or failed to agree to participate, directly or indirectly, in the activities referred to in Section 3.

c) refuses to employ a person or to admit him to a trade union, professional association, school of medicine or other educational programme for the reason that he refused or failed to answer questions about or to discuss his willingness to participate, directly or indirectly, in the activities referred to in Section 3.

d) adversely affects the opportunities of a person or class of persons to secure employment or admission to, or full participation in a trade union, professional association, school of medicine or other educational programme for the reason that

i) he refused or failed to agree to participate, directly or indirectly, in the activities referred to in Section 3, or

ii) he refused or failed to answer questions about or to discuss his willingness to participate, directly or indirectly, in the activities referred to in Section 3.

Intimidation of health care professionals

6. Every one commits an offence who, for the purpose of inducing a person or class of persons to participate, directly or indirectly, in the activities referred to in Section 3,

a) suggests that hospital admitting privileges, full participation in professional associations or trade unions, or other rights or privileges associated to the practice of medicine or nursing may be adversely affected if he does not so participate,

b) denies, restricts or revokes hospital admitting privileges, full participation in professional associations or trade unions, or other rights or privileges associated to the practice of medicine or nursing for the reason that he has failed or refused to agree to participate, directly or indirectly, in the activities referred to in Section 3, or

c) denies, restricts or revokes hospital admitting privileges, full participation in professional associations or trade unions, or other rights or privileges associated to the practice of medicine or nursing for the reason that he refused or failed to answer questions about or to discuss his willingness to participate, directly or indirectly, in the activities referred to in Section 3.

d) adversely affects hospital admitting privileges, full participation in professional associations or trade unions, or other rights or privileges associated to the practice of medicine or nursing for the reason that

i) he failed or refused to agree to participate, directly or indirectly, in the activities referred to in Section 3, or

ii) he failed or refused to answer questions about or to discuss his willingness to participate, directly or indirectly, in the activities referred to in Section 3.

SavingNothing in the Act would hinder employers who wish to hire people to perform specific tasks, or to dismiss those hired specifically for such work should they fail to live up to the terms of their engagement.  However, the terms of engagement must be bona fide , clear and in writing.

7(1)  This Act does not apply when the activities referred to in Section 3 are the principal duties of a position for which a person was hired or for which an employer is seeking an employee or contractor.

7(2)  For the purpose of this section, activities are the principal duties of a position when position when

a) they have been previously designated in writing in advertising, contracts, job descriptions, and other instruments referring to the position, and

b) the activities will or are reasonably expected to

i) comprise more than 50% of the activities performed by the person holding that position, or

ii) generate more than 50% of the gross revenue for activities performed by the person holding that position.

7(3)  NothingThe saving is not to be construed to concede a legal right by employers or other persons in authority to compel others to participate in activities to which they have conscientious objections. in this Section shall be construed to suggest that employers or other persons in authority have a legal right to compel another person to participate in any activity to which that person has expressed objection for reasons of conscience.

7(4)  A person does not 'protest' within the meaning of the Access to Abortion Services ActThe Access to Abortion Services Act makes it an offence in British Columbia  to express disapproval of abortion by any means  within a legally designated access zone.  Absent section 7(4), it would be  illegal  to refuse to participate in abortions in any hospital designated as an access zone.  Similarly, it would be  an offence for a priest or minister, having been asked for confession or counsel, to privately express any disapproval of abortion. The section would not be necessary in jurisdictions that do not have similar legislation.

a) by asserting objections, based on reasons of conscience, to activities referred to in Section 3, in order to avoid participation in such activities, or

b) by expressing objections or disapproval, based on reasons of conscience, to activities referred to  in Section 3, in response to a request for counselling or advice.

Protection Against Negotiated Exemptions

8(1) No person shall circumvent this Act by negotiation of contracts or agreements contrary to it.

8(2) All agreements contrary to this Act are of no force or effect.

Penalty

9. Every one who commits an offence against this Act is liable

a) for a first offence, to imprisonment for 6 months, or to a fine of $1,000.00, or both.

b) for a second offence, to imprisonment for 6 months, or to a fine of $5,000.00, or both.

c) for each subsequent offence, to imprisonment for 6 months and to a fine of $10,000.00.

Procedure on trialThe trial procedure allows for civil compensation when an offence cannot be proved  beyond a reasonable doubt, but can be proved on the balance of probabilities.  This spares the accused, the state and the victim the expense of a separate civil proceeding, and provides the accused better protection of his rights than may be had in a quasi-judicial tribunal.

10. A court that convicts or discharges an accused of an offence under this Act, shall, at the time sentence is imposed, order the accused to pay to the victim of the offence an amount by way of satisfaction or compensation for the loss of wages and benefits which resulted from the commission of the offence.

11. Where a court has not been satisfied beyond reasonable doubt that an offence has been committed, but is satisfied on the balance of probabilities that an accused engaged in conduct described in Sections 3, 4, 5, or 6, the court shall not convict the accused but shall order the accused to pay to the victim of the offence an amount by way of satisfaction or compensation for the loss of wages and benefits which resulted from the conduct.

Enforcement of judgementA procedure adapted from the Canadian Criminal Code allows the victim to enforce a judgement for compensation for loss of wages and benefits.

12. Where an amount that is ordered to be paid under Section 9 or 10 is not paid forthwith, the victim may, by filing the order, enter as a judgement in the Supreme Court of British Columbia, the amount ordered to be paid, and that judgement is enforceable against the accused in the same manner as if it were a judgement rendered against the accused in that court of civil proceedings.

Limitation of Action

13. No proceedings shall be commenced in respect of acts which are alleged to have contravened this Act more than 2 years after the date on which the acts are alleged to have taken place.

Restriction on judicial intervention

14. An order from a court directed to any person requiring participation in any of the acts defined in Section 3 shall be deemed not to apply to any person who objects, for reasons of conscience, to participation in such acts.

Protection from civil liabilityProtection against wrongful birth and wrongful life suits, and against claims for failing to provide artificial reproduction.

15. A person who refuses to participate, directly or indirectly, for reasons of conscience, in the activities referred to in section 3,

a) shall not be considered negligent,

b) shall not be considered guilty of professional misconduct,

b) does not thereby commit a tort,

and is not liable for any damages allegedly arising from the refusal.

16. For greater certainty, a cause of action shall not arise, and damages shall not be awarded, on behalf of any person, based on a claim that, but for a refusal to act based upon reasons of conscience,

a) a child would not have been conceived, or

b) a child would have been aborted, or

c) a person would have died.