Category: Law

Submission to the College of Physicians and Surgeons of Ontario

Re: Professional Obligations and Human Rights

Evangelical Fellowship of Canada

The Evangelical Fellowship of Canada (EFC) welcomes this opportunity to participate in the dialogue about the College of Physician and Surgeons (CPSO) draft policy on “Professional Obligations and Human Rights.” The EFC is a national association of denominations, ministry organizations, post-secondary educational institutions including universities, seminaries and colleges, and local congregations. Some of our affiliates provide medical and health care in Canada and overseas, and many physicians are members of our affiliated denominations. The Christian Medical Dental Society (CMDS) is an affiliate of the EFC and we endorse the submission made by the CMDS and the Canadian Federation of Catholic Physician Societies (CFCPS) dated February 11, 2015.

The EFC is active in promoting the religious freedom of all persons. We agree that physicians ought to respect the rights and freedoms, and the diversity of all patients, and treat all with the same respect and dignity.

We also affirm the rights and freedoms of physicians and surgeons, including their freedom of conscience and religion. Our concern with the draft policy is that it requires doctors to provide an effective referral for services, and in some situations, undertake procedures that violate the conscience and/or religious beliefs of some doctors.

The freedoms of patients and of doctors are protected under the Charter of Rights and Freedoms (Charter).The CPSO is bound by the Charter and must not enforce policies that violate the rights or freedoms of either its members or their patients. It must make every effort to ensure that a system is in place to ensure that a physician is not compelled to participate in undertaking procedures or prescribing pharmaceuticals that violate their freedom of conscience and religion.

As noted in the brief of the CMDS and the CFCPS, there is no right for a patient to demand and receive a particular service from a specific physician. It is the health care system that is obligated, not the individual physician, and the system established for the delivery of services must respect the diversity and plurality of both those who access the system and those who provide the services. The onus is on the health care system, and in this case the CPSO, to devise policies that respect and accommodate the Charter rights and freedoms of both the patients and the physicians. We are concerned that under the proposed policy the burden is being placed on the individual physician when it is the CSPO which is bound by the Charter and has a duty to accommodate the Charter rights of both patients and the physicians. The CPSO policy must balance the rights of all involved and ensure the rights and freedoms of all are respected and accommodated.

The draft policy refers to the Ontario Human Rights Code (Code) which sets out the rights of Ontario residents to receive treatment without discrimination. However, the
Code does not compel a service provider to provide all services demanded by a client or customer. If a service is not offered, whether it be a particular food in a restaurant or a certain type of repair by a mechanic, there is no discrimination as long as all customers are treated the same. Human rights codes are intended to protect people seeking a service from being denied that service if it is otherwise offered to others. A physician refusing to undertake a certain procedure which violates his or her conscience or religious beliefs does not constitute discrimination toward the patient seeking a treatment the physician does not offer.

Further, providing an effective referral involves more than providing information about clinical options. Providing a referral means the doctor is convinced that in their judgment the best interest of the patient is served by a particular course of medical treatment or procedure. By providing the referral, the doctor is taking direct action and is, in effect, prescribing a course of action or treatment for a patient. Some doctors believe that providing an effective referral is morally the same as providing the course of action or treatment itself. To compel them to do so, then, is a violation of their rights and freedoms.

All doctors, including those with deep religious convictions, desire to serve their patients in an open and non-discriminatory manner. In a religiously, ethnically, culturally and morally plural society, the duty to accommodate extends to all, both to the patient and the physician.

One of the key values identified in the draft policy is trustworthiness. Compelling a physician to undertake a procedure or to refer a patient for a procedure that they do not believe is in the best interest of their patient, and which may harm their patient, undermines this value. Forcing a physician to violate their conscience undermines the moral integrity of the physician and the honest, respectful and open relationship that should exist between the patient and physician.

We urge the CPSO to revise the draft policy to ensure the Charter rights and freedoms
of all impacted by the policy are affirmed and respected.

Submission to the College of Physicians and Surgeons of Ontario

Re: Professional Obligations and Human Rights

Ontario Medical Association

The Ontario Medical Association is grateful for the opportunity to provide comments on the College’s draft policy Professional Obligations and Human Rights. The OMA undertook a broad member consultation to gather views on the draft policy. The OMA Board deliberated extensively on the draft policy and the implications it could have for physicians’ freedom of conscience. This Association struggles with endorsing the draft policy which, although progressive in its efforts to ensure patient access, forces physicians to take actions that may conflict with their fundamental beliefs. We disagree that enforcing a single, strict ‘rule’ governing physician behaviour when it comes to an issue as personal as moral or religious beliefs is feasible. We suggest that the College withdraw the current draft and undertake further study, particularly given the direct comment on point in the recent Supreme Court decision in Carter v. Canada.

Both patients and physicians are protected under the Ontario Human Rights Code as well as the Canadian Charter of Rights and Freedoms. That being the case, it is imperative that the policy does not undermine a physician’s right to freedom of conscience. Furthermore, the decision emphasized the need to reconcile patient and physician protections. The draft policy has not reconciled these protections since an “effective referral” (an affirmative action that contributes to the outcome) cannot be said to address the physician’s right to freedom of conscience. This recent Supreme Court decision provides further evidence that the policy must have flexibility in terms of the options available to physicians who are unable to provide services because of moral or religious beliefs.

We propose that this policy not focus on forcing physicians to perform services to which they object. Instead, the policy should focus on improving information about and access to alternative options. The OMA believes that in circumstances where the physician is unable to personally provide medical services, he or she must not impede the patient in accessing those services elsewhere. The issue of access when it comes to contentions medical services is a complex one that will require stakeholder collaboration to develop a more nuanced approach “Effective referral” represents only one tool – a fairly blunt one at that – we can use to resolve these conflicts. The policy should contemplate intermediate options. For example, the College might allow physicians to post general information about their scope of practice in a visible place for all patients. Another option would be for the policy to allow physicians to make generic referrals to third party organizations or agencies that maintain information about service providers. Incorporating any of these approaches would require further discussion.

We understand that the goal of this policy is to protect patient dignity and ensure patients can access the medical services they seek and we support that aim. However, we believe the College will have more success in achieving its goal if physicians are not forced to comply with a rigid process that may present serious moral dilemmas and diminish their dignity. In reassessing this draft policy, we urge the CPSO to consider the fact that physicians are also protected under the Code and that the College will be obliged to consider the Code when determining whether physicians’ conduct is consistent with the College’s expectations.

Thank you for considering these comments.

Submission to the College of Physicians and Surgeons of Ontario

Re: Professional Obligations and Human Rights

Christian Medical & Dental Society, Canadian Federation of Catholic Physician Societies

The Christian Medical and Dental Society of Canada (“CMDS”) and the Canadian Federation of Catholic Physician Societies (“CFCPS”) welcome this opportunity to provide feedback to the College of Physicians and Surgeons of Ontario (“CPSO”) on the draft policy “Professional Obligations and Human Rights”. Together our organizations represent 1800 physicians, all of whom are seriously concerned about the implications of the policy and their ability to continue to practice medicine should the policy be passed.

Freedom of conscience

Freedom of conscience is protected under the Canadian Charter of Rights and Freedoms. As a creature of provincial statute, the CPSO is bound by the Charter, and must respect it. Yet this draft policy requires physicians to refer for, and in some cases carry out services that are contrary to their conscience. (Lines 156-168)

Conscience rights were recently reasserted by the Supreme Court of Canada in the Carter case. The Court confirmed that “a physician’s decision to participate in assisted dying is a matter of conscience” (para 132). The Court favourably cited the factum of the CMDS and CFCPS who had reproduced the comments of Justice Beetz in Morgentaler (para 132), who stated that a physician could not be compelled to participate in abortion. These comments are directly applicable to the draft policy and we urge the CPSO to revise the draft in light of the Supreme Court’s decision.

The reasoning of the Carter case can also be used to determine whether s.1 of the Charter can be used to limit doctors’ freedom of conscience. The Carter case made clear that in the absence of evidence that patients are being denied a Charter right, the Court will determine that it is not necessary to force physicians to refer patients or perform procedures in violation of the physician’s Charter right to freedom of conscience and religion. It is noteworthy as well, that the Charter does not apply to physicians, but rather, protects them. Under the principles in Carter physicians who object to engaging in certain procedures or pharmaceuticals, including through referrals, will be successful if they can show that there is a regulatory system that ensures access to procedures like abortion and euthanasia without incorporating the conscientiously objecting physician into the process of referral. This test is already met, because in Ontario patients can access abortion through self- referral. There is no reason to insist that a conscientiously objecting physician refer for abortion when the patient already can self refer.

Furthermore, it is not the CPSO’s role to ensure access to abortions. Even if it were, there would be an onus on the CPSO to prove that it cannot ensure access to abortions without infringing on the Charter rights of individual physicians (para. 118). A theoretical or speculative fear cannot justify an infringement (para. 119).

There is no human right in Canada to demand and receive particular services from a specific physician. Provincial human rights legislation prohibits discrimination against the public on a number of grounds that include among others, race, ethnicity, sex, religion, sexual orientation, age or disability. Human rights legislation 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. If the restaurant chooses to exclude people of a particular ethnic group, however, that would amount to discrimination and a violation of provincial human rights legislation. In the same way, a physician who is unable to participate in a procedure or prescribe a pharmaceutical product for moral or religious reasons is not discriminating against his or her patient provided all patients are treated the same. Unfortunately, this draft policy suggests that a physician’s objection to a specific procedure or pharmaceutical may be a 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.

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. [Full text]

Midwives left with £300,000 legal bill after abortion conscience fight

Catholic Universe

The Catholic midwives who fought against being involved with terminations are facing a six-figure legal bill after the Supreme Court ruled against them.

The Society for the Protection of Unborn Children (SPUC), the anti abortion charity that backed the pair’s battle to be considered conscientious objectors, said it plans to raise funds to help with costs, which are estimated to be as much as £300,000. . . [Full Text]

 

Supreme Court of Canada orders legalization of physician assisted suicide – AND euthanasia

Physicians unwilling to kill already face demands that they find someone who will

Protection of Conscience Project News Release

In a 9-0 ruling the Supreme Court of Canada struck down two sections of Canada’s Criminal Code “insofar as they prohibit physician-assisted death” in circumstances outlined by the Court. It appears that most or all of the major media outlets understood this to mean that the Court had legalized physician assisted suicide.

In fact, the Court has authorized physicians not only to help eligible patients commit suicide, but to kill them – whether or not they are capable of suicide. The ruling permits both physician assisted suicide and physician administered euthanasia in the case of competent adults  who have clearly consented to being killed, and who have a grievous irremediable medical condition “including an illness, disease or disability” that causes “enduring suffering that is intolerable to the individual.”

The Court limited its ruling to the facts of the Carter case, but offered no opinion “on other situations” where physicians might be asked to kill patients or help them commit suicide. It is highly likely that the parameters set by the Court in Carter will be expanded in federal or provincial laws or in later litigation. It would certainly be a serious mistake to presume that the goalposts set in Carter will not be moved.

Even where euthanasia and assisted suicide are legal, most physicians are unwilling to do what the Supreme Court of Canada now expects Canadian physicians to do: lethally inject patients and write prescriptions for lethal medications.

However, acknowledging the joint intervention of the Protection of Conscience Project, Catholic Civil Rights League and Faith and Freedom Alliance and submissions by others, including the Canadian Medical Association, the Court stated: “In our view, nothing in the declaration of invalidity which we propose to issue would compel physicians to provide assistance in dying.”

The judges noted that “a physician’s decision to participate in assisted dying is a matter of conscience and, in some cases, of religious belief,” and that “the Charter rights of patients and physicians will need to be reconciled.”

Unfortunately, euthanasia activists understand “reconciliation” to mean that physicians unwilling to kill patients or help them kill themselves should be forced to refer them to a colleague willing to do so. This is the view of Dr. James Downar, a Toronto palliative care physician, who told the Canadian Medical Association Journal that it is critical to ensure all Canadians have access to “physician assisted dying.”

Commenting on the remarks attributed to Dr. Downar, Protection of Conscience Project Administrator Sean Murphy noted that many other palliative care physicians were concerned about ensuring access to palliative care, not finding physicians willing to kill patients.

“They certainly aren’t inclined to force colleagues to participate in assisted suicide and euthanasia,” he said. “Quite the contrary: many would refuse to direct patients to physicians willing to kill them or help them commit suicide.”

“Carter is not the last word on the euthanasia, assisted suicide and freedom of conscience,” he added, “but only the first of many to come.”

For details, see Supreme Court of Canada orders legalization of physician assisted suicide – AND euthanasia