Introduction and relevant provisions
This piece summarises the changes proposed by the Religious Freedom Bills (Religious Discrimination Bill 2019, Religious Discrimination (Consequential Amendments) Bill 2019, Human Rights Legislation Amendment (Freedom of Religious Bill) 2019) in the context of conscientious objections by health practitioners. It also addresses the current position regarding conscientious objections and the potential impact of the proposed provisions.
The Religious Freedom Bills prohibit discrimination on the ground of religious belief or activity in key areas of public life.1 Discrimination can be both direct, or indirect.2 Indirect discrimination, which is most relevant for our purposes, is defined as follows:
“A person discriminates against another person on the ground of the other person’s religious belief or activity if:
- The person imposes, or proposes to impose, a condition, requirement or practice; and
- The condition, requirement or practice has, or is likely to have, the effect of disadvantaging persons who hold or engage in the same religious belief or activity as the other person; and
- The condition, requirement or practice is not reasonable.”3
The second exposure draft of Religious Discrimination Bill 2019 (the Bill) defines a new health practitioner conduct rule, designed to encompass “a condition, requirement or practice:
- That is imposed, or proposed to be imposed, by a person on a health practitioner; and
- That relates to the provision of a health service by the health practitioner; and
- That would have the effect of restricting or preventing the health practitioner from conscientiously objecting to providing or participating in that kind of health service.”4 (own emphasis)
Health practitioner is defined as a person who is registered or licensed to provide a health service. Meanwhile, health service involves the provision of medical, midwifery, nursing, pharmacy and psychology services.5
Inconsistent with conscientious objection enshrined in law
The Bill provides that a health practitioner conduct rule which is inconsistent with the law of a State or Territory which allows a health practitioner to conscientiously object to providing or participating in a particular kind of health service because of a religious belief or activity held or engaged in by the health practitioner (for example, voluntary assisted dying or abortion), is not reasonable and in effect amounts to indirect discrimination against a practitioner.6
Necessary to avoid unjustifiable adverse impact
A health practitioner conduct rule will also be considered “not reasonable” unless it is “necessary to avoid an unjustifiable adverse impact (own emphasis) on:
- The ability of the person imposing, or proposing to impose, the rule to provide the health service; or
- The health of any person who would otherwise be provided with the health service by the health practitioner”7
The prohibition on the imposition of a health practitioner conduct rule of this kind applies to “any person” and therefore extends to employers and regulatory bodies, such as the Australian Health Practitioner Regulation Agency (AHPRA) and the National Boards.
Impact of provisions -v- Current guidance on conscientious objection.
In determining whether there has been indirect discrimination against a health practitioner, the first scenario outlined above (Inconsistent with conscientious objection enshrined in law) is unlikely to have much of an impact on the current state of play. In other words, it will be relatively straight forward to assess whether a health practitioner conduct rule is inconsistent with a law of a State or Territory which provides for conscientious objection.
However, the second scenario outlined above (Necessary to avoid unjustifiable adverse impact) may create ambiguity and tension for health practitioners, persons imposing health practitioner conduct rules and arguably patients.
As we understand it, the second scenario applies where a health practitioner conduct rule ostensibly compels a health practitioner to act in a certain way, contrary to his or her religious beliefs, but will not be considered “not reasonable” because it is necessary to avoid an unjustifiable adverse impact.
“Unjustifiable adverse impact” appears to encompass those situations where the refusal of a health practitioner to act in a particular way, because of his or her religious beliefs, would have an impact which could not be justified when considered against the broader needs of the community and the rights of patients under other discrimination laws. Arguably, a general practitioner refusing to prescribe contraception to single women would be considered as an “unjustifiable adverse impact,” as this is effectively “bread and butter” GP work. The Bill cites this as an example which would also arguably constitute discrimination (to that group of people) pursuant to the Sex Discrimination Act 1984. On the other hand, a general practitioner refusing to participate in voluntary assisted dying8 is far less likely to have an unjustifiable adverse impact given the numbers involved are much smaller.
Broadly speaking, the Bill appears to strengthen a health practitioner’s right to conscientiously object to providing certain health services. This is demonstrated by looking at the current position on conscientious objection.
At present, the guidance regarding a health practitioner’s right to conscientiously object is found in the “Good medical practice: a code of conduct for doctors in Australia” (the Code), published by AHPRA together with the National Boards. In particular, the Code provides that good medical practice requires:
“2.4.6. Being aware of your right to not provide or directly participate in treatments to which you conscientiously object, informing your patients and, if relevant, colleagues, of your objection, and not using your objection to impede access to treatments that are legal.
2.4.7. Not allowing your moral or religious views to deny patients access to medical care, recognising that you are free to decline to personally provide or participate in that care.”9
The Code was referred to by AHPRA in its submissions to the Australian Attorney General on the Bill. AHPRA submitted that the Code and the current regulatory arrangements within the National Scheme appropriately addressed where religious freedoms of registered health practitioners may impact on patient care or access to health services.
Of note, AHPRA submitted that the proposed “broad” approach introduced by the Bill could restrict access to health services provided by health practitioners for example, in situations where a practitioner is located in a rural or remote community and may object on religious grounds to prescribing or dispensing medications, which could in turn impact the health and well-being of the community where services cannot be accessed from another health provider.
The Bill (or at least the provisions referred to above) could create a tension between potential indirect discrimination against a health practitioner and a health practitioner’s obligation to providing patient care (particularly in emergency/urgent care settings). However, sensibly interpreted, the “unjustifiable adverse impact” exclusion should limit circumstances where this tension is realised on a practical level.
Of course this raises the inevitable question as to whether this may in turn result in a rise in complaints and/or whether it may change the dynamic of a potential claim against a practitioner where a patient has suffered an adverse outcome after being denied access to treatment on conscientious objection grounds.
Where to next – watch this space
Submissions on the second exposure draft to the Attorney General of the Australian Government closed on 31 January 2020. As over 6,000 submissions were received by the Attorney General, we anticipate it will take some time for the Bill to be introduced to Parliament.
We will report further if the Bill is passed and enacted. In the meantime, if you are faced with a situation where the introduction of the Bill may impact you and/or your members and would like further advice, please feel free to contact us for further advice.
This article was written by Sophie Pennington, Partner and Jessica Jones, Senior Associate.
1 Religious Discrimination Bill 2019, Second Exposure Draft, Explanatory Notes.
2 S7 and 8, Religious Discrimination Bill 2019, Second Exposure Draft.
3 Section 8(1) of the Religious Discrimination Bill 2019, Second Exposure Draft
4 Definitions section, Religious Discrimination Bill 2019, Second Exposure Draft.
5 Of interest, the first exposure draft was much broader and included for e.g. dental (not including dental therapists or hygienists), medical radiation practice, occupational therapy, optometry, physiotherapy and podiatry.
6 Section 6 of the Religious Discrimination Bill 2019, Second Exposure Draft
7 Section 8(7) of the Religious Discrimination Bill 2019, Second Exposure Draft
8 Presuming, for a moment, that the right to maintain a conscientious objection was not enshrined in law.
9 However, we note the guidelines only relate to doctors and the Bill proposes to cover nursing, midwifery, pharmacy and psychology health services.