Category: Society & Politics

Submission to the College of Physicians and Surgeons of Ontario

General Practice Section, Ontario Medical Association

Re: Human Rights Code Policy

Dear College of Physicians and Surgeons of Ontario,

The Section on General and Family Practice appreciates the opportunity to provide  comment on the College’s Physicians and the Ontario Human Rights Code policy that is currently being reviewed.

This policy provides important guidance to physicians on sensitive matters and has generated a great deal of interest and discussion amongst our members since it has come up for review. Overall, the Section feels that the policy in its current form seems to strike a reasonable balance between the moral and religious beliefs of physicians and the legal obligations and professional expectations related to the medical services they provide and has served the profession well since it was approved in 2008.

Essentially, the Section feels that we as physicians are professionals. We communicate with our patients on the complex issues they bring to us and we use our best judgement in making decisions around care together with our patients. The system and communities that we work in have well established networks with our other provider colleagues that enable us to provide the care our patients require when that need falls outside of our ability to provide that care as individual physicians.

Since this policy has come up for review, there have been significant concerns raised amongst our members that tighter guidelines will be placed upon physicians requiring them to provide types of care that conflict with their own personal morals and beliefs. This has led to a number of concerns being raised as to the possible outcomes related to any potential changes to this policy that would be more onerous on physicians. Questions that have come to our attention from our members include the following.

  • Are we slowly heading to a system where individuals looking to enter the medical profession will be required to leave their moral and religious beliefs behind when they accept entry?
  • What about more remote areas of practice? Will more prescriptive policies drive physicians to feel that they will have no choice but to practice in more urban settings?
  • What happens if a physician becomes fearful for safety in their office due to the extreme nature of a particular patient’s behaviour or uncomfortable with a patient who refuses to respect the rules of a physician’s office that may or may not be related to an underlying medical condition? Will the physician lose the ability to end the doctor-patient relationship?
  • Will a stricter policy make it more difficult to manage inappropriate patient demands such as those for narcotic pain medications as it may be construed by some patients as a denial based on discrimination.

College policies can have far-reaching impact above and beyond regulation of physicians in practice. As such, they need to be carefully thought out. A more strict approach to Physicians and the Human Rights Code could lead to situations where well qualified students are, in a sense, denied entry into medical school because of a potential inability to honour their personal, socially accepted religious beliefs due to patient demand. The Section believes it is important to ensure that the public continues to have access to care from the best and brightest minds and we are concerned that quality could suffer if we only accept medical students who are willing to compromise their personal values. At the same time, the Section is well aware of recent items in the media that might compel the College to consider changes to the current policy that would place more onerous expectations upon physicians to personally provide any and all treatment even when it is in direct conflict with their own personal morals and beliefs. However, the Section is not aware that there has been a pattern of complaints that relate to this matter that would document a more significant underlying or systemic problem in this area. As such, it would seem that the policy in its current form is adequate.

An area that was identified as a potential area to be improved upon is in regards to the definition of “disability” within the context of this policy. Mental illness has been raised as an example of a medical condition or disability that has a wide range of expression. It is felt that there may be some room to better define disability or provide some guidance to allow for the use of professional judgement when it comes to disability and a physician’s ability to safely and appropriately provide care in their work environment.

Finally, a significant area for consideration has been raised about the importance of having clarity in regards to complaints being dealt with through the Ontario Human Rights Commission and the role of the College. Physicians are always exposed to the risk that the decisions they make will be challenged by a complaint to the OHRC. If there is a complaint against a physician to the OHRC, this should be allowed to run its course without necessitating involvement of the College. The College should not become involved in additional areas outside of its jurisdiction. For complaints that come to both the OHRC and the College, the College policy should clarify when the College steps aside and waits to assess whether issues of professional conduct remain after the OHRC has made its decision.

The Section feels that the policy in its current form seems to give appropriate guidance to physicians in regards to our legal obligations and our professional expectations but also does not place physicians in an unreasonable position of being forced to provide certain care if it conflicts with their own moral and religious beliefs. The ability for physicians to say “no” without retribution must be preserved as long as those decisions are not based on discrimination. In the rare instance that an individual physician’s professional conduct is felt to clearly fall outside of what is deemed to be reasonable, then the policy in its current form has sufficient substance to be able to deal with those individual situations.

The Section understands that this request for feedback is a preliminary consultation that is meant to assist the College as it begins its work to update this policy so we look forward to the opportunity to review the outcome of this work and once again provide input when it is recirculated for further comment.

General Practice Section
Ontario Medical Association

Submission to the College of Physicians and Surgeons of Ontario

Christian Legal Fellowship

RE: Physicians and the Ontario Human Rights Code Consultations

The College of Physicians and Surgeons of Ontario (“CPSO”) has invited feedback from al 1 stakeholders in regard to its review of Policy Statement #5-08. Physicians and the Ontario Human Rights Code (”the Policy”). In particular, the CPSO has asked if the Policy provides useful guidance, whether the Policy fails to address any issues, and any other ways in which the Policy should be improved. The Christian Legal Fellowship (“CLF”) appreciates the opportunity to participate in this discussion, as we did in the prior CPSO consultation on Human Rights in September of 2008, and makes the following introduction and submissions.

The CLF is a national charitable association that exists to strengthen the spiritual life of its members, and encourage among Christians in the vocation of law the integration of faith with contemporary legal, moral, social and political issues. The CLF’s membership consists of approximately 550 lawyers, law students, professors, and others who support its work; with approximately one third of its members in the Province of Ontario. It has 14 chapters in cities across Canada and student chapters in most Canadian law schools. While having no direct denominational affiliation, CLF’s members represent more than 30 Christian denominations working in association together. As an association of Christian professionals, we welcome the opportunity to address the issues which the CPSO have raised in this consultation process.

The CLF has intervened in numerous legal cases relating to matters of conscience and religious freedom at the appellate and Supreme Court level. The organization also engages in policy consultations raising issues that impact, among other things, religious freedom and human rights. CLF is therefore knowledgeable and well-positioned to comment on this CPSO policy.

In reviewing the Policy, there are three broad areas of concern for CLF. First, we submit that the Policy fails to recognize that physicians have the right to freedom of religion and conscience. Second, the Policy fails to recognize that the law protects physicians with religious beliefs from engaging in activities that violate their religious beliefs, their moral beliefs and their conscience. Third, the Policy obligates physicians, in “some circumstances” to actively refer a patient for services which violate the beliefs or conscience of the physician.

(l)        Physicians have the right to freedom or religion and conscience.

In its current format, the Policy mentions “personal beliefs and values and cultural and religious practices are central to the lives of physicians and their patients”. This description fails to acknowledge the legal status of beliefs and religion. In fact, conscience and religion, thought, belief, opinion and expression are protected as fundamental freedoms by the Charter of Rights and Freedoms.1  Further, the Human Rights Code2 upon which the Policy is based, protects from discrimination on the basis of creed.3

The Policy also precludes physicians from sharing their religious beliefs with patients: “physicians should not promote their own religious beliefs when interacting with patients, nor should they seek to convert existing patients or individuals who wish to become patients to their own religion”. While this conduct may not be appropriate in all circumstances, a blanket prohibition is problematic and a clear violation of freedom of religion and expression.

Religion as a protected freedom is more than the right to privately think or believe certain ideas and principles. It is broadly defined and demands robust protection. Freedom of religion encompasses the right to entertain religious beliefs of one’s own choosing, the right to declare religious belief openly and without fear of hindrance or reprisal, the right to manifest those beliefs by worship and practice, by teaching and dissemination.4It precludes forcing an individual to act [lacuna] conscience. Under the law, physicians must be afforded the ability to align their practices with their conscience in these controversial areas and others, and that right must be made clear in the CPSO Policy.

CLF therefore urges the CPSO to modify its Policy to reflect the principles outlined above, ensuring it accurately reflects physicians’ rights pursuant to the Charter and the Human Rights Code.

Please note the endorsements that follow. CLF would be pleased to provide further assistance in any way the CPSO believes would be appropriate. Thank you for your consideration of our submissions.

Christian Legal Fellowship

Notes
1. The Constitution Act1982, Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.

2. Ontario Human Rights Code,R.S.O. 1990, e. H .19.

3. Ontario Human Rights Commission: Policy 011 Creed and the Accommodation of Religious Observances, October 20, 1996. While creed is not a defined term in the Code, the OHRC has adopted the following definition of creed in its Policy: “Creed is interpreted to mean “religious creed” or “religion.” Tt is defined as a professed system and confession of faith, including both beliefs and observances or worship. A belief in a God or gods, or a single supreme being or deity is not a requisite … The existence of religious beliefs and practices are both necessary and sufficient to the meaning of creed, if the beliefs and practices are sincerely held and/or observed. “Creed” is defined subjectively. The Code protects personal religious beliefs, practices or observances, even if they are not essential elements of tne creed provided they are sincerely held.” Policy page 4-5. ” In the case of discrimination in the workplace, both management and the union have a duty to accommodate. In Central Okanagan School District No. 23 v. Renaud the Court noted that although the principle of equal liability applies, the employer has charge of the workplace and will be in a better position to formulate measures of accommodation. The employer, therefore, can be expected to initiate the process of taking measures to accommodate an employee. Nevenhelcss, the Court also noted that they will not absolve a union of its duty if it fails to put forward alternative measures that are available. In short, when a union is a co-discriminator with an employer it shares the obligation to remove or alleviate the source of the discriminatory effect.” Policy page 9. “Conclusion: Religious pluralism poses a challenge in any multicultural society, especially one as diverse as ours. Although the law is developing rapidly in this area, an informed spirit of tolerance and compromise is indispensable to any civil society, as well as to its capacity to make opportunities available to everyone, on equal terms, regardless of creed [or other protected right].” Policy page 16. “R v. Rig M Drug Mart l 1985] I SCR 295 at336-337

Submission to the College of Physicians and Surgeons of Ontario

Freedom of Professional Judgment

Canadian Physicians for Life

I would like to thank the CPSO for inviting comment about its Policy Statement #5-08, “Physicians and the Ontario Human Rights Code.”

The CPSO policy is fair and should not change.

Some, and I would hope most,  Canadian physicians wish to practice as professionals in a free country,  and to use their hard-won medical wisdom in the service only of the patient who presents with the unique circumstances of an individual life. This excludes treating the patient as a means to an end, political or otherwise, but rather the doctor’s judgment should be fearlessly focused on the physical and mental integrity of the patient.

In recent years various activists have attempted to impugn certain medical decisions in controversial situations, notably requests for abortion or for  potentially abortifacient drugs.  The activists wish to portray their ideological opponents as driven by purely private (usually religious) prejudices which have no place in medical practice.

The CPSO  should decline to be used by such activists as an instrument to suppress their critics, for in reality that is all that is going on with demands that physicians be forced to refer for, or perform, certain acts.

If a physician has come to the conclusion that induced abortion would be bad for a certain patient and fatal for her child, the CPSO is in a good position to recognize this opinion  as resulting from the healthy application of medical judgment.  Some activists wish to malign such decisions  by casting them  as  creatures  of a whimsical  “conscience” as opposed to an obedience to  “professionalism.”

These activists have a debased understanding of  both concepts.  The free application of a  good conscience directs  the doctor to offer selfless professional judgment to each human being he or she has the honour to advise and treat.

The concept of “conscience” should never be used to cloak an agenda hidden from the patient, and the concept of “professionalism” should never be turned on its head to subjugate professional judgment to a political ideology or to persecute those who show  ethical courage.

I wish the CPSO endurance in resisting the erosion of its members’  freedom to do the right thing for their patients.

Yours cordially,

Will Johnston MD
President, Canadian Physicians for Life
495 West 40th Ave.
Vancouver BC V5Y 2R5

Related:

Submission to the College of Physicians and Surgeons of Ontario

Gift of Life Fertility Care Centre

Dear CPSO Members,

I teach women and couples how to understand and track their fertility using the Creighton Model FertilityCare™ System. I am writing in response to the review of your policy about Physicians and the Ontario Human Rights Code.

Several articles by major news outlets have documented the inconvenience experienced by a woman who wanted to get the birth-control pill only to find that the doctor on staff did not prescribe it. Despite attempts by these outlets to make it more than this, ultimately “inconvenience” is the right word for what this woman experienced. She lost, maybe, 30 minutes of her time going to another clinic.

What has been played up by these news outlets as an inconceivable travesty is common fare for the women who are my clients. I work with women who, in contrast to women who use the Pill, believe their fertility to be health, not disease, and therefore use methods of family planning based on their natural cycle. These women want to work with doctors who will treat their reproductive and gynaecological issues in accord with this mindset. Many of the women I have worked with would be glad if the worst thing that happened to them in their attempt to find such a doctor was a 30 minute detour to a different clinic. A significant number of my clients make regular 3 to 6 hour trips, each way, to see a doctor who will respect their decision to work with their fertility versus seeing it as a disease. Some have even travelled from other provinces, paying not only for travel but also hotel rooms and lost days of work.

To my knowledge, the woman in the above mentioned news articles never even interacted with a doctor. She was never judged for wanting the Pill, never pressured to get off of it, or never told she should be doing something else. In contrast, here are some of the things that women using natural methods have dealt with:

  1. More than once, a woman’s physician has pressured her to go on the Pill, despite her clearly telling her physician that she does not want that, after she has chosen to get pregnant and given birth. [Please note: “chosen” is the best word, as my experience in practice matches with the published method effectiveness for the Creighton Model of 99.5% to avoid pregnancy.)
  2. In one instance, an OBGYN was so insistent that a women use non-natural methods of family planning that she felt the need to get a letter from her lawyer before her scheduled C-section as she feared the OBGYN would tie her tubes.

In addition, clients have experienced ignorance, scorn, and downright rudeness from physicians who, horribly informed about modern methods of Natural Family Planning, chastise them for using the “Rhythm” method or no method at all.

This lack of respect for my clients’ desires is seen not only with their choice for family planning but also with their approach to pregnancy:

  1. A woman struggling from multiple miscarriages shared with me how callous her physician was in response to her distress regarding her most recent miscarriage; for him, loosing multiple unborn children was no big deal and he felt it should also be for her.
  2. A couple, given a potential negative prenatal diagnosis was repeatedly pressured by their physician to abort despite the couple telling the physician that they were morally opposed to abortion.

Finally women who are looking for real answers to their reproductive and gynaecological health issues, as opposed to suppressive/destructive approaches like the Pill, have sometimes found Pill-prescribing physicians more “dogmatic” than any of the physicians the media decided to highlight who do not prescribe the Pill. A number of my clients have been told by these Pill-prescribing physicians that the Pill was the only option to their problems. In case you were wondering, the Pill was not the only medical answer, as all of them have subsequently found out.

I find it ironic that, given the ubiquitous presence of the Pill and the ease at which hormonal contraception can be found – not only in private medical practice, but at any Public Health Unit or Family Planning Clinic – that the story of one woman’s inconvenience became national news. Meanwhile, the women that I work with continue to quietly accept the difficult and costly efforts they go to to find physicians who will work with them. These women are equally deserving of having physicians, such as those who only prescribe natural methods for family planning. Any attempt by the CPSO to change its referral policy and thus force such physicians out of practice is a clear statement by the CPSO that some women – particularly those who take the Pill – are more equal than others.

Gift of Life FertilityCare TM Centre,
Ottawa, Ontario

Submission to the College of Physicians and Surgeons of Ontario

Dr. Marc Gabel
President
College of Physicians and Surgeons of Ontario
80 College Street
Toronto, Ontario
MSG 2E2

Dear Dr. Gabel:

Re: Policy Review ‘Physicians and the Ontario Human Rights Code’

As the College of Physicians and Surgeons of Ontario prepares to review its policy on physicians and the human rights code, we are deeply disturbed by the many negative voices that have been urging the College to force doctors to “check their ethics at the door”. It should be obvious that now, only weeks after Quebec legalized euthanasia, we have arrived at the worst possible time in Canadian history to turn doctors into mere mechanics whose duty is to blindly do the bidding of their clients.

With euthanasia legal in Canada’s second-largest province, the debate about euthanasia and assisted suicide on the national level and in other provinces will only intensify. It is crucial that we preserve the right of our doctors to refuse to participate in such services even if they are legal.

Euthanasia and assisted suicide continue to be regarded as deeply unethical by many world religions, including Christianity, Judaism and Islam.

What is legal is no longer necessarily moral, and we would be unwise to place all our trust in the law as our shield, or to train our doctors to disregard their own ethical limits. Indeed, the properly formed conscience of our physicians may sometimes be the last moral and ethical boundary that protects us and provides us with life-affirming options and alternatives that respect our human dignity.

Canadians pride themselves on being a society made up of many cultures, religions and ethnicities. The freedom and democracy that underpin our pluralist society lead us to affirm the right of all citizens to participate fully in roles of leadership and the professional life, including the medical profession.  Any policy that would require doctors to contravene their consciences and to breach their most deeply held values would be outrageously exclusionary and unacceptable, as it would chase out of medicine those principled physicians who refuse to violate the central teachings of many of our largest and most ancient religions. For such doctors, referral for actions that they believe to be contrary to their medical judgement, ethical principles and religious beliefs would be as unacceptable as providing them, as it would be tantamount to outright cooperation with the action in question.

We refuse to believe that this is the kind of Canada that any of us would want to live in. The freedom of conscience is a basic human right recognized by many international agreements and protected by the Canadian Charter of Rights and Freedoms. It is essential to a truly democratic society and foundational for the protection of all other human rights, including the freedom of religion.

As such, we strongly encourage the College, as it reviews its policy on this matter, to continue to protect an authentic freedom of conscience for all physicians. No Canadian citizen, including any physician, should ever be disciplined or risk losing their professional standing for conducting their work in conformity with their most deeply held ethical or religious convictions.

Sincerely yours,

Rabbi Reuben Bulka
Congregation Machzikei Hadas, Ottawa

Terrence Prendergast, S.J.
Archbishop of Ottawa

Imam Sarni Metwally
Ottawa Main Mosque

CC:
President of the Ontario Medical Association
President of the Canadian Medical Association
President of the College of Family Physicians of Canada