Opinion: Health-care language directive is immoral and dangerous

Article content

When Bill 96 strengthening Bill 101 was passed, many worried that access to health and social services in English would be gravely affected. The fear was that Bill 96 would impede effective communication between patients and health and social service providers, which everyone, including the government, knows is an essential component of effective and safe care.

Article content

Premier François Legault denied that potential effect and explicitly promised that health services in English would continue to be delivered as before. The government even took out newspaper ads in the English press to reassure everyone. How hollow these reassurances were became evident recently with the publication of the government’s directive on the situations in which a language other than French may (but not must) be used — compounded by the Office québécois de la langue française’s visits to hospitals, including operating theatres.

Essentially, except in life-and-death emergencies, the government wants to restrict English health and social services to “historic anglophones,” now defined in the directive as “recognized English-speaking persons,” being those who are eligible for English education in Quebec and for whom an eligibility certificate has been issued, and to deny these services to francophones, “non-historic” anglophones and recent immigrants of all origins. Since there are major problems obtaining eligibility certificates because of additional overwhelming demand related to CEGEP admissions, the notion of English identity cards for those who qualify is both uncertain and very restrictive.

Article content

Article content

This is singularly inappropriate in the field of health and social services. There is considerable scientific evidence showing that the access to and outcome of care are seriously affected by the facility of communication with caregivers. Whether you are “historic” or not, whether you know how to speak French or not, it seems obvious that the choice of language belongs to the patient. It is not right for bureaucrats — who are not accountable for health and social service delivery and results — to intervene in the treatment and care of patients, to meddle in life-and-death situations or to decide to listen in as surgeons are operating. Clearly the government is prepared to sacrifice the fundamental constitutional rights to life, liberty and security of the person that exist in both the Quebec and Canadian charters of rights and freedoms in order to fulfil its language goals. That is very disturbing.

In Bill 96, the government has invoked the notwithstanding clause, removing the protection of both charters and making bureaucratic decisions virtually unreviewable by the courts. The notwithstanding clause was inserted into the Canadian Charter of Rights and Freedoms at the insistence of the premiers during the negotiations leading to repatriation of the Constitution in 1982. It was initially presented as an extreme measure to be used in truly extraordinary cases. Under the Coalition Avenir Québec, however, policies that the government is passionate about — language and secularism — have been sheltered from review in this way. This wholesale reliance on the notwithstanding clause is under challenge, but the Quebec Court of Appeal has refused to impose limits on its use, and only the Supreme Court of Canada remains as a possible forum for contestation.

Article content

It must be said in all fairness that Quebec is not the only place where politicians are tempted to bypass fundamental rights by this technique. Both federal and provincial leaders have shown an interest in sheltering their favourite projects and, in the process, normalizing the removal of fundamental rights. But the fervour surrounding language and related issues in Quebec increases the danger exponentially for Quebecers by empowering bureaucrats to make decisions affecting such rights when that is clearly not appropriate or necessary.

The guidelines and policies proposed for health care are profoundly immoral, taking away choice in health and social services and potentially harming patients in the name of political ideology. Making language the preponderant value in society and allowing it to prevail over both individual freedom and the right to physical security is simply not justifiable by any logic. Before Bill 96, the government did not substantially intervene in the delivery of health and social services in English. That was left to the institutions and entities responsible for the delivery of care. The system had many flaws, but the linguistic aspect worked relatively smoothly and did not create any victims by its operation. Why not leave well enough alone?

Article content

We must keep in mind that these rules will apply not only to doctors, for whom they would undoubtedly present a moral and professional dilemma, but also to other caregivers including residences for the elderly, rehabilitation homes, clinics and so on. This directive is likely to reduce the security of vulnerable people facing decisions that are crucial for them.

One can also point to flagrant absurdities stemming from the new language policies. What happens to tourists and visitors who are not “historic anglos”? What happens to a person who falls ill suddenly and does not have their eligibility certificate or card handy? Of course, bureaucrats can issue complex regulations to create exceptions and deal with such situations, but that plunges us further into the arcane world of micro-management of our lives. As precious time ticks by while health and social service providers try to figure out whether they are entitled to communicate effectively, the health, safety and outcomes of the patient decline.

Like most of Bill 96, these provisions restrict the freedoms and basic rights of francophones as well as members of minority groups. A person whose first language is French may nevertheless want to communicate with certain health providers in English or in another language; without legislation, that would be each person’s right. It is unfortunate that these developments have not been sufficiently covered by the French media. Most Quebecers, independently of political views, would not support such coercive and unjust rules, and would not want to be restricted in their own freedom.

If Quebec is to remain the free and progressive society that we have all appreciated, the violation of human rights in the name of nationalism must end. Health and social services are no place for discrimination and linguistic debates.

Julius Grey is a lawyer experienced in constitutional and linguistic matters. Eric Maldoff, C.M., is a partner at Lapointe Rosenstein Marchand Melançon experienced in health and linguistic matters.

Article content

Article content