Friday, November 27, 2020

Advocacy and Informed Consent for Health Interventions: Masks, Temperature Screening, Hand Sanitizer, COVID19 Swabbing, Testing and Vaccines

Author: Tracey Young. (Nov. 23, 2020). Informed Consent for Health Interventions: Masks, Temperature Screening and Hand SanitizerCanadian Advocacy Centre for Health, Safety & Justice. Retrieved from: https://canadianadvocacycentre.blogspot.com/2020/11/advocacy-and-informed-consent-for.html.

[Edited on December 5th, 2020 to include information about COVID-19 swabbing, testing and vaccines].

Disclaimer: I am not a lawyer. I am a public interest advocate, writer, and publisher. In this article, I will provide an introduction to informed consent regarding health interventions in Canada. If you have additional questions about these legal matters, I suggest that you seek legal advice from a lawyer practicing in your province, or territory. You may be able to find free legal advise by contacting a Pro Bono organization in your province/territory. See a list here

Introduction

2020 has been a turning point in many ways. This is nowhere more obvious than the issue of coercive use of health interventions, including masks, temperature screening, and the use of hand sanitizer as screening measures to enter different environments, including businesses, and health care settings. All of these, or a combination of these health interventions, are being forced on members of the public by businesses, and organizations under the guise of stopping the spread of COVID-19. 

New: Different phases of health interventions related to COVID-19 have been planned for Canadians by our provincial and federal governments health authorities. The next phase appears to be a plan to engage in the health intervention of the use of mass swabbing and testing of citizens for COVID-19. 

The phase after that will include the administration and use of COVID-19 vaccines. 

If you do not consent to you, your minor children, or individuals you are the guardian for to be swabbed, tested or administered a COVID-19 vaccine then ensure that you clearly state to any and all authorities who are involved in these actions:

 I DO NOT CONSENT under my provincial Health Consent Legislation, or the Canadian Charter of Rights and Freedoms.

In this article, I will review core components of informed consent for health interventions and how people can learn about informed consent in their province, or territory. I will also provide some practical suggestions for how people can approach informed consent in different settings. I will conclude with some ideas for advocacy on the issue of informed consent regarding health interventions. 

Informed Consent

Informed consent is a foundation in the use of health interventions. It is also a civil right. Every province and territory in Canada has laws that require peoples' civil rights to autonomy, capability, and self-determination in decision-making regarding providing informed consent, or refusal to use, or participate in health interventions.

Mandates, orders, by-laws and rules being made by businesses, organizations, and different levels of government all violate informed consent laws, because they have removed consent and are coercing and forcing people, often under duress, to use these health interventions in order to access businesses, or services.    

I will use B.C., my home province, as an example to outline how informed consent is articulated by the B.C. government in legislation. The B.C. government articulates civil rights to Informed Consent through at least two specific pieces of legislation: 

1. The Health Care (Consent) and Care Facility (Admission) Act (1996).

2. The Adult Guardianship Act (1996).

The Health Care (Consent) and Care Facility (Admission) Act (1996) explicitly defines and and outlines key concepts related to health care consent in B.C.  

Source: B.C. Government (1996). Health Care (Consent) and Care Facility (Admission) Act. Retrieved from: https://www.bclaws.ca/civix/document/id/complete/statreg/96181_01.

Definitions

1 "health care" means anything that is done for a therapeutic, preventive, palliative, diagnostic, cosmetic or other purpose related to health

Presumption of capability

3 (1) Until the contrary is demonstrated, every adult is presumed to be capable of

(a)giving, refusing or revoking consent to health care, and

(b)giving or refusing consent to admission to, or continued residence in, a care facility.

Consent rights

4 Every adult who is capable of giving or refusing consent to health care has

(a)the right to give consent or to refuse consent on any grounds, including moral or religious grounds, even if the refusal will result in death,


(b)the right to select a particular form of available health care on any grounds, including moral or religious grounds,


(c)the right to revoke consent,


(d)the right to expect that a decision to give, refuse or revoke consent will be respected, and

(e)the right to be involved to the greatest degree possible in all case planning and decision making.


Key Concepts & Principles of Informed Consent

➤ Assumption of capability and capacity to make decisions and consent to health interventions, or to refuse to consent and participate in the health intervention

➤ Autonomy and self-determination in decision-making about health interventions

➤ Being told what the health intervention is and what it is for

➤ Being told what the benefits of the health intervention are

➤ Being told what the risks and/or potential side effects, or adverse outcomes could be associated with the health intervention 

➤ Being able to understand the information provided about the health intervention (having capacity and capability)

➤ Voluntary nature of consent 

➤ Coercion, duress, or pressure to participate in health interventions is unethical, violates individuals' civil rights, and is unlawful under provincial and federal laws and international agreements that Canada is a signatory to.

References 

Wagner, R. A. (2020). Informed Consent Form and Important... Emedicine Health. Retrieved from: https://www.emedicinehealth.com/informed_consent/article_em.htm.

McNally, W.E. and Bottom Line Research and Communications. An Overview of the Law Regarding Informed Consent. Bottom Line Research and Communications. Retrieved from: http://www.bottomlineresearch.ca/pdf/informed_consent.pdf.

Vaccine Choice Canada. Canadian Medical Law – Informed Consent & Your Rights. Retrieved from: https://vaccinechoicecanada.com/exemptions/canadian-medical-law-informed-consent-your-rights

Actions Involved in Health Consent

1. Giving explicit consent (saying 'yes') to use, or participate in a health intervention.

2. Refusing consent (saying 'no') to use, or participate in a health intervention.

3. Revoking, cancelling and withdrawing consent (saying you want to 'stop' and/or 'cancel') your participation in a health intervention.

Source: Nidus (2020). Health Care Consent in BC: Your Rights and the Law. Retrieved from: http://www.nidus.ca/PDFs/Nidus_HealthCareConsent_YourRights-BC.pdf.

Find out more about Health Care Consent, Your Legal Rights & the Law in B.C.

Health Care Consent in BC: Your Rights and the Law

Visit Nidus.ca to find out more about the following in BC:

  • Health Care rights

  • Personal and Financial Planning

  • Advanced Care Planning

  • Representation Agreements

  • Power of Attorney documents

Adult Guardianship Act (AGA) in B.C.

The AGA also outlines legal rules regarding personal autonomy, self-determination and the right to make personal and health-related decisions and have those decisions respected by others.  

Guiding principles


2 This Act is to be administered and interpreted in accordance with the following principles:


(a)all adults are entitled to live in the manner they wish and to accept or refuse support, assistance or protection as long as they do not harm others and they are capable of making decisions about those matters;

Presumption of capability

3(1) Until the contrary is demonstrated, every adult is presumed to be capable of making decisions about the adult's personal care, health care and financial affairs.


Source: B.C. Government. (1996). Adult Guardianship Act. Retrieved from: https://www.bclaws.ca/civix/document/id/complete/statreg/96006_01.

Find the Health Care Consent Legislation in Your Province/Territory

Search 🠞 Province/Territory Health Care Consent law

Search 🠞 Province/Territory Adult Guardianship law

Note: When you find the legislation, look for sections that specifically discuss the following topics:

  • Consent and/or Informed Consent

  • Autonomy

  • Self-determination

  • Decision-making

Health Authorities 

  • Each province and territory in Canada has legislation that outlines what organizations are considered "health authorities." 

  • In B.C. the Health Authorities Act (1996) outlines what those are by law. 

Source: B.C. Government (1996). Health Authorities Act. Retrieved from: https://www.bclaws.ca/civix/document/id/complete/statreg/96180_01.

Search 🠞 Province/Territory Health Authority Act

Video: Your Rights to Decline Mandatory Covid Measures with Rocco Galati. (Oct. 20, 2020). Constitutional Rights Centre. Youtube. Retrieved from: https://www.youtube.com/watch?v=Q3wWxJ5L9Pk.

Description: In this media presentation, we cover your common-law, statutory, international, and constitutional rights against mandatory medical procedure and/or treatment without expressed, informed, consent in the context of Covid: Vaccines, Testing, Masking and Contact Tracing. 

Businesses and Organizations are Not Health Authorities or Health Care Settings

Masking rules, mandates, and orders have been made across Canada that are forcing people to wear masks, submit to temperature screening, and/or use hand sanitizer or citizens may/can be refused access and entry to shop, receive health care services, or use the premises. 

Wide spread coercion of health interventions for wearing masks, submitting to temperature screening, and/or use hand sanitizer is occurring in Canada. If people refuse, they are sometimes being denied access to health care, businesses, and other services. This constitutes violations of peoples' right to informed consent AND in many cases, this discrimination and denial of services are violations of human rights laws in the provinces/territories.  

There are no laws enacted by the Canadian government for masks, temperature screening or hand sanitizer. However, there are rules, and policies they have made for federal buildings, and places like points of entry to Canada, such as airports, or customs offices. 

The majority of the rules, by-laws, mandates and orders are being made in the provinces and territories by:

  • City councils in the form of by-laws
  • Provincial and territorial public health and public safety orders and mandates

  • Health authority licensing organizations
  • Workers Compensation Boards 
  • Private businesses and organizations

Challenging and Not Consenting to Health Intervention Rules

Although I am not a lawyer, it is my perspective as a public interest and human rights advocate that these rules, mandates and orders can be challenged, and that consent can be refused for the following reasons:

1. Informed consent for the use of health interventions is a civil and constitutional right that is protected by law in every province and territory in Canada. As Canadians, we cannot be coerced, pressured, or forced under duress to use, participate in, or endure health interventions we do not freely, and voluntarily consent to. If we are, then provincial, federal, and international laws have been broken by whomever violated our rights. 

2. Private businesses, and other types of non-health bodies, and organizations are not legally entitled, under any provincial/territorial, or federal laws to enact, coerce, or force people to submit to individual or public health interventions. Doing so violates our civil and human rights to legally provide informed consent, or refuse consent, under provincial human rights laws, and for governmental organizations, the Canadian Charter of Rights and Freedoms

3. There is no substantive peer-reviewed evidence-based science and research that demonstrates that these health interventions (masking, temperature screening, or hand sanitizer) stop the transmission of infectious diseases, including coronavirus' such as COVID-19. 

4. There have been several legal cases (labour relations arbitrations) in Canada that have struck down coercive masking and vaccination policies made by health employers because they were unable to produce substantive evidence-based research that demonstrated masks, or vaccines, prevented the transmission of infectious diseases, including infections. See more here

Sources: Government of Canada. (1985). Canada Health Act. Retrieved from: https://laws-lois.justice.gc.ca/eng/acts/c-6/page-1.html.

Government of Canada. (1982). Guide to the Canadian Charter of Rights and Freedoms. Retrieved from: https://www.canada.ca/en/canadian-heritage/services/how-rights-protected/guide-canadian-charter-rights-freedoms.html

Young, T. (Nov. 22, 2020). Civil & Human Rights Laws, Commissions and Tribunals in Canada and How to Document Discrimination for Filing Human Rights ComplaintsCanadian Advocacy Centre for Health, Safety & Justice. Retrieved from: https://canadianadvocacycentre.blogspot.com/2020/11/civil-human-rights-laws-commissions-and.html.

Canuck Law. (2020). CV #58: Vaxx Or Mask Rulings (2015, 2016 & 2018); Bonnie Henry Testifies; BC Ombudsman Report. Retrieved from: https://canucklaw.ca/cv-58-vaxx-or-mask-rulings-2015-2016-2018-bonnie-henry-testifies-bc-ombudsman-report/.

CBC News. (2019). B.C. nurses no longer need to get flu vaccine or wear masks, can rely on 'professional judgment'. Retrieved from: https://www.cbc.ca/news/canada/british-columbia/b-c-nurses-no-longer-required-to-get-flu-vaccine-or-wear-mask-1.5384902.

What Do I Do If I'm Being Denied Access and Entry to a Business, Health Care Setting, or Organization if I Can't, or Won't Consent to Health Interventions

If you are trying to enter a business and they advise you cannot enter unless you mask yourself (or your children), or be temperature screened, or use hand sanitizer, in a calm, clear and polite manner state: "I do not consent to wear a mask/be temperature screened/use hand sanitizer.

The individual who is making this request will most likely tell you that these are required measures and that you may not be able to enter the business/organization unless you comply with these health interventions. 

➤ Turn the video on your phone on and record the interaction if you can, or have someone with you who can record the situation. 

➤ Remain calm, polite, and stand your ground with confidence, determination and strength. Do not let "flying monkeys" (bad actors) trigger you, or try to get you to escalate. 

Explain that all of these requirements are legally considered health interventions and that under your provincial/territorial laws that the business/organization does not have the legal authority to force you to consent to health interventions. At this point, its a good idea to suggest they get their manager, or the business owner to discuss the situation further. 

➤ Explain that you are exempt from wearing a mask for health and/or medical reasons, and/or disabilities and conditions and that these are (most likely) outlined in the orders, or by-laws they are being told to enforce. Ask if they are aware of the requirements around health exemptions. 

➤ You cannot legally be asked what your health exemptions, or to produce an "exemption" letter, or "proof." This violates your human rights AND your privacy rights and you can explain that to the person. You can explain this if you are asked for details, or a letter about yourself (or a loved one). 

➤ Ask the screening person for their full legal name and cell phone number. Tell them that if you decide to file a human rights complaint for discrimination that you will have to name them in that complaint, and call them as a witness because they are discriminating against you. Reassure them that is your only reason for asking for this and you will keep this information safe and secure. 

➤ Ask to speak to the manager/supervisor, and/or owner of the business, or organization so that you can explain that you do not consent to these health interventions, to discuss health exemptions, and advise why the business cannot discriminate against you for mental, or physical health disabilities and conditions and that they are required to follow the human rights laws in your province/territory. 

Ask if this business/organization is considered a Health Authority under provincial/territorial legislation. 

Ask if they can tell you the potential benefits and/or side effects, and/or risks associated with wearing masks/temperature screening, and/or hand sanitizers.

Ask if they are aware that Health Canada has a list of approved hand sanitizers and has re-called several different brands in 2020. Ask if they have reviewed the list to ensure they are not violating the recall by forcing customers to use unsafe and toxic products and substances. 

Ask where the specific screening measures and rules they are using came from to determine who is responsible for them.   

Ask if the Workers Compensation Board has required them to have customers/patients wear masks, be temperature screened, or use hand sanitizer. 

➤ Ask if the business/organization can show you, or provide you with a copy of their approved "COVID-19 Safety Plan", or if it is available on their website.

➤ Explain to the manager/supervisor that under human rights laws businesses/organizations cannot discriminate against anyone, and that they have a legal duty to accommodate you. Explain that failure to comply with your legal right to consent, or refuse consent to these health interventions can/may lead to legal action in the form of a human rights complaint against them and the business/organization. 

➤ You may want to explain human rights complaints are expensive, time consuming, and in case like these will damage the reputation of business/organization, employees, and may end up leading to damages for "Injury to Dignity" due to the discrimination the business/organization has carried out toward you. 

➤ Request that the manager/supervisor provide you with a copy of the business/organization's COVID-19 safety policies regarding entry to their business, (such as the requirements for masks, or other screening measure). Ask if their policies have exemptions listed in their policies, and advise that their policies are required to comply with the human rights laws and whether they are aware of that.  

➤ Request that they provide you with the name, phone number, and email address for an executive-level manager, or owner of the business/organization so you can contact them to file a formal complaint about how you were treated, that you were discriminated against, and to request the policy about entry to the business/organization. 

➤ Ask staff, managers/supervisors if the business owner/employer has provided them with any training about human rights laws and duty to accommodate, and health consent laws in your province/territory. 

➤ Consider asking other witnesses to the interactions for their names and contact information if you decide to file a complaint. 

➤ Document the date, time, names of participants (store staff and manager) and witnesses, and the discussions and events as they unfolded in a factual, objective, concise, but detailed way as soon as you can so the details are fresh. Record answers to your questions, such as whether the employer has provided training to staff on the human rights laws, duty to accommodate, health exemptions, health consent laws, and Workers Compensation Board involvement. 

If anyone starts to escalate toward you, and threatens to call the police leave the premises immediately for your own safety.

If the police attend the scene, try to remain calm, and explain that you do not consent to the coercive health interventions you have been told you must use. Explain that you have health exemptions, and that you simply want your civil and human rights to be respected and to be able to [shop for food/get your medications and necessities like any other person].

Politely request the name and badge number of the police officer and advise that you are requesting this information because you may call them as a witness if you decide to file a human rights complaint against the business/ organization for discriminating against you and violating human rights legislation.  

What Kind of Complaints Can I File About Denial to Access Businesses, or Organizations Because I Will Not Consent to Health Interventions

There are several types of complaints you can make: 

Write an email, or written letter of complaint to the local store manager, business owner, and/or corporate head office in your province/territory, or in Canada about your experience and advise them they have no legal authority to force health interventions on you (using the name and language of your specific legislation), and/or that they must respect your health exemptions (ensure you clearly noted you were exempt) under your provincial/territorial laws. In a respectful, clear, and concise way explain how this experience and situation impacted you, and/or your family. 

Write an email, or written letter of complaint to your MLA and MP in your jurisdiction, and ensure you copy them on any complaints you make about local businesses, or corporate chains that discriminated against you and denied you access, or service. In a respectful, clear, and concise way explain how this experience and situation impacted you, and/or your family. 

Your MLA & MP, and the staff in their offices are responsible to constituents. Ask for their help, advocacy and support to ensure all provincial and federal laws are being respected by businesses and organizations in your province/territory and people are not being discriminated against. 

Consider filing a formal complaint about a registered health care professional who denies you access to health care services for not complying with their coercive demands to use health interventions (masks, that you do not consent to. 

SearchHealth Care College/Association - Province/territory 

For example: Physicians and Surgeons College BC 

Carefully review the reasons and process for filing complaints because they are often quite complex. Fair warning, complaints made about health care professionals often take a very long time to go through, so be prepared for this.   

Consider filing a formal complaint with your local public health authority about their role in all of these rules. Ask them why their rules for businesses are not compliant with provincial/territorial human rights and health consent laws. Briefly share your experience and how you, and/or your family have been discriminated against, and the impacts of this on you. 

Search ➤ Region Health Authority public health officer 

Conclusion

At this time there are numerous law suits that have been filed against different provinces, against the Canadian government, and city governments over the unconstitutional nature of the by-laws, orders, and actions taken by different levels of government under the guise of "managing" COVID-19. These will all take some time to strike these things down as the courts move very slowly, and these are complex legal cases. 

There are likely hundreds of human rights cases that have been filed across Canada due to the discrimination people with disabilities have been facing because they are unable to wear masks, their health exemptions not being respected and accommodated, and being denied the right to buy food, medications, and other necessities. Denying people the right to equal and fair treatment, inclusion and to fully participate in Canadian society is not consistent with Canadian values, principles, or laws.

I am part of vast networks of people all across Canada who are working to support others who are experiencing individual and systematic violations of their human rights, and their civil and constitutional rights under the provincial and territoral human rights laws, and the Canadian Charter of Rights and Freedoms

I invite you to email me @ canadianadvocacycentre@gmail.com if there is a particular topic you would like me to write an article about in the area of civil and human rights that would be helpful to others, and to the public interest. 

Resources

Council of Canadians with Disabilities

Link: http://www.ccdonline.ca/en/

Canadian Network for the Prevention of Elder Abuse (CNPEA)

Link: https://cnpea.ca/

Health Gateway: Links to Organizations that Support People with Chronic Health Conditions and Disabilities in Canada

Link: http://www.healthgateway.ca/en/LinksAgenciesOrganizations

Pro Bono Canada - Contacts for free legal services in Alberta, B.C., Ontario, Quebec, and Saskatchewan.

Link: https://probonocanada.org/legalhelp/

United Nations Convention the Rights of Persons with Disabilities (CRPD)

Link: https://www.un.org/development/desa/disabilities/convention-on-the-rights-of-persons-with-disabilities.html

Young, T. (Nov. 22, 2020). Civil & Human Rights Laws, Commissions and Tribunals in Canada and How to Document Discrimination for Filing Human Rights ComplaintsCanadian Advocacy Centre for Health, Safety & Justice. Retrieved from: https://canadianadvocacycentre.blogspot.com/2020/11/civil-human-rights-laws-commissions-and.html.

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