Recently the Ontario Divisional Court ruled[1] that Ontario doctors must refer patients for all procedures and drugs, including abortion and assisted suicide, even if they conscientiously object. The Court held that “equitable access” to health care services is of “sufficient importance to warrant overriding” the right of religious freedom.

Background of the Case

The College of Physicians and Surgeons of Ontario (CPSO) regulates doctors and the practice of medicine in Ontario. The case centres around two CPSO policies:  Professional Obligations and Human Rights and Medical Assistance in Dying (MAID), both of which require an “effective referral”.

An “effective referral” means that a doctor must refer patients to a “non-objecting, available, and accessible” physician, “in a timely manner” ensuring that the patient is “not exposed to adverse clinical outcomes” because of delay. In practice it means that if you are a pro-life doctor and your patient wants an abortion, you must refer her to a clinic or a doctor who will provide the abortion.

In the case of assisted suicide, while the Supreme Court stated that nothing would compel physicians to provide assistance in dying, the CPSO was very careful to explain that it does not consider effective referral to be “assisting” in MAID.  So it avoided the Supreme Court’s affirmation of physicians’ rights and, just like the abortion example above, doctors who object to assisted suicide are nonetheless obliged to refer.

The Christian Medical and Dental Society (CMDS) along with others [2], including individual doctors, challenged these policies as violating various Charter rights including freedom of religion, freedom of conscience, and equality on the grounds of religion. 

What You Need to Know

The unanimous 3-judge panel concluded that while religious freedom was violated by requiring effective referral, the Policies nonetheless “represent reasonable limits on religious freedom.”

The Court Found a Religious Freedom Violation

The Court accepted that the doctors were sincere in their religious belief and that effective referral resulted in more than a trivial or insubstantial violation of religious freedom (that’s the legal test) [3]. It was undisputed that the doctors involved believed it was immoral and sinful to provide or refer for abortion and assisted suicide.

Religious freedom was violated because referral can lead directly to the procedure; the link between referral and procedure is not too distant or tenuous. In any event, the Court agreed it is not its role to decide where doctors should draw the line as to what degree of participation would be sinful. And while there may not (yet) be a specific penalty for violating the Policies, they set out expected standards of professionalism and evidence of their breach can support allegations of professional misconduct. This “moral suasion associated with the Policies” was sufficient to constitute a Charter violation.

The Court Found “Equitable Access” for Patients More Important than Religious Freedom

But that is not the end of the legal analysis. Violations can be justified.  The government, or in this case CPSO, must prove it is trying to meet a really important objective and doing so in a way that minimally violates the Charter. It must also show that the benefits of meeting that important objective outweigh the drawbacks of violating Charter rights. If these are proven, the violation can be justified. And that is exactly what happened in this case.

The objective was identified as facilitating equitable patient access to health care in the context of a publicly funded health care system and a patient-centered environment. And when the Court weighed the positive impact of effective referral for patients against the negative impact of referral for doctors’ religious freedom, religious freedom lost.

What were those impacts? In the Court’s view, effective referral eliminates patients’ emotional distress, the possibility that patients would become ineligible for treatment due to delay (i.e. ‘morning after’ pill), and the “shame and stigmatization” patients feel when doctors don’t refer, among other things.

Conscience-protecting alternatives were deemed insufficient to ensure patient access and the Court remained unmoved in the face of evidence that other provinces have found ways to both respect conscientious objectors and maintain patient access.

On the other hand, the Court struggled to clearly identify any significant negative impact on doctors and concluded that to the extent that there is any conflict between doctors’ rights and patient interests, the rights of doctors, as gatekeepers to health care services, must acquiesce.

All of this was decided even though there was no evidence to show that patient access to health care was ever a problem caused by conscientiously objecting doctors. 

Read More