Religious Neutrality in Recovery

With the legalization of cannabis in Canada, and greater transparency around the use of drugs, public health officials have greater interest in tracking the use and dependence of the population on various substances.

The 2017 Canadian Tobacco, Alcohol and Drugs Survey, which is conducted every 2 years, found that the prevalence of one of six illegal drugs was 15%, or 4.5 million people. At the time, cannabis was still illegal, and many researchers intend to observe whether the vast majority of these people, 4.4 million, increase or remain the same after legalization.

The survey found that alcohol use was far more prevalent, with 78% of Canadians reporting use over the past year, roughly about 23.3 million people. Of these people, approximately 21% drink more than 10 drinks for women / 15 drinks for men, and 15% drink acutely, defined is drinking more than 3 drinks on any occasion for women / 4 drinks for men.

These thresholds are used to identify low-risk guidelines for alcohol drinking. Because alcohol use is typically more socially acceptable, it is also more prone to being implicated in a substance abuse disorder. The Chief Public Health Officer’s Report on the State of Public Health in Canada, 2018, Preventing Problematic Substance Use in Youth, states,

About 20% of Canadians report a substance use disorder in their lifetime. Alcohol is the cause of most frequently reported
substance use disorders.

Alcohol is a legal, socially acceptable, mind-altering substance
that enjoys enormous popularity. However, its problematic use can lead to significant health and social harms.

These patterns of substance use may have implications for human rights. The Ontario Human Rights Commission states,

Mental health issues and addictions are “disabilities” that are protected under the Code. For example, the Code protects people who have anxiety disorders, panic attacks, post-traumatic stress disorder (PTSD), depression, schizophrenia, bipolar disorder, or addictions to alcohol or drugs, just to name a few.

People with mental health and addiction disabilities experience impairment and barriers in different ways. Disabilities are often “invisible” to others and may involve periods of wellness and periods of disability. All people with disabilities have the same rights to equal opportunities under the Code, whether their disabilities are visible or not.

People with addictions have the same right to be free from discrimination as anyone else with a disability. There is often a cross-over between addictions and mental health disabilities, and many people experience both. The Code also protects people from discrimination because of past and perceived disabilities.

Accommodation under the Human Rights Code for an employer does not necessarily mean condoning the addictive behaviour, especially if it impacts the work or the employee is in a safety sensitive position. It may require cooperation with the employee in a rehabilitative program or supports that help them get off their addiction.

One of the most common forms of treatment for alcoholism is Alcoholic Anonymous’s 12 Step Facilitation (TSF), which was first developed in 1952. Since that time, it has become popularized through television and movies, and is generally assumed to be a highly effective and useful approach towards treating addiction, being used far beyond alcohol by many therapeutic and support professionals and institutions.

Unfortunately, the science on the AA program is far less equivocal. A 2009 literature review found that prior AA attendance was predictive of subsequent abstinence, but statistical analysis revealed contradictory findings due to potential confounders. The studies demonstrating effectiveness were deeply flawed, without randomization or proper controls.

A more in depth scrutiny can be found in Dr. Lance Dodes’ The Sober Truth: Debunking the Bad Science Behind 12-Step Programs and the Rehab Industry, which largely debunks the correlation that is used to support claims of efficacy. Dodes is unable to provide a convincing alternative though, and many of his own suggestions have been widely critiqued.

After describing how American courts began sentencing the 12-step program for nonviolent drug offenders, Jake Flanagin says in The Atlantic,

This brings us to the present: an addiction-treatment landscape envisioned and engineered almost entirely by AA. TSF is the law of the land. If you have a drinking problem in 2014, or a drug problem, or a gambling problem, your medically, socially, culturally, and politically mandated solution is a set of 12 steps. The only other options, as asserted by the Big Book, are “jails, institutions, and death.”

And any suggestion that AA might be a flawed program, or not right for every addict, is met with scandalized looks and harsh retorts. AA, simply put, is pretty popular among the non-addicted.

The most significant problem in law is that TSF is automatically assumed to be the best way to assist people with addictions, and is sometimes even ordered by courts. This can create its own human rights challenges, given that TSF itself explicitly refers to and has a reliance on a deity, and a presumption of a higher power to help navigate issues of addiction.

In 2013, a Vancouver nurse was hospitalized for a psychiatric illness for psychosis and severe anxiety symptoms, and was diagnosed with a substance abuse disorder. The psychiatric report noted he was not fit to return to work in his current position, and was advised to seek counseling and treatment.

This report was provided to his regulatory college, as required by the Health Professions Act. The report included a number of recommendations, including submitting to random drug testing, and being prohibited from accessing, handling or administering any sedatives or narcotics at work for at least two years. The report also stated,

Starting immediately, [the employee] needs to attend at least one Narcotics Anonymous and/or Alcoholics Anonymous meeting every day to develop a network of support for his ongoing recovery. After his return to work he will need to attend at least three NA and/or AA meetings every week indefinitely including a home group. He needs to select and maintain regular, meaningful contact with a male sponsor in well-established recovery in NA and/or AA including at least one hour of one-on-one face-to-face contact every week and frequent telephone contract…

The employee refused to follow the recommended treatment program, raising objections as to whether it was evidence based. The “Enhanced Disability Management Program” established under the collective agreement between the union and the health authority incorporated elements of TSF, and required voluntary participation to receive long-term disability benefits, but not as a condition of employment. Although alternative to TSF treatments were canvassed, it did not appear as if adequate funding or options were available.

The employee filed a human rights complaint in Wood v. Vancouver Coastal Health Authority and others against the employer, the health authority; the trade union, of which he was a member of the bargaining unit of nurses; the college of nurses; and, the physician. In 2013, the proceedings advanced against all of the parties on the grounds of mental disability and religion, despite the extended time, except for the last two parties.

Notably, the union and others dispute whether they were properly informed of the employee’s atheist beliefs as being the basis for his objection. The employer-provided physician was initially implicated given her insistence on a TSF-type program. She was released from the action because it was unclear if she ever conveyed the employee’s objections to the employer. Some of her interactions with the employee are illustrative of the type of tensions that were present,

[103] The email provoked an angry reply from the Physician which was copied to the VCHA Workability Advisor. The reply provided more heat than light as well as making express the clear antipathy between the Physician and Mr. Wood. The Physician referred to Mr. Wood’s objection to the religious nature of the 12-step program and claimed that it was not religious in nature in a passage that frankly makes little sense:

…I am very confident in the specific recommendations I made for Mr. Wood. Contrary to his apparent belief, there is no religious component of 12-step recovery; hence I have patients pursuing the benefits of 12-step recover with great benefit who are atheists, agnostics, four kinds of Catholics, four kinds of Jews, four kinds of Muslims, Buddhists, worshipers of the Great Spirit, dozens of types of Protestants, radical feminists and others, who could not possibly function together in a religious group or institution in which the nature of a shared deity and expectations of how to interact with that deity are shared and enforced, as is the case with religious institutions.

[104] Catholics, Jews, Protestants, Muslims, Buddhists and “worshipers of the Great Spirit” are all religious in nature and subscribe to the existence of a higher power. Atheists and possibly agnostics may not. How “radical feminists” fit in that list is not apparent. If the Physician’s reply demonstrated anything, in my view it was his seeming failure to comprehend the issue.

What assisted the employee is his cooperation and willingness to participate in ongoing monitoring and random urine drug samples. All parties agreed the role was a highly safety-sensitive position, serving the vulnerable population of Vancouver’s Downtown Eastside. The duties included administering medication and monitoring, including care to many clients who have their own addiction and mental disabilities. Unfortunately, he ceased this monitoring in July 2014.

In a subsequent decision this year, the Tribunal dismissed the complaint against the union entirely, and dismissed the complaint of mental disability against the employer. The complaint on the basis of religion was allowed to proceed.

The Tribunal also applied the Court’s test for systemic discrimination from CN v. Canada (Canadian Human Rights Commission) at para 34, and rejected this claim, stating,

[125] In this case, while there could be systemic aspects in the seeming use by the medical experts of one method of treatment, there is no evidence, beyond his bare assertions, that the AA or NA method is unscientific or non-evidence based. He has presented no evidence in support of this assertion nor has he presented evidence that there are other evidence-based systems that are effective. In short, the evidence to support a systemic inquiry is not before the Tribunal.

[128] With regard to the monitoring agreement, and his objection to ongoing monitoring and abstaining from alcohol or drugs, there is no evidence that suggest that prohibition of casual off hours use of alcohol or illicit drugs is based on stereotypes rather than professional, presumably medically based conclusions. The Respondents present a medical opinion of someone who is an accepted medical expert in the field. For his part, Mr. Wood presents some articles or letters of support that are primarily aimed at the religious basis of 12-step programs like AA. To the extent they address the issues of total abstinence, they do not address why it was inappropriate in Mr. Wood’s case or why it is inappropriate in general.

The evidence and scientific critique around the efficacy of TSF, which is steadily growing in nature, could have strengthened this case.

His complaint on disability was dismissed because he filed his complaint late against parties that were no longer involved in the proceedings, and that the requirements of his job under the Meiorin test justified refraining from alcohol or drugs,

[143] However, having said that, I am convinced that there is no reasonable prospect that Mr. Wood would be able to establish his complaint of discrimination on the basis of mental disability. His complaint under this head is essentially that he was discriminated against on the basis of his mental disability by being required to being totally abstinent from drugs and alcohol not only during working hours but completely during all hours and that he would not be able to handle alcohol or drugs in the course of his employment for some set period of time. Mr. Wood says that this is based on a stereotypical view that persons who are alcohol or drug dependent are more likely to steal drugs at work or are unable to carry out their work functions while at work if they use alcohol or drugs outside of the workplace outside of working hours.

[144] Clearly Mr. Wood has a mental disability in that he is addicted to alcohol or drugs. Clearly this was severe enough that he was hospitalized with a psychotic episode and has been unable to stay abstinent from alcohol or drugs.

[145] It is not entirely clear from his complaint that Mr. Wood is arguing that he is being discriminated against because of the nature of his disability (dependence) or the nature of the accommodation. However, in my view, ultimately the issue will be the nature of the accommodation that was provided to him.

Refraining from alcohol or drugs was rationally connected to his performance as a nurse on the job, and the employee did not provide any expert evidence that would counter the requirement for monitoring or need for total abstinence.

Although a union could potentially discriminate against the employee based on his religion, the allegations would have to demonstrate an adverse impact regarding his union membership due to these beliefs (or lack thereof). The union’s role here was largely to provide advice, and they did not interfere with any accommodations. Instead, as his bargaining agent, the union encouraged him to resign rather than be fired, but this advice did not have to do with his religious beliefs.

The claim on discrimination on the basis of religion against the employer was allowed to proceed,

[179] For the purposes of this decision alone, I assume, without finding, that AA and the 12-step program are religious in nature. I also assume, without finding, that having to undertake the 12-step program or attend AA or NA is an adverse impact if one is an atheist.

[184] I am not convinced on the basis of the information before me that it is reasonably certain that VCHA will demonstrate at a hearing that it accommodated Mr. Wood’s religious beliefs to the point of undue hardship once it became aware of them.

[190] The Tribunal has not considered whether the 12-step program utilized by Alcoholics Anonymous and Narcotics Anonymous and on the evidence before the Tribunal is a commonly utilized system used by addictions specialists in the province, may discriminate against persons with substance abuse disorders who are atheists and if so, what appropriate accommodation at least in circumstances as they presented with Mr. Wood would be. In my view, there is a public interest in addressing that issue.

The determination of this issue was never achieved, as this matter settled this week. As part of the settlement, health care professionals in the Vancouver area will no longer be required to attend TSF based programs if diagnosed with an addiction.

The employer’s position appears to be compromised in this case because they did not fully explore alternative treatment options raised by the employee, including Self Management and Recovery Training (SMART) Recovery, Daytox, LifeRing Secular Recovery and counselling.

This case serves as an important reminder that many of our assumptions of care and support have religious roots, and for those who do not share those roots, viable alternatives should be readily available. Given that atheism or agnosticism is the fastest growing group for creed or religious beliefs in Canada, and the stigma around addictions and mental health is increasingly being addressed to try to focus on providing appropriate supports, alternative approaches to rehabilitation devoid of any denomination should likely become the standard instead.

 

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