In its ruling, the unanimous three member panel of the Court of Appeal, comprised of Chief Justice George Strathy, and Appellate Justices Sarah Pepall and J. Michal Fairburn upheld a previous decision from Ontario’s Divisional Court, from January 31, 2018. That ruling denied conscientious exemption from the “effective referral” mandate of the College of Physicians and Surgeons of Ontario (CPSO) for doctors who morally objected to participating in objectionable procedures such as assisted suicide, gender re-assignment surgeries, or abortion.
By way of background, individual Catholic and Christian doctors and several organizations had challenged the CPSO, which over the course of the past four years changed its professional guidelines on professional conduct, forcing Ontario doctors who objected to morally objectionable procedures to provide an “effective referral” to a willing doctor for such services. Previously, doctors were relieved from any such obligation.
Ontario is the only provincial or territorial jurisdiction which has made demands to this extent with its doctors. Other jurisdictions have elected to recognize such conscientious objections, or have provided a means to allow other transfers of a patient’s file, without infringing such rights.
In 2018, the Ontario Divisional Court had ruled in favour of the CPSO, despite finding that the religious freedom of doctors had been infringed. The Applicants appealed.
At the appeal, the CCRL, the Faith and Freedom Alliance (FFA) and the Protection of Conscience Project (PCP), had argued in a joint submission as an intervener that such “effective referrals” made objecting doctors complicit in the provision of the objectionable procedures, such as abortion, or assisted suicide. We argued that the referral requirement imposed the values of the state upon individuals, forcing them to violate their own consciences, without adequate justification.
Our intervention wished to expand the arguments into the area of conscience protection, in addition to religious freedoms asserted by the appellants under s. 2a of the Charter, but those submissions were not pursued by the Court of Appeal.
The Court of Appeal accepted that there was an infringement on the s. 2a rights of the appellants, but that the infringement was justified as a reasonable limit on those rights (para. 187).
The Court of Appeal decision clarified that “non-compliance with the [CPSO] Policies is not an act of misconduct” under the College’s professional misconduct regulations (para. 16), but could be used as evidence of falling below a professional standard if a misconduct allegation were brought (para. 17).
The Court accepted that referrals could be made in a variety of ways, or even by a staff member as a triage engagement (paras. 24-27).
The decision also referred to the availability of other practice arrangements endorsed by the CPSO, to allow doctors to “avoid” the demand for an effective referral, such as working in a hospital setting, or a group practice, if others were prepared to engage in the objectionable treatment, or make the requested referral (paras. 176-187).
The acceptance of such arrangements in the Court’s decision presented a dichotomy. In recognizing the infringement of s. 2a rights, several proposed workarounds were accepted, such as working in a hospital context, or in a group practice where others would be willing to make the referral, or having employees make the referral. Other jurisdictions have avoided the original effective referral demand, or have allowed for conscientious objections outright, which a majority of Ontario doctors supported.
The Court was not persuaded that a demand to change practice or specialty areas constituted a sufficient intrusion into a doctor’s existing practice. That may be a challenge for the typical cancer specialist, or cardiologist, who may be confronted more often with a demand for medical assistance in dying, especially in the absence of available palliative care options. While not underestimating the individual sacrifices that may be required (paras. 186, 187), the court’s answer suggested that it was perhaps time to change one’s specialty, or submit.
The CCRL continues to support Christian or other doctors who have raised serious concerns over the “effective referral” mandate of the CPSO, and look forward to continuing discussions on how best to serve their interests.
Click here to view the written factum of the CCRL, FFA, and PCP, submitted in November 2018, which made reference to important principles of law and philosophy, quoting Martin Luther King Jr., Jacques Maritain, and others.
We submitted that moral rights are central to one’s sense of human dignity, and that it was unacceptable to marginalize objecting physicians as religious extremists. The Ontario Medical Association (OMA) likewise opposed the “effective referral” regime, as representatives of Ontario doctors.
Ontario doctors should be persuaded that it may be time to re-visit these demands with a future Council of the CPSO, for which hopefully conscientious physicians will seek to pursue.
Sometimes change is needed to be undertaken by the governed to secure justice.