Category: Legal Commentary

Submission to the College of Physicians and Surgeons of Ontario

Re: Professional Obligations and Human Rights

Justice Centre for Constitutional Freedoms

Summary

The draft Policy “Professional Obligations and Human Rights” (the “Draft Policy”) proposed to the College of Physicians and Surgeons of Ontario (the “College”) contains a number of critical legal errors, which render the affected portions of the Draft Policy constitutionally indefensible.

The Draft Policy incorrectly assumes that patients enjoy a legal right to access even controversial medical services from any and every physician. In fact, patients have virtually no legal rights to medical care. The Courts have expressly stated that there is no Charter right to health care, or to any particular health services. Conversely, the Charter expressly protects physicians’ religious and conscience rights. The civil government, and government bodies such as the College, cannot violate physicians’ Charter rights to freedom of conscience and religion unless such violation is demonstrably justified. In light of the context of health services in Ontario, the purposes of eliminating discrimination and promoting access to health care, while praiseworthy, do not justify the Draft Policy’s violation of physicians’ Charter rights.

The Draft Policy purports to address discrimination in the provision of health services, and repeatedly references Ontario’s Human Rights Code. However, a physician who is unable to provide or refer a patient for a particular health service on account of the physician’s sincere religious or conscientious belief is not engaging in discrimination; this inability or refusal does not violate the Code. The inability to provide or refer for that health service is not based on or related to the patient’s personal characteristics (e.g. age, gender, religion, disability, etc.). Rather, this inability to provide a particular service or referral stems from the physician’s religious or conscientious belief that the service in question causes harm.

Promoting access to health services is a commendable objective. No one could deny that in many areas health services are subject to undesirable even unacceptable delays. And despite the Supreme Court’s ruling in Chaoulli c. Quebec, 1 the effective prohibition of private health insurance impedes many Canadians in accessing timely health services. However, there is no basis on which to conclude that physicians, by exercising their freedom of conscience, actually impede access to health care. Some patients may occasionally experience minor inconvenience when informed by a physician that reasons of conscience prevent the physician from providing or referring with respect to a desired service. However, with an abundance of physicians and facilities available to perform such controversial services,2 patients will still receive these services in timely manner. The Draft Policy neither provides nor points to any evidence showing that controversial services such as abortion suffer greater delays in access to care than noncontroversial services, such as knee surgery.

The clinical aspect of the practice of medicine cannot be separated from the moral, religious and ethical beliefs of physicians that form an essential part of providing health services to other human beings. The Draft Policy’s attempt to separate the “clinical” from the “moral” in the practice of medicine is a dangerous and destructive step that contradicts the ethical foundations of medicine that have existed for millennia.

Government bodies such as the College have an obligation under the Charter and Ontario’s Human Rights Code to accommodate the religious and conscientious beliefs of physicians to the point of undue hardship. The Draft Policy ignores this obligation entirely, while incorrectly asserting a need to “balance” Charter rights with the wishes and desires of patients. These wishes and desires are not legal rights.

The Draft Policy’s requirement that physicians provide referrals for, and in some cases perform, services which they sincerely believe are morally wrong is grossly deficient from a Charter perspective, and if adopted would be found unconstitutional by a court. A referral is not a morally neutral action, as the College itself recognizes. Further, the drastic measure of forcing physicians to violate their consciences by performing services they believe are wrong is vague and subjective, making it impossible to qualify as a reasonable limit on physicians’ conscience rights. The College cannot point to evidence of a pressing need that would justify these requirements.

The College should seek to support physicians’ adherence to their own individual consciences.  Alternative measures which reasonably accommodate physicians with religious or conscientious objections should be developed and implemented. [Full text]

 

An attack on the conscience rights of physicians

National Post
Reproduced with permission

John Carpay

Ontario’s College of Physicians and Surgeons is determined to force every family doctor to participate in abortion and euthanasia, either by providing these services, or by referring patients to other doctors who will.

The College dismisses Charter-protected conscience rights as “personal values and beliefs” that are not nearly as important as “clinical” beliefs. This distinction is wholly artificial, as shown by the very existence of modern medical ethics. There is nothing clinical or scientific about the moral prescriptions in the Hippocratic Oath: To “take care that patients suffer no hurt or damage” and to “use knowledge in a godly manner.” This “sacred oath” cuts across religious, philosophical, and political boundaries, and has been the bedrock of the physician’s pledge to his patients and society for over two millennia.

Medical ethics, both ancient and modern, are based entirely on religious and moral beliefs. A doctor guided by science to the exclusion of morality is inherently untrustworthy. A good doctor acts on both moral and scientific beliefs.

The college’s draft policy on doctors’ professional obligations assumes that patients have a “right” to receive whatever medical services they may desire from any doctor. The college provides no basis for this assumption, because, in fact, patients do not enjoy a legal right to obtain whatever medical services or treatments they want.

The college’s justification for coercing pro-life doctors into referring patients for abortion or euthanasia services relies heavily on Ontario’s Human Rights Code. But the code says nothing about which medical procedures should be available to patients, or whether all doctors must be willing to provide them. The code merely requires doctors to serve all patients equally, regardless of the patient’s age, race, gender, religion, etc. The code would, for example, prohibit a pro-choice doctor from providing abortions only to patients of some ethnic groups, but not others.

The college then jumps to the argument that a doctor’s Charter-protected freedom of conscience and religion needs to be “balanced” against a patient’s “right” to receive desired services from every doctor. But there is no need to balance a Charter right against another right that doesn’t exist.

The college claims that refusing to participate in abortion and euthanasia amounts to “impeding” access. This argument is quite a stretch. If a doctor refuses to prescribe an abortion-inducing drug to a patient, that doctor is certainly causing the patient inconvenience. But in no way is that doctor “impeding” the patient from obtaining the drug from other doctors, the vast majority of whom routinely prescribe such drugs.

While claiming to be concerned about patients’ access to health care, the college ignores the Supreme Court’s ruling in Chaoulli v. Quebec, which declared that “access to a waiting list is not access to health care.” The court in Chaoulli was unanimous in holding that a government monopoly over health care, when it condemns patients to suffer and die on waiting lists, violates the constitutional rights of Canadians.

When it comes to essential health services like cancer diagnosis, cancer treatment and orthopaedic surgery, politicians in Ontario and other provinces have passed laws that make it effectively illegal for patients to use their own after-tax dollars to buy private medical services and private health insurance. The college is not troubled by the fact that patients are entirely at the mercy of the bureaucrats and politicians who run the Ontario government’s health-care monopoly, and who alone decide what medical services patients will and will not have access to.

In short, the college’s attack on physicians’ conscience rights has nothing to do with patients’ access to health care. In light of the willingness of most doctors to provide or refer for abortion and euthanasia, the minority of pro-life doctors are making a statement, not impeding access. But rather than advocate for expanded access to all kinds of health care for all patients, the college acts ideologically to remove all visible opposition to its own popularly accepted moral beliefs. This ideological attack strikes at the root of Canada’s free society, which should welcome the full participation of all persons, even those with unpopular convictions.

 

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]