College loses bid to ban B.C. woman calling herself "death midwife"
Credit to Author: Keith Fraser| Date: Wed, 02 Oct 2019 23:06:50 +0000
The College of Midwives of B.C. has lost its bid to ban a Victoria woman from describing herself as a “death midwife”.
In 2016, the college, which regulates the province’s midwives, sent Pashta MaryMoon a letter asking her to stop using the term, which she says refers to her providing help to people who are dying, but she declined to do so.
The college then went to court seeking an injunction to stop MaryMoon, but in a ruling posted online Wednesday, B.C. Supreme Court Justice Neena Sharma dismissed the college’s application and struck down as unconstitutional the applicable law.
“I’m delighted that the judge decided that I succeeded in proving my case,” said MaryMoon. “My lawyer was very much a part of that. We have always thought from the beginning that (the law) was unnecessary and restrictive, so I’m happy about the judge concluding that it has no force or effect.”
The judge did find that MaryMoon, who is not a member of the college, had violated the Health Professions Act by her use of the term “midwife” on a website entitled Dying With Dignity Canada and on social media.
The section of the act in question prevents a person from using the term midwife in association with or as part of another title describing a person’s work.
But in a 37-page ruling, the judge said it was also clear that the legislation itself was unconstitutional because it violated MaryMoon’s right to freedom of expression.
Sharma noted that the Supreme Court of Canada has been “very clear” that short of physical violence or threats of violence, any activity that conveys meaning is protected expression.
“As soon as an action is capable of communicating anything to another person, it has meaning and is protected expression. In my view, when the respondent refers to herself as a ‘death midwife’ there can be no doubt she is conveying meaning.”
The college and the Attorney-General of B.C., which both made submissions in court, argued that the law should not be struck down because it was “measured” and appropriately tailored to address the public health issues regarding the regulation of health professionals and avoided confusion about who is regulated.
But MaryMoon pointed to articles, dictionary definitions and other material which discuss end of life care, some of which use the word midwife.
“The point of that evidence is to demonstrate that the word midwife is not restricted to the care of pregnant women before and during childbirth,” said the judge. “That point is relevant because the presumed association between midwife and pregnant woman and delivery is an underlying tenet of the College’s submissions.”
The judge highlighted the fact that there was no explanation for the province of B.C. choosing in 2008 to broaden the prohibition on the use of reserved titles in health care professions.
She said that she was unable to conclude that the law minimally impairs freedom of expression and dismissed the college’s application for the injunction.
College registrar Louise Aerts said the ruling was “still pretty new and fresh,” but added that the college is concerned with the decision and the potential impact on public safety.
“At this stage, we’re reviewing the implications and very carefully considering our options to move forward, including legal action.” She said an appeal is possible.
The College of Physicians and Surgeons of B.C., which was an intervenor in the court case, indicated in an email that it is also considering its options on how best to proceed.
There are about 360 midwives registered with the college. They have a caseload of clients and newborns from early pregnancy though to six weeks postpartum.