Re: Professional Obligations and Human Rights
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]