The BC Court of Appeal – British Columbia’s highest court – has ruled that Pashta MaryMoon cannot use the title “death midwife” to describe her services. The decision, released August 5, 2020, overturns the October 1, 2019 BC Supreme Court ruling that dismissed an application by the College of Midwives of BC (CMBC) to prevent Ms. MaryMoon from using the title. The BC Court of Appeal’s written decision, from a three-judge panel, permanently enjoins Ms. MaryMoon from using the title “midwife” in contravention of the Health Professions Act (HPA).
The BC Court of Appeal decision is significant for health care regulation in BC, as it affirms the enforceability of section 12.1(1) of the HPA. As that section states: “If a regulation under section 12(2)(b) prescribes a title to be used exclusively by registrants of a college, a person other than a registrant of the college must not use the title, an abbreviation of the title or an equivalent of the title or abbreviation in another language
- to describe the person’s work,
- in association with or as part of another title describing the person’s work, or
- in association with a description of the person’s work.”
Background of the appeal
The title “midwife” is reserved in BC for CMBC registrants. In 2016, CMBC sent Ms. MaryMoon – a non-registrant – a letter that asked her to stop using the title “death midwife”, which she declined to do. Ms. MaryMoon said she has been providing “death midwife” services for more than 40 years, and her work has nothing to do with delivering babies or healthcare. In 2018, CMBC applied for an injunction to prevent her from using the title, on the basis that “midwife” is a reserved title.
The 2019 BC Supreme Court decision found that Ms. MaryMoon contravened section 12.1(1) of the HPA by using the title, but it also declared that this part of the HPA violated her constitutional right to freedom of expression under the Canadian Charter of Rights and Freedoms and therefore had no force or effect. CMBC and BC’s Ministry of Attorney General appealed the decision, which led to a hearing and the release of the BC Court of Appeal decision.
CSHBC’s role as Intervenor
Just as “midwife” is a reserved title, “audiologist”, “hearing instrument practitioner”, “speech-language pathologist”, and speech therapist” are titles reserved for registrants of the College of Speech and Hearing Health Professionals of BC (CSHBC). The BC Supreme Court decision placed the College’s ability to prohibit non-registrants from using those reserved titles into question. CSHBC intervened in the appeal of the death midwife case to ensure that the HPA continues to provide BC health regulatory colleges with the necessary tools to protect the public interest by empowering healthcare consumers to identify who is and who is not a regulated health professional.
The case was also especially relevant to CSHBC given that audiology, speech-language pathology, and hearing instrument dispensing were designated health professions under the HPA on December 15, 2008. Section 12.1(1) of the HPA is particularly important for building public knowledge of health professions that became regulated relatively recently – such as the three professions CSHBC regulates – by promoting a clear association between reserved titles and regulation.
In May 2020, CSHBC applied for and received Intervenor status in the case. Four other BC health regulatory colleges also received Intervenor status: the College of Physicians and Surgeons of BC, College of Psychologists of BC, BC College of Nursing Professionals, and College of Dietitians of BC.
Analysis
The BC Court of Appeal decision notes that the judge in the 2019 BC Supreme Court ruling “appears to have concluded the statute [section 12.1(1) of the HPA] prohibits the use of the word midwife “in any capacity” in relation to any type of work.” The BC Court of Appeal decision notes that CMBC “has it right” in its interpretation of 12.1(1)’s scope, which is that it prohibits “the use of the title, only as a title, in association with any work.”
The decision also notes that CMBC and CSHBC submit “an expansive reading [of 12.1(1)] is necessary to fulfil the purpose of the provision; a broad prohibition on the use of restricted titles is important, they say, in order to make it clear to the public that use of certain titles is strictly limited to members of a regulated profession.”
According to the decision, Ms. MaryMoon’s online use of the title “death midwife” is “in a manner that is not merely descriptive but suggests that she is entitled by some qualification to use the title “midwife”. Therefore, the BC Court of Appeal agreed with the BC Supreme Court chambers judge that Ms. Marymoon contravened s. 12.1(1) of the HPA because of the way she used the reserved title, “midwife”, in association with her work.
Regarding the assertion that the objectives of section 12.1(1) could be achieved without extending the prohibition to those providing services outside of the health care realm, the decision notes that CMBC “submitted that categorical restriction of reserved titles is necessary for professions that are less well‑established. It contends widespread use of a title may make it difficult for the public to ascertain that the use of the title in a health context signifies regulation. This argument was also advanced by CSHBC, which governs professions that were not designated until 2008. It submits the objective of allowing consumers of health care to be able to distinguish between regulated and unregulated health care providers can only be effective once the public comes to associate a particular title with a regulated occupation.”
The decision goes on to say that the impacts of section 12.1(1) include ensuring “health care consumers, can easily identify regulated and qualified health care professionals. This, in my view, is sufficient to conclude that the salutary effects of s. 12.1(1) outweigh the deleterious effects that it has on free expression.
“In conclusion, it is my opinion that the [BC Supreme Court] chambers judge erred in finding that the limit on freedom of expression arising from the enactment of s. 12.1(1) was not demonstrably justified in a free and democratic society.”