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Religious discrimination bill violates healthcare rights

Religious discrimination bill violates healthcare rights

By Karin Derkley

Discrimination Health Human Rights 

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Patients may be denied the medical treatment they need and public hospitals may be in breach of their duty of care to patients if employees are allowed to refuse to treat a person on the basis of their religious beliefs as proposed in the Religious Discrimination Bill, the LIV has warned.

In its memo to the Law Council of Australia in response to the Second Exposure Draft of the Bill, the LIV says the proposed legislation fails to address the LIV's previous concerns about the impact of the legislation on human rights and that it privileges religious expression over discrimination protections and patient health.

The new bill was drafted by the federal government after the original legislation was criticised by religious groups as well as human rights advocates.

Among other provisions, the bill gives doctors, pharmacists, midwives, nurses and psychologists the right to refuse to perform certain procedures or dispense certain drugs on the basis of their religious beliefs, even if they are working within the public health service.

LIV Health Law Section chair Stephen Taffe says the proposed legislation presents a risk that patients will not be able to access the treatment they need. "Without access to lawful treatment, patients will suffer," he says.

The LIV has called for safeguards to ensure people receive the medical treatment they need. These include that a health practitioner who objects to a particular health service because of a religious belief must inform the patient of their objection, and must refer them to another health practitioner who does not have a conscientious objection.

That can be difficult in a small regional town where there may be a narrow window of opportunity for a patient to find alternative options. "For someone who needs the morning after pill, for instance, they may have to be referred to another town or even to Melbourne," Mr Taffe says.

LIV Health Law Section member Trudy Ararat says it is "completely inappropriate" that health service employees should be able to hold their own religious views above the patient they are supposed to be caring for.

"How health professionals conduct themselves should be a matter for their professional bodies, and they are quite clear on what is and isn't appropriate when it comes to treating patients."

Such a measure also exposes the health system to risk under the Charter of Healthcare Rights, she points out.

"How a hospital's duty of care to its patients interacts with this proposed bill has clearly not been contemplated. Someone could theoretically refuse to treat people who are HIV positive because they don't believe in homosexuality, or won't treat someone with Hepatitis B because they believe God doesn't like IV drug users."

"But the hospital will still be held liable for any injuries sustained by that patient as a result of that interaction. Even if the employee has impunity under the religious freedom bill, we still have a duty of care to provide care from a medical point of view."

"How is an employee in a public hospital anywhere in Australia entitled to put their own religious beliefs ahead of the Australian Charter of Health Care rights?"

Mr Taffe says "patient needs should prevail over the right to unreasonable discrimination to refuse treatment on the basis of religion".

The LIV's memo also pointed to the implications of the proposed legislations for the sporting sector, allowing discriminatory behaviour such as a team refusing to play against a LGBTIQ associated team, or refusing to shake another person's hand because of their religious background.

The LIV is also concerned about the use of social media by players, officials and spectators to make harmful statements of belief.

LIV Human Rights Committee member and Liberty Victoria vice-president Jamie Gardiner says the legislation "purports to give so-called statements of belief or religious expression absolute precedence preventing any other law, discrimination or otherwise from placing limits on it".

"It is probably not constitutionally valid because it is contrary to our international obligations around human rights and freedom of religion, and it is an insult to the majority of ordinary decent believers in any of the religious faiths because it suggests those people intend to impose their religion on other people."

"It should not be presented to parliament in the current form and, if it is, it should not pass."

Read the LIV's memo to the LCA here.


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