BURST
Health facilities run by religious groups opposed to medical assistance in dying should allow non-staff doctors to carry out the procedure in their hospitals, the lawyer for a pro-MAID group argued Monday in B.C. Supreme Court.
It’s unconstitutional to require patients to “transfer away from their care team to access a medical service” not for any medical reason or lack of resources, but “entirely on the basis of a religious belief those patients do not share,” argued Dying with Dignity lawyer Robin Gage on the first day of a four-week constitutional challenge against Providence Health Care, a Catholic health care agency.
“It’s not consistent with principles of fundamental justice,” Gage told Chief Justice Ronald Skolrood.
There were about two dozen lawyers present and the public gallery was full with about 40 people.
Providence, the operator of the downtown St. Paul’s Hospital, is exempted from providing assisted dying at the hospital because it objects to the procedure based on the basis of religion, as guaranteed in the Canadian Charter of Rights and Freedoms.
Gage provided an overview of witnesses she will call, including details of the transfer of terminal cancer patient Samantha O’Neill, 33, on April 4, 2023, as experienced by her parents and friends.
O’Neill, who was admitted to the hospital in the weeks before her death, was transferred to a hospice 25 minutes away and her parents and her friends’s testimony will include how they were denied the chance to be with her when she died because she had to be sedated for the trip.
Their goodbyes were rushed, they said, and that O’Neill was sitting on a commode covered by a blanket during their last moments with her, according to Gage’s overview.
Her parents, Gaye and Jim O’Neill, are among the plaintiffs suing Providence, the province and Vancouver Coastal Health Authority on constitutional grounds, citing Section 7, which guarantees the life, liberty and security of person, and Section 2, which protects freedom of conscience and religion, including none.
The plaintiffs argue the Catholic institution should not have the right to deny a legal procedure in a building partly funded by taxpayer dollars.
Since Sam’s death, Providence has set up a separate area at St. Paul’s where patients can receive MAID. But the plaintiffs argue that patients can suffer the same harms from even a short transfer.
The province’s lawyer, Alison Brown, said in her opening argument the province will show the medical transfers of those requesting assisted dying are routine and the hospital doesn’t deny patients who request it the chance to access it outside of the hospital.
Brown said the plaintiffs’ position is that moving a patient for MAID, even to a room next door in the same hospital, is “still constitutionally impermissible.” But she argued that can’t be accommodated in Canada’s health care system and “it’s not what the Constitution compels.”
“There’s no positive and specific entitlement under the Constitution to access a health-care service in a specific room,” she said.
Brown also said the province’s evidence will include the history of the religion-based providers’ exemption and said it hasn’t deferred to them, but has struck a balance to ensure those providers and the health authority will ensure patient access.
“What B.C. has stopped short of doing is pushing faith-based institutions past a red line and into a irreconcilable conflict with their core mission and values,” Brown said.
Gage said in her statement that three doctors who practise assisted dying will testify the transfer of patients from faith-based institutions causes them “grave moral distress.”
“You will hear that forced transfers run contrary to what the physicians view as the nature of MAID, that is, meaningful, sacred and focused on relieving suffering,” said Gage.
But Brown said a medical expert will testify that doctors can provide ICU level care at the bedside when necessary and testify about the tools to manage anxiety and pain, said Brown. He will say there is no maximum level of a patient’s condition that would preclude a transfer, she said.
Since MAID came into law in 2015, the province has worked with religion-based providers to accommodate its patients by mandating that they must provide information to those requesting it, respect and not impede their requests, and continue to provide them medical care not related to MAID, she said.
“It’s not feasible for the court to take this generous policy, interpret it as a constitutional floor and then beyond that, elevate it to a specific hospital room,” she said.
The hearing continues.