Protection of Conscience Project
Protection of Conscience Project
www.consciencelaws.org
Service, not Servitude

Service, not Servitude

An Act to Ensure Protection of Conscience in Health Care

(Draft Legislation)

Introduction:

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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 Model Statute is drafted as a piece of Canadian provincial legislation, but could be adapted to other jurisdictions. It takes a 'procedure specific' approach to protection of conscience, illustrating an alternative to more broadly worded laws suggested by some authors.

The 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.

Definitions

2. In this act, "abortion" includes

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

b)    deliberately causing the death of a human zygote, embryo or foetus after implantation in the womb.

"synthetic reproduction" means

i) the use of any sexual, asexual or non-sexual method of bringing about, or attempting to bring about, the formation of a human embryo apart from an act of sexual intercourse, and includes artificial insemination, in vitro fertilization, embryo transfer, the manipulation of human genetic materials, the use of synthetic genetic materials, or any combination thereof; and

ii) fusing or attempting to fuse human gametes or genetic material with that of an animal.

"assisted suicide" means any act undertaken to help a person cause his own death, when the act that actually causes death is performed or meant to be performed by that person, with or without assistance;

"capital punishment" means 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" 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;

"embryocide" means deliberately causing the death of a human zygote or embryo after conception and before implantation in the womb or a drug or device designed for that purpose;

"embryonic experimentation" means any manipulation or surgical or pharmacological treatment of a human zygote, embryo or foetus for the purpose of research, when the treatment

i) is not directly therapeutic for the zygote, embryo or foetus itself; or

ii) is not known to have therapeutic effects; or

iii) may entail a risk of harm disproportionate to reasonably anticipated therapeutic effects.

"eugenic services" includes

i) killing, sterilizing or disadvantaging a human being, foetus or embryo because the human being, foetus or embryo has or is believed to have an illness, disability, unwanted characteristic or genetic predisposition; and

ii) any form of observation or measurement to detect illness, disability or unwanted characteristics or genetic predisposition 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" 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 treatment

"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;

c) in other cases, lying or deliberate misrepresentation or deception.

"human experimentation" means any manipulation or surgical or pharmacological treatment of a human being for the purpose of research, when the treatment

i) is not directly therapeutic for the zygote, embryo or foetus itself; or

ii) is not known to have therapeutic effects; or

iii) may entail a risk of harm disproportionate to reasonably anticipated therapeutic effects.

"person" includes a juridical person or juridical persons acting collectively in an identifiable institution, society, association or group, 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 includes the handling, transfer, sale, barter, or giving of tissue obtained by means of abortion, synthetic reproduction, embryonic or human experimentation, eugenic services, assisted suicide or euthanasia.

"torture" 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 intimidation, compels another person to participate in abortion, synthetic reproduction, assisted suicide, capital punishment, embryocide, embryonic or human experimentation, eugenic services, euthanasia, falsification, tissue trafficking, torture or the provision of contraceptive services, when that person has indicated that he does not wish to participate for reasons of conscience.

3(2) For greater certainty, "participation" includes

a) prior consultation or planning;

b) providing a professional opinion or rendering medical assistance in order to facilitate the procedure or make it more effective;

c) promoting, facilitating or collaborating in an activity in paragraph (a);

d) counselling or education of persons in a manner suggesting that an activity referred to in paragraph (a) is morally neutral or acceptable;

e) conduct that would make an individual a party to an offence or civilly liable if the activities in paragraph (a) were criminal offences or torts.

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 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 in the activities referred  to in Section 3.

Intimidation of applicants

5. Every one commits an offence who

a)  suggests that participation in the activities referred to in Section 3 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 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 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 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 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 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 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 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 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 in the activities referred to in Section 3.

Saving

7(1)  This Act does not apply when the activities referred to in Section 3

a) are the principal duties of a position for which a person was hired or for which an employer is seeking an employee or contractor, or

b) are required of a person in a position created or designated in order to accommodate the exercise of freedom of conscience by other employees or contractors, and

c)  the activities have been previously identified in writing as required in advertising, contracts, job descriptions, and other instruments referring to the position.

7(2)  For the purpose of this section, activities are the principal duties of a position when they will or are reasonably expected to

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

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

7(3)  Nothing 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 Act

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 trial

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 judgement

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 liability

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.