Ontario College of Physicians’ new policy violates basic tenets of law

Larry J. Worthen, Albertos Polizogopoulos

The College of Physicians and Surgeons of Ontario (CPSO) recently released a draft policy on professional obligations and human rights that has deeply disturbed health service providers and patients.  The draft policy forces physicians to do certain procedures or prescribe certain pharmaceuticals against their own moral or religious convictions in some cases, or to make a formal referral to another doctor in others. In doing so the CPSO has drafted a policy that violates Canadian law. This matter has taken on an even more serious tone given the possibility that assisted suicide and euthanasia may be legalized at some point in the future.

There is no human right in Canada to demand and receive particular services from a specific physician. The Ontario Human Rights Code prohibits discrimination against the public on a number of grounds that include among others, race, ethnicity, sex, sexual orientation, age or disability. This means that one must not deprive one group of services one provides to others. However, the Code does not dictate what services must be delivered. So, if a restaurant chooses not to serve pork because of the owner’s religious beliefs, there is no violation of the Code. If the restaurant choses to exclude people of a particular ethnic group however, that would amount to discrimination and a violation of the Code. In the same way, a physician who is unable to participate in a procedure or prescribe a pharmaceutical for moral or religious reasons is not discriminating against his or her patient provided all patients are treated the same.  Unfortunately, the draft policy suggests that a physician’s objection to a specific procedure or pharmaceutical may result in the violation of a patient’s rights under the Charter or the Code. This reference makes clear that those who prepared this policy misunderstand the application and function of Ontario and Canadian law.

Physicians do have the right to be protected from state coercion to act against their moral or religious convictions, guaranteed by the Charter of Rights and Freedoms. Provided the services are delivered in a respectful way there are no competing rights. In such a case, the only human rights present are the physician’s human rights to freedom of religion and freedom of conscience. Furthermore, when the physician is an employee they have the additional right to be accommodated by their employer.

Referrals are as morally problematic as doing the procedure itself. This concept is supported in Canadian law. For instance, if an accused person refers an acquaintance to a drug dealer, the accused person is guilty of the crime of trafficking in narcotics. If a physician has the moral or religious conviction that abortion or euthanasia is the taking of an innocent human life, then the physician who formally refers a patient to the abortionist or euthanist has contributed to the taking of that life.

Physicians who rely on these protections want to serve all patients in an open and inclusive manner, providing all relevant information in a fair and unbiased way, striving to be non judgemental and supportive in their approach. In a multicultural society, doctors relate with patients with widely divergent worldviews every day. The physician’s primary concern is for their patient’s health. Even when the physician is not able to participate in the implementation of the patient’s ultimate decision, the professional relationship between them can be maintained and may even be enhanced. Physicians in these circumstances are up front with their patients about what services they will or will not provide from the beginning of the relationship. Physicians simply request that their rights be respected just as they respect the rights and feelings of their patients.

Unfortunately, the purpose of this draft policy appears to be clear. It was not designed to ensure that physicians understand and comply with their legal obligations under the Code, but rather, it appears to have been designed with the goal of either compelling physicians who object to specific procedures and pharmaceuticals to act against their moral and religious convictions or, alternatively, to drive those who object to these procedures and pharmaceuticals out of the medical profession.

If the CPSO passes this policy, it will do great damage to many well-qualified physicians who are currently making significant contributions to health care in Canada. The CPSO will be alienating these physicians from their heart and soul that is their primary motivator for excellent patient care. And the CPSO will be depriving many members of the public of the type of doctor they would prefer to be treated by. This is discrimination.  It is the systematic disqualification of perfectly acceptable practitioners because of their religious beliefs.

This policy cannot withstand Charter scrutiny as it results in a clear violation of physician’s conscience and religious rights. The CPSO perhaps assumes that physicians will not defend their Charter rights to freedom of religion and conscience. They are wrong.


Larry Worthen is a lawyer and the Executive Director of the Christian Medical and Dental Society of Canada, an association that represents 1600 physicians across Canada. The CMDS presented submissions to the CPSO in relation to the draft policy.

Albertos Polizogopoulos is a Partner with the firm Vincent Dagenais Gibson LLP/s.r.l. in Ottawa, Ontario. He regularly appears before courts and appellate courts including the Supreme Court of Canada to advocate for his clients’ rights to freedom of religion, freedom of conscience and other civil liberties. He also frequently appears in media interviews and on panels to discuss constitutional law. Albertos was counsel to the CMDS in making submissions to the CPSO on the draft policy. @CharterLaw

The Globe and Mail: bullying from a bully pulpit

Re: Globe and Mail Editorial, 11/12 December, 2014

Will Johnston

If Tommy Douglas had foreseen that the public funding of  Medicare  would one day be the excuse to savagely persecute doctors with minority opinions about the birth control pill,  he might have been taken aback.  When Douglas was fighting for Medicare, the Pill had barely been invented though hundreds of women had already died from clots caused by that Pill’s high estrogen doses. Modern pills use a tiny fraction of the estrogen dose of the first generation Pill, but still result in side effects ranging from depression (common)  to fatal embolism (rare) in some users.   Modern birth control pills cause some breast cancer but prevent some ovarian and uterine cancer.  They can harm.

A minority of doctors, following  their own medical judgment, and soberly ignoring  edicts  from cranky Globe and Mail editorialists,  decide not to associate themselves with the Pill just as they and the majority would not refer a young woman whose family insists on clitoridectomy.  Some doctors do not prescribe antidepressants,  preferring other therapies for depression.  Few doctors would refer for or perform the removal of a healthy limb (yes, there is an activist group who clamor for that “service” too). Public funding doesn’t mean that doctors should discard their judgment.   Referring for something means approving of it.

If you tell a nasty stormtrooper where to go to find some refugees, but don’t personally persecute anyone, you are still implicated in the persecution.  If you tip off an addict as to where to get his drugs, but don’t personally sell the drugs, you are still complicit in the addict’s self-harm.  If you arrange the sale of a gun to a murderer, you become a link in the chain of responsibility for the consequences.

So we are left with some  questions:

1. What harm is there in forcing some doctors to refer to other doctors who have no principles  likely to   frustrate  the patient’s desires?  None, if you have no problem insisting that some doctors do what they think is wrong.

2.  Should the doctor’s disinclination to refer for some item on some politician’s list, promptly and obediently,  justify a quick end to the doctor’s career? Yes, if you want the medical system to end by serving the powerful and not the people.

3. In what way is referring a patient for an abortion like selling a murder weapon, abetting self-harm, or betraying the hiding place of a refugee ?  In each way, for those with eyes to see.

The Globe editorial is a bully’s cry demanding that the authorities hurt certain doctors with minority  opinions about controversial medical care.  These doctors  are to be hurt by being pulled away from the patients they have laboured to serve and by having their livelihoods destroyed.

The authors of the Globe editorial appear to have no idea who bequeathed  them the freedom to express themselves . Strident opinions can’t land them in jail or get them murdered by the police because this is not Iran or Russia. Their irritable and intemperate attack on a few earnest doctors betrays  an  impulse to coerce which, if not exposed and ridiculed, must end in totalitarianism.   We had better not let it.

 

Project letter to the New Brunswick Minister of Health

Re: compulsory referral for abortion

3 December, 2014

The Honourable Victor Boudreau,
Minister of Health,
HSBC Place,
P. O. Box 5100
Fredericton, NB
Canada E3B 5G8

Dear Mr. Boudreau:

The Protection of Conscience Project is a non-profit, non-denominational initiative that advocates for freedom of conscience in health care. The Project does not take a position on the acceptability of morally contested procedures.

I am writing about a statement attributed to you in the Fredericton Daily Gleaner:

Health Minister Victor Boudreau: “No physician can be forced to [perform abortions], but at the same time there is a duty to refer to someone who will.”1

It is instructive to compare this to a demand made by a panel of experts of the Royal Society of Canada:

Royal Society Panel: “. . . health care professionals are not duty bound to accede to [requests for euthanasia and assisted suicide] . . . but . . . they are duty bound to refer their patients to a health care professional who will.”2Since you are new to the position of Minister of Health, you are likely unaware of the fact that arguments used by those who demand that physicians be forced to refer for abortion are also used to demand that they be forced to refer for euthanasia or assisted suicide. It was for this reason that the Protection of Conscience Project joined an intervention in the case of Carter v. Canada in the Supreme Court of Canada.3

Counsel for the Project told the Supreme Court justices that what is demanded by the Royal Society experts (and, perhaps, the New Brunswick government?) is “precisely the sort of thinking that, in our submission, ought to be protected against.”4

Any number of physicians may agree to referral for abortion or other controversial procedures because they find that it relieves them of a moral burden or of tasks they find disturbing or distasteful. However, for others, as Holly Fernandez-Lynch has observed, referral imposes “the serious moral burdens of complicity.”5 They refuse to refer for abortion because they do not wish to be morally complicit in killing a child, even if (to use the terminology of the criminal law) it is, legally speaking, “a child that has not become a human being.”6

Just as these physicians refuse to facilitate killing before birth by referring patients for abortion, they and other physicians would refuse to facilitate killing patients after birth by referring them for euthanasia or assisted suicide. Influential academics and abortion and euthanasia activists want to force objecting physicians to do both.

Professor Jocelyn Downie of Dalhousie University was one of the architects of the Carter case,7 a member of the Royal Society panel, and a long-time advocate of compulsory referral for abortion.8 She was live- tweeting the hearing from the courtroom. Udo Schuklenk, one of her fellow Royal Society experts, was following the proceedings via a live audio-video link. He described most of the interveners as “Christian activist groups, some more fundamentalist than others.” After questioning the integrity of “the God folks,” he commented on the joint intervention involving the Project:

Then there was a lawyer representing groups called the Faith and Freedom Alliance and the Protection of Conscience Project. He . . . asked that the Court direct parliament to ensure that health care professionals would not be forced to assist in dying if they had conscientious objections. That, of course, is the case already today in matters such as abortion. However, this lawyer wanted to extend conscience based protections. Today health care professionals are legally required to pass the help-seeking patient on to a health care professional willing to provide the requested service. The lawyer wanted to strike out such an obligation. I am not a fan of conscientious objection rights anyway, so I hope the Court will ignore this.9 (Emphasis added)You can see clearly from this that Professors Downie, Schuklenk and their supporters hold that because physicians can be forced to refer for abortion, they can and ought to be forced to refer for euthanasia and assisted suicide. The weakness in this claim is the false premise that objecting physicians can or ought to be compelled to refer for abortion. Notwithstanding your assertions and the views of Dr. Haddad and Professors Downie and Schuklenk, this claim is sharply disputed, and for good reason.

Physicians are required to disclose personal moral convictions that might prevent them from recommending abortion, but not to refer the patient or otherwise facilitate the procedure. The arrangement preserves the integrity of physicians, and it safeguards the legitimate autonomy of the patient, who is free to seek an abortion elsewhere.10 But it also protects the community against the temptation to give credence to a dangerous idea: that a learned or privileged class, a profession or state institutions can legitimately compel people to do what they believe to be wrong.

Just how far this can go is now coming into focus, thanks to the Royal Society’s panel of experts and their supporters. They argue that it is not sufficient to simply encourage and allow willing health care professionals to kill patients. They demand that health care professionals be compelled to participate in and facilitate the killing of patients – even if they believe it to be wrong, even if they believe it to be murder – and that they should be punished if they refuse to do so.

Killing is not surprising; even murder is not surprising. But to hold that the state or a profession can, in justice, compel an unwilling soul to commit or even to facilitate what he sees as murder, and justly punish or penalize him for refusing to do so – to make that claim ought to be beyond the pale. It is profoundly dangerous, for if the state or civil society or professional organizations can legitimately require people to commit or aid in the commission of murder, what can they not require?

Particularly in view of the possibility that the Supreme Court of Canada might legalize physician assisted suicide and euthanasia, it is of grave concern that your comments can be taken to be supportive of the movement to develop and entrench a ‘duty to do what is wrong’ in medical practice. I know of no other profession that has accepted such a duty as a requirement of membership, and I am certain that the Liberal Party of New Brunswick does not and would not impose such a duty upon its members.

I have enclosed an abstract (in English and French) of the Project’s recent submission to the College of Physicians and Surgeons of Ontario about its policy, Physicians and the Ontario Human Rights Code, which is relevant in this case. The full submission, which is on line, is available in English only.

I note that a CBC news reported in July that the President of the New Brunswick Medical Association, Dr. Camille Haddad, included refusal to refer for abortion among alleged “barriers to access” to the procedure. The CBC report added, “The society says it wants the New Brunswick government to come up with a plan to address those barriers.”11

If Dr. Haddad or others have urged you to adopt policies to promote access to abortion, that is outside the scope of Project concerns. However, I respectfully suggest that a plan to address alleged “barriers” must not include the suppression of freedom of conscience among physicians by compelling them to refer for abortion. The state has other means at its disposal to deliver the service.

Sincerely,

Sean Murphy, Administrator
Protection of Conscience Project

Notes
1. Huras A. “Abortions won’t be available in all hospitals.” Fredericton Daily Gleaner, 28 November, 2014

2. Schuklenk U, van Delden J.J.M, Downie J, McLean S, Upshur R, Weinstock D. Report of the Royal Society of Canada Expert Panel on End-of-Life Decision Making (November, 2011) p. 70 (Accessed 2014-12-02)

3.  Murphy S. “Re: Joint intervention in Carter v. Canada– Project Backgrounder.” Supreme Court of Canada, 15 October, 2014. Protection of Conscience Project

4.  Murphy S. “Re: Joint intervention in Carter v. Canada- Selections from oral submissions.” Supreme Court of Canada, 15 October, 2014. Protection of Conscience Project

5.  Fernandez-Lynch, Holly, Conflicts of Conscience in Health Care: An Institutional Compromise. Cambridge, Mass.: The MIT Press, 2008, p. 229.

6.  Criminal Code, Section 238(1). (Accessed 2014-12-02)

7.  In a 2007 symposium at Carleton University in Ottawa, Professor Downie asserted that the Supreme Court of Canada might be willing to reverse its 1993 ruling in Rodriguez. She outlined the strategy for a legal challenge under Canada’s Charter of Rights and Freedoms and said that she was looking for an ideal test case to use to strike down the law. She published a paper and essay in 2008 that appear to have drawn from her Carleton presentation. The 2007 presentation and subsequent publication set out the strategy for the plaintiffs’ successful argument in Carter. Professor Downie assisted the plaintiffs in the Carter case in preparing their expert witnesses. “Rodriguez Revisited: Canadian Assisted Suicide Law and Policy in 2007.” Dalhousie University, ListServ Home Page, FABLIST Archives, Message from Rebecca Kukla, 6 February, 2007. “Symposium on physician assisted suicide.” (Accessed 2012-06-27); Schadenberg, Alex, “Dalhousie law professor seeks to re-visit Rodriguez court decision.” Euthanasia Prevention Coalition. Downie J, Bern S. “Rodriguez Redux.” Health Law Journal 2008 16:27-64. (Accessed 2012-06-27.) Carter v. Canada (Attorney General) 2012 BCSC 886, Supreme Court of British Columbia, 15 June, 2012. para. 124. (Accessed 2014-12-02)

8.  Rodgers S. Downie J. “Abortion: Ensuring Access.” CMAJ July 4, 2006 vol. 175 no. 1 doi: 10.1503/cmaj.060548 (Accessed 2014-12-02). McLeod C, Downie J. “Let Conscience Be Their Guide? Conscientious Refusals in Health Care.” Bioethics ISSN 0269-9702 (print); 1467-8519 (online) doi:10.1111/bioe.12075 Volume 28 Number 1 2014 pp ii–iv

9.  Schuklenk, U. “Supreme Court of Canada heard arguments in Charter challenge to assisted dying criminalisation.” Udo Schuklenk’s Ethx Blog Thursday, October 16, 2014 (Accessed 2014-12-02)

10.  Murphy S. “‘NO MORE CHRISTIAN DOCTORS.’ Appendix ‘F’- The Difficult Compromise: Canadian Medical Association, Abortion and Freedom of Conscience.” Protection of Conscience Project

11.  “New Brunswick Medical Society calls for abortion access plan: Doctors’ group says 2 doctor rule no different than any other procedure.” CBC News, 26 July, 2014 (Accessed 2014-12-02)

Ontario physicians college draft policy would trample conscience rights

Canadian Catholic News

Deborah Gyapong

OTTAWA – The College of Physicians and Surgeons of Ontario’s draft human rights policy would trample religious freedom and freedom of conscience, say groups defending those rights.

“Prominent academics and activists want to force objecting physicians to provide or refer for abortion and contraception,” said a news release from the Protection of Conscience Project.

“They and others have led increasingly strident campaigns to suppress freedom of conscience among physicians to achieve that goal. The College’s draft policy clearly reflects their influence.”

While the draft policy does not require doctors to perform treatments that violate their consciences or religious beliefs, it does require them to refer patients to doctors who will. . . [Full Text]

Ontario physicians to be forced to do what they believe to be wrong

Draft policy demands that objectors provide or refer.

Policy would apply to euthanasia, if legalized.

Protection of Conscience Project News Release

A draft policy of the College of Physicians and Surgeons of Ontario demands that physicians must provide services to prevent imminent “harm, suffering and/or deterioration,” even if doing so is contrary to their moral beliefs.

Should the Supreme Court of Canada legalize euthanasia, the policy will require objecting physicians to lethally inject patients themselves if a delay would result in “harm” or “suffering.” In less urgent circumstances, the policy will require physicians unwilling to kill patients to promptly refer them to “a non-objecting, available physician or other health-care provider.”

However, many physicians who object to killing patients for reasons of conscience would also object to referral. Dr. Charles Bernard, President of Quebec’s Collège des médecins, has explained that mandatory referral effectively nullifies freedom of conscience: “It is as if you did it anyway.”1

Dr. Bernard was talking about Quebec’s euthanasia law, but the same principle holds with respect to abortion – another procedure that involves killing.

Prominent academics and activists want to force objecting physicians to provide or refer for abortion and contraception. They and others have led increasingly strident campaigns to suppress freedom of conscience among physicians to achieve that goal. The College’s draft policy clearly reflects their influence.

However, crusades against physicians who refuse to provide or refer for abortion are dress rehearsals for eventual campaigns against physicians who refuse to kill patients. It is not a coincidence that activists who would force objecting physicians to facilitate abortion and contraception also intend to force objectors to refer for euthanasia – and for the same reasons.2

The Project insists that it is incoherent and contrary to sound public policy to include a requirement to do what one believes to be wrong in a professional code of ethics. It is also an affront to the best traditions of liberal democracy, and, ultimately, dangerous.

The College Council has tentatively approved the policy, but will accept further public input until 20 February, 2015 before imposing it on Ontario physicians.

Notes:

1.  Consultations, Tuesday 17 September 2013 – Vol. 43 no. 34: Collège des médecins du Québec, (Dr. Charles Bernard, Dr. Yves Robert, Dr. Michelle Marchand) T#154

2. For example: Schuklenk U, van Delden J.J.M, Downie J, McLean S, Upshur R, Weinstock D. Report of the Royal Society of Canada Expert Panel on End-of-Life Decision Making (November, 2011) p. 62, 69, 101 (Accessed 2014-02-23)