Wednesday, March 25, 2015

Doctors make charter challenge on right to refuse care on religious grounds - Ottawa - CBC News

This story is a matter of some concern:

Doctors make charter challenge on right to refuse care on religious grounds 

There are, of course, a series of issues but I'll try to be clear from the start. I have very serious problems with medical professionals declining care to anyone on the basis of their personal values. Indeed, if you think you might be in a position where your values would lead you to decline care to someone who needs it ... you likely should not be working in the medical field.

That said, I don't want to over-react and there are some important issues that develop out of the case. Let me, however, try to deal with a big one up and one that is, perhaps, the elephant in the room: these doctors use of the word "Christian" as an adjective that describes themselves. I know that "Christian" can and has meant a bunch of different things to different people over a very long span of time. The question that Christians have to address right now is: what does it mean today. In my view, too many people adopt it as an identity: a public statement of their values that says something about themselves and who they think they are. It shouldn't because that is not what Christianity is about. Christianity is about what you do. The actual belief requirements are pretty minimal. You can check them out here if you're interested: March 12:30-1).  But, for me, one of the things that is important is that Jesus did not deny care to anyone. He didn't say to the leper "gee, I've got a problem with your values; they don't jive with mine so I can't help you." He didn't turn to the woman at the well and say "you know what. I think you're a slut. I'm not going to talk to you." Jesus never denied care to anyone. And, he never let his morality get in the way of making a connection with others and opening a relationship with them. Zacchaeus was a collaborator (heck, good reason to dislike him ... think Quisling); the Centurion was a member of an occupying force. Mary was a hooker. Paul was ... well ... a real jerk. I'll say it again because it is important: Jesus does not deny care to anyone because their behaviour or values or morals don't accord with his. The fact that people will use Jesus name to try to deny care to someone on the basis of their morals is not a position that is sanctioned by scripture, does not follow the model Jesus established, and has nothing to do with Christianity. It is, in short, an excuse and a moralistic and hypocritical one at that. I don't know whether or not these people have a Charter right to deny care to someone. I hope not but I don't know how the courts will rule. But I do know that their position has nothing -- absolutely nothing -- to do with Jesus or scripture or Christianity. I sincerely hope someone call them on this and I hope they change their minds.  Thus, and this is the point I want to make: as a Christian I simply cannot support the argument they are making because it runs so counter to what it should mean to be a Christian.

If these folks don't have much of an argument from a Christian perspective ... what kind of argument do they have from a secular perspective. I don't think its a good. As I said, I can't say for sure ... but the argument is shakey. Here is a bit of the news story that is pertinent:

"The two physician groups say in their statement of claim that the policy is a violation of a physician's right to freedom of conscience and freedom of religion.

"The obligation to provide an 'effective referral' for a procedure or pharmaceuticals to which the physician objects on moral or religious grounds is, for some physicians, unconscionable," the applicants say in the statement of claim.

The doctors also say refusing to provide certain procedures or pharmaceuticals does not violate the charter rights of patients, does not violate the Human Rights Code and does not amount to discrimination."

The story is vague enough that we really don't know what they are talking about and so we are forced to deal with principle. One of the key principles the courts in Canada work with is precedent. Once a ruling is made, it carries weight on future rulings, particularly but not exclusively across lower courts that might be called upon to rule in similar instances. This is a precedent that might be very dangerous to establish.

Let's take a small example. A doctor decides that they will not prescribe contraception. (I might say that most Christian denominations accept birth control and do not find it contrary to scripture. The Catholic church does not, but most Protestants are OK with it so ... again ... this particular example is not Christian per se.) OK, someone might say, let's give them that one. There are more than enough places to get contraception in Canada. The problem is that we have established a precedent: the doctor can refuse to prescribe a pharmaceutical that legal in Canada on the basis of their values.  The next court then sees this and the next case has to be judged in that light. What happens, though, if the next case is about something a bit more serious. Some medicines contain caffeine or mild stimulants to counteract drowse effects. Some allergy medicines would be an example. Well, someone refuses to prescribe that because their values don't allow them to prescribe stimulants. Heck, let's make up a name for this group of people ... we could call them ... oh, Mormons.

Now, my wife happens to have very serious allergies and needs these medications. Her doctor, we imagine, does not agree with them, says no, and the she is hospitalized. Is this OK?

Here we have a situation where a doctor knowingly refused to prescribe on the basis of his or her values a medication to a patient in the full knowledge that their action could produce a dangerous situation. Is that OK? As it turns out ... no. Under Canadian law, one cannot take an action that one knows can have dangerous consequences to another human being. I cannot, for instance, drive my car down the sidewalk -- whether that is my value or not -- because that is dangerous. I cannot rig up a shotgun to protect my garden from interlopers because the dangerous consequences are foreseeable. The doctors, in this case, is doing precisely the same thing: they are taking actions with knowable and foreseeable dangerous consequences.

The argument, then, that a refusal of medical care does not violate a person's Charter right seems rather odd because the Charter, in fact, guarantees precisely the opposite. Here is Section 7 if the Charter:

"Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice."

So, the only case that these doctors can make is that their denial of care is consistent with the principle of fundamental justice that overrides the patients right to life. I'd suggest that this is going to be a pretty tough sell.  One will need to show how having a person die so that another's "values" are clear is difficult, if not impossible.

But, and very importantly, the articles suggest that the doctors want to go even further. They want to argue that not only can they refuse care (again, insistent with medicine and inconsistent with Christianity) but they have the right to not even point a person needing care in the right direction. They will not even be required to refer the patient to another doctor.

This is very disturbing indeed because it goes beyond what the doctor is actually doing. They are saying that they have the right to exert as much control over another's life as they can without actually restraining them. Not only will they not help you, in other words, but they want to make it as difficult as possible for you to find someone who will.

The problem here is that this goes much beyond freedom of conscience. Most of us, I think, would recognize that we do need to make provision for freedom of conscience and religion as guaranteed by the Charter. We also recognize that making that provision might lead us into taking steps that contravene our values. I blogged about this last year with regard to accommodating a male students who claimed his religion did not allow him to write exams with women. This is clearly something that contravenes my values and I suspect most Canadians out there. Yet -- whether we agree with him or not -- we can make a reasoned case that we should accommodate him. It contravenes my values but that is not what is important. My values should not be dictating public policy. Instead, Charter values should and constitutionally must prevail. You want to rely on something more solid than my thinking for the values that organize our society. Thus, most of us are willing to accept the idea that there should be some space in society for things with which we disagree because others have the right to their own thinking, conscience, worship, political views, etc. That is, in fact, part of the character and nature of a mature democratic society.

What these doctors are doing, however, is asking for something much more than that. They are not asking for space to practice their religion (which they already have), the right to deny equality to gay and lesbian Canadians in their church (which they already have), the right to tax concessions which amount to a state subsidy for their religion (which they already have). I'm not disagreeing with these things, btw, I'm just pointing out what they already have. What they are asking for is the right to violate someone else's values and conscience and to do so in a way that may prove dangerous to them.

My bottom line, then, is that this case is not about freedom of conscience or religion, it is not about

Christianity, and it is about Charter rights except insofar as accepting the claim could establish a dangerous precedent. It might not be bad idea to have a discussion of these issues but let's have a clear sighted one, at last as clear sighted as we can have.

Let me conclude on a personal note. One of the reasons Christianity has so much trouble today is its proponents.  The churches have done a bunch of rotten things over the years and that is something that they need to address in a more serious way. One of the serious ways they need to address it is to show that they are not living in the past; that they care about others and a not a bunch of self-interests "my values first" people. That is what got them into trouble in the first place. The people putting these claims forward may honestly believe that they are defending Christianity. They aren't. They are making it more difficult for Christians to get a hearing in the public realm, they make a mockery of the claims Christians make to care about others; they make a mockery out of the claim that Christians are guided by scripture. In short, they not only do a disservice to civil society, but Christianity as well.

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