New Brunswick

Regulation 84-20

Regulation 84-20 excludes abortion from provincial Medicare coverage unless it is performed at a hospital facility approved by the jurisdiction in which the hospital facility is located. This means that patients have to pay out-of-pocket for abortion care received at a clinic – a direct violation of the Canada Health Act.

Further, Regulation 84-20 also disentitles ancillary services relevant to procedural abortion, meaning that abortion care is not necessarily free at the designated hospitals.¹

Presently, the Canadian Civil Liberties Association (CCLA) is suing the Government of New Brunswick over the legality of Regulation 84-20.² 

In New Brunswick, the Minister of Health has authority over operating and administering Medicare according to the Medical Services Payment Act and its Regulations. The Act and Regulations set out who is eligible for Medicare coverage, and defines which Medicare services are covered and which are excluded. As well, the Act and Regulations specify the rights of a medical practitioner, how the amounts to be paid for medical services will be determined, how assessment of accounts for medical services may be made, and confidentiality and privacy issues as they relate to the administration of the Act.³

Schedule 2 of Regulation 84-20 sets out the services that are excluded from Medicare coverage. Section a.1 of Schedule 2 states that abortion is not an “entitled service” for provincial funding unless the abortion is performed in a hospital facility approved by the jurisdiction in which the hospital facility is located. 

Without the regulation, private clinics would be able to receive provincial funding for procedural abortion services through Medicare, removing barriers for both patients and abortion providers.⁴ In January 2024, Clinic 554, New Brunswick’s only private abortion clinic, announced it was closing due to financial strains caused by Regulation 84-20. The Premier of New Brunswick retains the authority to remove the restriction in Regulation 84-20. 

Under the Medical Consent of Minors Act, minors over the age of 16 have the same right to consent to health care treatment as a person who has reached the age of majority (19 years) in New Brunswick. If a minor is younger than 16 years of age, they may make their own health care decisions if, in the opinion of a legally qualified medical practitioner, they are capable of understanding the nature and consequences of the treatment and the treatment is in their best interests.¹³

Currently, New Brunswick does not have any bubble zone legislation. However, federal Bill C-3, which makes it illegal to intimidate healthcare workers and patients or obstruct them from providing care or seeking treatment at locations where healthcare services—including abortions—are delivered, applies.

In May 2017, the Chaleur Regional Hospital in Bathurst New Brunswick was granted a permanent injunction against protesters by Court of Queen's Bench Justice Reginald Leger. The injunction bans protesters from demonstrating anywhere on the hospital grounds.

Physicians

The College of Physicians and Surgeons has a Code of Ethics and Moral Factors and Medical Care guideline that offers directive in cases of belief-based care denial. According to the Code of Ethics, physicians are only obligated to “expedite access to another physician if possible” if the delay or denial of medical care can cause harm, and notes that “[i]n any case, the physician cannot obstruct such access.”   

The Code also directs physicians to “[i]nform your patient when your personal values would influence the recommendation or practice of any medical procedure that the patient needs or wants,” and “[p]rovide your patients with the information they need to make informed decisions about their medical care, and answer their questions to the best of your ability.”

The Moral Factors and Medical Care guideline is based on the principles in the Code of Ethics, and adds that in cases of conscientious objection, physicians must ensure their patients are offered timely access to another physician or resource that can provide accurate information about all available medical options. However, “accurate information” is not the same as medical care, which means physicians can choose not to refer a patient to the care they need.¹⁴ 

The guideline also states that:

• A physician must communicate clearly and promptly about any treatments or procedures the physician chooses not to provide because of his or her moral or religious beliefs.
• A physician must not withhold information about the existence of a procedure or treatment because providing that procedure or giving advice about it conflicts with their moral or religious beliefs.
• A physician must not promote their own moral or religious beliefs when interacting with patients.

Nurse practitioners

The Nurses Association of New Brunswick has a practice guideline called Duty to Provide Care that obligates nurses to work with their organization or employer to ensure uninterrupted care for their patients, and if needed, safe transfer to another provider in cases of belief-based care denial. It also instructs nurses to provide safe care to patients in situations involving imminent risk or death or serious harm. 

The guideline also instructs nurses to:

• Listen and, when possible, explore the client’s reason for the request or refusal 
• And their understanding of options that could meet their needs; 
• Do not attempt to influence or change the client’s decision based on the nurse’s  conscientious objection; 
• Do not allow their beliefs or values to alter or interfere with a client receiving safe, competent, and ethical care; 
• Ensure that the most appropriate person within the organization is informed of the conscientious objection well before a client is to receive (or not receive) the requested/refused treatment or procedure

In some instances, patients may have to travel outside of the country to receive abortion care currently not available in Canada. New Brunswick Medicare includes an out-of-country reimbursement program for patients referred for insured treatment not available in Canada, as per the Medical Services Payment Act.

A New Brunswick specialist must submit a reimbursement application to New Brunswick Medicare and receive prior approval in order for the patient to be eligible for reimbursement. Approval is based on whether New Brunswick Medicare considers the treatment to be “reasonable and appropriate in the circumstances.”

If approved, the Medical Services Payment Act states that patients must submit their claim for reimbursement within twelve months after the date they received care. The amount payable is limited to the negotiated rate.

Travel support

Travel and accommodation fees are not covered by New Brunswick Medicare for out-of-country services.