B.C.’s Court of Appeal says self-described death midwife Pashta MaryMoon can’t use that title.
The B.C. woman has been providing support services to the dying and their families for more than 40 years.
The Aug. 5 decision overturns a B.C. Supreme Court Justice Neena Sharma’s 2019 decision where the judge rejected the College of Midwives of British Columbia’s objection to her using the term.
Sharma did find MaryMoon’s use of the title violated B.C.’s Health Professions Act. But, she said, that means the act violates the constitutional charter right to freedom of expression.
So, Sharma declared part of the legislation unconstitutional allowing MaryMoon use of the term.
MaryMoon argued she was not violating the legislation governing the college because her work has nothing to do with pregnant women or delivering babies.
The court heard she has been providing what she calls “deathcare services” for more than 40 years, that “death midwife” is “the only title” that she uses to identify her vocation as a “deathcare provider.”
The college and B.C’s Ministry of Attorney General both appealed.
They asserted the Supreme Court of Canada has ruled that a statute reserving titles does not infringe on freedom of expression. Further, they said, Sharma’s constitutional declaration was too broad.
Where Sharma erred, appeal court Justice Peter Willcock said in the unanimous decision of three judges, was her conclusion that the statute prohibits the use of the word midwife “in any capacity” in relation to any type of work. The attorney general argued the statute prohibits the use of the title in any way in relation to work in a health profession while the college said it prohibits the use of the title, only as a title, in association with any work.
“I am of the opinion the college has it right,” Willcock said.
In explaining his reasoning, Willcock said MaryMoon refers to herself as a “death midwife” on twitter and as “a practicing death midwife” and “end of life consultant and death midwife” on online biographies.
So, he said, she uses the term “in association with or as part of another title describing her work, and in a manner that is not merely descriptive but suggests that she is entitled by some qualification to use the title ‘midwife.’ Describing herself as a ‘practising’ death midwife suggests that there are ‘non-practicing’ death midwives; that is, people who are qualified, and entitled to use the designation, but are not doing so.”
Willcock also overturned Sharma’s declaration that the act was unconstitutional. He said such titles exist so a “vulnerable group” such as “health care consumers” can easily identify regulated and qualified health care professionals.”
“I would grant the order sought by the college permanently enjoining Ms. MaryMoon from using the title midwife in contravention of that section (of the act),” Willcock said.
MaryMoon received formal training as a death midwife in the USA in 2013, worked as a lay minister with Ottawa’s Unity Church and, during the 1980s, helped care for people suffering from HIV/AIDS.
In 2004, she co-founded Pagan Pastoral Outreach, which included on its website death midwifery as a form of pastoral care.
She is also a founder and the executive director of the Canadian Integrative Network for Death Education and Alternatives (CINDEA), which, in 2016, received a letter from the college asking her to stop using the term it claimed is registered to it.
The college argued the term ‘midwife’ is part of a reserved title system and its use implies registration with a professional association.
The college argued in court that people might believe a ‘death midwife’ was a college member or a health professional.
Sharma disagreed, saying what MaryMoon does is understood and clear.
“Among other things, the disclaimers are frequent on the website and make that point clearly. Moreover, the website is so clearly devoted to topics related to death,” Sharma said.
Sharma also agreed on MaryMoon’s right to describe herself as she does.
“In my view, when the respondent refers to herself as a ‘death midwife,’ there can be no doubt that she is conveying meaning,” Sharma said.
And, she explained, that means it is a freedom of expression issue.
B.C.’s Ministry of Attorney General intervened in the case, submitting the legislation does not infringe freedom of expression but, if it does, that infringement is reasonable according to the Charter of Rights and Freedoms.
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