Protection of Conscience Project News
Service, not Servitude
International Law Office
The Supreme Court recently deemed that a municipality’s termination of its agreement with a general practitioner (GP) after she refused to insert an intrauterine device (IUD) for a patient for reasons of conscience relating to her religion was invalid.
Legal background
The criterion for terminating an agreement with a GP is the same as that for terminating an employment agreement under Norwegian law (ie, it must be objectively justified). . . [Full text]
Documents filed in an important Canadian court case bring into question the value and purpose of “public consultations” held by medical regulators, at least in the province of Ontario.
In March, 2015, the College of Physicians and Surgeons of Ontario (CPSO) approved a highly controversial policy, Professional Obligations and Human Rights. The policy requires physicians to facilitate services or procedures to which they object for reasons of conscience by making an “effective referral” to a colleague or agency willing to provide the service. A constitutional challenge to the policy was dismissed by the Ontario Divisonal Court in 2018.[1] An appeal of that ruling will be heard by the Ontario Court of Appeal on January 21-22, 2019.
Among the thousands of pages filed with the trial court are a number dealing with the public consultation conducted by the CPSO from 10 December, 2014 to 20 February, 2015. In response to its invitation to stakeholders and the public, the CPSO received 9,262 submissions about the proposal, the great majority of which opposed it.[2]
College officials finalized the wording of the policy on 19 January, 2015,[3] a month before the consultation ended; only about 565 submissions would have been received by then.[4] 727 submissions had been received by the time the policy was sent to the Executive Committee on 28 January,[5] which promptly endorsed it and forwarded it to the College Council for final approval.[6]
According to the briefing note supplied to the Council, by 11 February, 2015 the College had received 3,105 submissions.[7] Thus, the final version of the policy was written and approved by the College Executive before about 90% of the submissions in the second consultation had been received.
During the first 40 days ending 11 February, the College received an average of about 18 submissions per day. Assuming someone spent eight full hours every working day reading the submissions, about 22 minutes could have been devoted to each. Three staff members dedicated to the task could have inceased this average to about an hour, so the first 700 submissions could conceivably have received appropriate attention.
However, this seems unlikely in the case of more than 8,000 submissions received later.
By 11 February about 183 submissions were arriving at the College every day, increasing to about 684 daily in the last ten days of the consultation – one every two minutes. A College staffer working eight hours daily without a break could have spent no more than about two minutes on each submission, and only about one minute on each of those received in the last ten days – over 65% of the total.
A minute or two was likely sufficient if College officials deemed consultation results irrelevant because they had already decided the outcome. This conclusion is consistent with the finalization and approval of the policy by the six member College Executive (which included the Chair of the working group that wrote it [8]). To do this weeks before the consultation closed was contrary to normal practice. CPSO policy manager Andréa Foti stated that working groups submit revised drafts to the Executive Committee after public consultations close[9] – not before.
One would expect government agencies that invite submissions on important legal and public policy issues would allow sufficient time to review and analyse all of the feedback received before making decisions. The CPSO’s failure to do so does not reflect institutional respect for thousands of individuals and groups who responded in good faith to its invitation to comment on the draft policy. Rather, such conduct invites a reasonable apprehension of bias that is unacceptable in the administration of public institutions.
Notes
1. The Christian Medical and Dental Society of Canada v. College of Physicians and Surgeons of Ontario, 2018 ONSC 579 (Can LII) [CMDS v CPSO].
2. CMDS v CPSO, supra note 1 (Respondent’s Application Record, Volume 1, Tab 1, Affidavit of Andréa Foti [Foti] at para 121.
3. Foti, supra note 2 at para 133.
4. Estimated daily average based on the total received by 28 January (727).
5. CMDS v CPSO, supra note 1 (Respondent’s Application Record, Volume 4, Tab WW, Exhibit “WW” attached to the Affidavit of Andréa Foti: Executive Committee Briefing Note (February, 2015) (CPSO Exhibit WW) at 1724.
6. CMDS v CPSO, supra note 1 (Respondent’s Application Record, Volume 4, Tab XX, Exhibit “XX” attached to the Affidavit of Andréa Foti: Proceedings of the Executive Committee – Minutes – 3 February, 2015) (CPSO Exhibit XX) at 1746-1748.
7. “Council Briefing Note: Professional Obligations and Human Rights – Consultation Report & Revised Draft Policy (For Decision)” [CPSO Briefing Note 2015]. In College of Physicians and Surgeons of Ontario, “Annual Meeting of Council, March 6, 2015” at 61.
8. Dr. Marc Gabel. See CPSO Exhibit WW, supra note 4 at 1722 (note 1), and CPSO Exhibit XX, supra note 5 at 1746.
The Catholic Register
An Ontario campaign to pressure politicians over the protection of health care conscience rights is “democracy in action,” said an organizer.
The Coalition of HealthCARE has so far collected 19,000 names and e-mail addresses in its “Call for Conscience Campaign.” That does not include results from the Archdiocese of Toronto.
The non-partisan campaign was launched to oppose and raise awareness about regulations that force doctors to refer for assisted suicide and euthanasia against their moral convictions.
By the end of March, people who have signed up during the campaign should receive instructions about how to e-mail all the candidates in their ridings in the run-up to Ontario’s June 7 provincial election. . . [Full text]
CTV News
A landmark lawsuit has been filed by an Ontario man suffering from an incurable neurological disease. He alleges that health officials will not provide him with an assisted home care team of his choosing, instead offering, among other things, medically assisted death.
“My condition is grievous and irremediable,” 42-year-old Roger Foley said from his bed at the London Health Science Centre’s Victoria Hospital in a video that was recently posted online. “But the solution is assisted life with self-directed funding.”
According to Foley, a government-selected home care provider had previously left him in ill health with injuries and food poisoning. Unwilling to continue living at home with the help of that home care provider, and eager to leave the London hospital where he’s been cloistered for two years, Foley is suing the hospital, several health agencies and the attorneys general of Ontario and Canada in the hopes of being given the opportunity to set up a health care team to help him live at home again — a request he claims he has previously been denied. . . [Full Text]
National Post
Reproduced with permission
If I told you that I wanted to rob a home or store, would you sell me a gun? Presumably not. But what about giving me the name and contact info of another person who is willing to sell me a gun? If you wanted to avoid any participation in my planned robbery, you would refuse to provide a referral.
When it comes to female genital mutilation (the cutting and removal of some or all of a young girl’s external genitalia) the College of Physicians and Surgeons of Ontario (CPSO) recognizes that referring is as bad as providing. The CPSO prohibits this practice, common in many African and Middle Eastern countries. Female genital mutilation causes infection, disease and death in many girls, and life-long health problems for millions of women.
The CPSO policy prohibits physicians from performing, and from referring for, female genital mutilation procedures. Both performing and referring constitute professional misconduct. The reasoning is obvious. If mutilating a girl is wrong, then it’s also wrong to provide a referral for this barbaric procedure.
College of Physicians and Surgeons of Ontario in Toronto, Ont. on Tuesday April 9, 2013.
Sadly, the CPSO abandoned this common-sense approach in the case of Christian Medical and Dental Society vs. CPSO. This court case was about a challenge to the CPSO policy requiring all doctors in Ontario to provide referrals for abortion, assisted suicide, and other medical procedures which some doctors view as harmful to patients and morally wrong. In court the CPSO argued that “a referral is neither an endorsement of the service for which the referral is provided, nor a guarantee that it will be provided.” The CPSO argued that providing a referral is trivial and insignificant, so a doctor would not be violating her conscience when referring a patient for a procedure that the doctor considers harmful. If the CPSO’s courtroom arguments are true, then why prohibit referring for female genital mutilation?
The Ontario Superior Court of Justice ruled that the CPSO policy violates the Charter freedom of religion and conscience, but then justified this violation as necessary to ensure “equitable” access to health-care services.
Abortion and assisted suicide are both legal medical procedures. Plenty of doctors are available to provide the one, the other, or both. Having to ask two, three or more doctors for a particular medical service is inconvenient for patients, to be sure.
But does the Charter provide citizens with a legal right to be free from inconvenience? Beyond a bald declaration, the court provides no explanation as to how or why being inconvenienced is a violation of the Charter. Nor does the court explain why it is necessary to force every single doctor in Ontario to provide referrals for abortion and assisted suicide. In other words, even if many doctors refuse to provide referrals for these services, the public would still have ready access to both.
The purpose of the Charter is to protect citizens from government. For example, the Charter should protect health-care workers (and everyone else) from being pressured or coerced by a government body to do what one believes to be wrong.
Conversely, there is no Charter right to force another human being to provide a service that runs contrary to their conscience. Interactions between citizens should be free from coercion. A patient’s power to compel a doctor to do what the doctor believes to be harmful is as destructive as a doctor’s power to compel a patient to do what the patient believes to be harmful.
The doctors who challenged the CPSO policy were not merely asking the court to be spared an inconvenience. Rather, an Ontario doctor who refuses to violate her conscience risks expulsion from the medical profession.
In upholding the CPSO policy, the court confuses fundamental Charter freedoms with personal interests and desires. The court has dismissed the Charter’s protection from government coercion as less important than a newly invented “right” to compel our fellow citizens (in this case doctors) to do what we want them to do. The court has turned the Charter on its head.
Lawyer John Carpay is president of the Justice Centre for Constitutional Freedoms (Jccf.ca), which intervened in Christian Medical and Dental Society of Canada vs. College of Physicians and Surgeons of Ontario.