Medically assisted dying: What happens when religious and individual rights conflict?

A Winnipeg man's struggle to be assessed for a medically assisted death while he lives at a faith-based hospital has some questioning how we balance personal and religious rights in Canada.

Lawyer Allison Fenske explains how Canadian law works, and how the courts strive to balance competing rights

Access to physician-assisted death in Manitoba is through a specialized health-care team, but it can't be received in every health-care facility. (CBC)

A Winnipeg man's struggle to be assessed for a medically assisted death while he lives at a faith-based hospital has some questioning how we balance personal and religious rights in Canada.

"I want to die and nobody should come in the way of my deciding how to go about it," Cheppudira Gopalkrishna, 88, said on Saturday.

However, because Gopalkrishna lives at a faith-based hospital that objects to medical assistance in dying, he has struggled to be assessed by Manitoba's MAID team under provincial guidelines regulating such deaths.

I want to die and nobody should come in the way of my deciding how to go about it- Cheppudira Gopalkrishna

Gopalkrishna has amyotropic lateral sclerosis (also known as Lou Gehrig's disease), a progressive degenerative disease for which there is no known cure, but he lives at the Misericordia Health Centre, a Catholic-affiliated facility that objects to medically assisted dying. After waiting months, he was finally taken out of the hospital for his MAID assessment elsewhere.

It's all part of the balance between competing rights that governments, individuals, organizations and potentially courts will have to figure out now that medical assistance in dying is legal, says Allison Fenske, an attorney with the Public Interest Law Centre who has represented three people who wanted physician-assisted deaths.

Information Radio host Marcy Markusa asked Fenske about medically assisted death laws, personal and religious rights on Monday morning. The following is an edited transcript of their conversation.

Marcy Markusa: How does the assisted dying law work in Manitoba?

Allison Fenske, an attorney for the Public Interest Law Centre, says a balance must be found between patients' right to access medical assistance in dying and health-care providers' right to religious freedom. (CBC)
Allison Fenske: The law itself is an exemption provided within the Criminal Code. It's federal law, but it's actually implemented through the provincial health-care system, and so the province here has decided to have one single clinical team provide medical assistance in dying — so a more centralized process — and that team develops that expertise and they provide those services.

Markusa: And because of that, health-care providers, doctors or nurses, can refuse to be involved if this is against their personal religious beliefs. Is that right?

Fenske: The doctors, other health-care professionals, always have that opportunity under their own charter rights [Section 2] to freedom of religion and conscience that allows them to assert a conscientious objection, and the way around that is having a clinical MAID team that can step in and still provide the service.

That does set up a bit of a conflict, though, when it comes to the patient's own rights. They also have charter rights in these circumstances.

Markusa: So how are the rights of the patient protected?

Fenske: You have a patient who has their own charter rights under Section 7 — that's the right to life, liberty and security of the person — and then you have the providers and perhaps even the institution asserting conscientious objection or asserting their freedom under their own religious beliefs.

So assuming that you accept that an organization can have religious beliefs and be protected by that Section 2 of the charter, you end up on a bit of a collision course in terms of the patient's rights and the institution or the providers, and what really needs to end up happening is a balancing of those rights.

Markusa: It's not the rights of the individual that are being challenged, it's the thought that an institution can have rights, religious freedoms and rights. Do we have case law to show in Canada that that would stand up?

The Supreme Court of Canada will rule Friday morning on whether mentally competent but suffering, terminally ill patients have a right to a medically assisted death. The Supreme Court is seen in Ottawa on Friday, Feb. 6, 2015. THE CANADIAN PRESS/Sean Kilpatrick (Sean Kilpatrick/Canadian Press)
Fenkse: There's certainly some instances where organizations have been able to, for example, successfully challenge an otherwise unconstitutional law on the basis of freedom of religion, but in some of those cases, the law itself was unconstitutional, and that's a little bit different from when an organization is trying to assert their own kind of constitutional exemption to an otherwise constitutional law.

And so I think it remains to be seen how far the courts would potentially extend the freedom of religion when it comes to if it's not centred around a specific provider but instead at an organizational or institutional level. I think that there's still some unanswered questions there.

Markusa: If a patient has the right to request the service, they meet the certain criteria, and the physician has the right to opt out as we've suggested, how can a faith-based facility refuse to have that service within the facility?

Fenske: So they would be arguing that they've got that Section 2 freedom of religion and then, again, it comes down to that balancing act I was mentioning previously.

The courts have said that when it comes to competing rights, that they look to things on a case-by-case basis- Allison Fenske

There is no hierarchy of rights when it comes to charter rights in Canada, and so it's important to zero in just on the rights that are being asserted, and try to come up with a way that both can be accommodated, and if they can't be accommodated, then one might turn to the courts to resolve that challenge. And the courts have said that when it comes to competing rights, that they look to things on a case-by-case basis, so it's highly individualized and very fact specific.

So it's kind of hard to project what might happen, but certainly you'd be looking at are there any possible accommodations that could help … both parties maintain those rights.

Markusa: Other jurisdictions in Canada also have faith-based health-care institutions, this is not unique to Manitoba. …How have they handled, elsewhere in Canada, medical assistance in dying?

Fenske: Manitoba's unique in having that single clinical [MAID] team, and I think that that likely goes a long way to what I was speaking about in terms of accommodating.

It's also important to remember that this isn't actually a unique or new issue for Manitoba. There's been a number of instances where you have health-care services that are limited by the fact that faith-based organizations won't provide them — for example, abortion.

Understanding it in the context of medical assistance in dying, this is a new conversation because of the recent changes in law, but the tension between services that are being provided and who's providing them isn't new for Manitobans.

Markusa: Many of our Manitoba faith-based institutions are Catholic. How does that compound the issues that come up?

Fenske: I actually don't think that it's specific to the particular religious faith.

What I think is the more complex aspect of this issue is the fact that these institutions are publicly funded, and so that's what I think introduces a new layer of complexity … when government funding is being accepted and governments have a responsibility to respect the rights of their citizens in the provision of services.

And so that does raise a question for those organizations that are accepting public dollars.

Markusa: I actually read some case law out of the East Coast, I think it was Nova Scotia, where there was a clinic that refused to offer abortions and they had public funding, and the courts actually said because you're publicly funded, you have to revisit this, and they closed down instead. Do you think we could be headed for similar issues here?

Fenske: It's hard to say and again, it all goes back to that accommodating and balancing of rights.

If the courts were asked to wade in, they'll have to assess how best to make sure that both sets of rights are preserved, but again, it's a really difficult thing to say just because it is somewhat uncharted in terms of the institutional response and the connection to the public funding.