The importance of religion in Canada is reflected in the Canadian Charter of Rights and Freedoms, both in section 2(a)’s guarantee of “freedom of conscience and religion” and in the inclusion of “religion” as a protected ground under section 15’s equality provision. As all guarantees, these are subject to section 1’s justification for limiting rights, which are “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”. And as do other rights, those related to religious belief may come into tension with other rights and guarantees.
In January 2018, the Ontario Divisional Court in The Christian Medical and Dental Society of Canada v. College of Physicians and Surgeons of Ontario (2018 ONSC 579), ruled that two policies of the Ontario College of Physicians and Surgeons that physicians who on conscientious or religious grounds refuse treatment must refer the patient to a physician who will provide treatment. A group of doctors and a group of professional organizations are challenging that ruling.
One of the policies, Professional Obligations and Human Rights , did not specify which human rights it addressed, but it stemmed from an earlier policy, Physicians and the Ontario Human Rights Code. It provides not only that physicians must refer patients in a timely way, but also that regardless of their objections, physicians with objections must provide treatment in an emergency. Following the Supreme Court of Canada’s decision in Carter v. Canada (Attorney General) The College developed the second policy to address objections to provide medically assisted dying. Neither policy has been transformed into a regulation or guideline, nor does it carry
penalties. Objecting doctors do not need to refer a patient to another physician; it is sufficient to refer to an agency that makes referrals.
The Divisional Court held that the doctors’ rights are infringed by the policies, but that they are justified under section 1 of the Charter. It held at para.195 that “s. 7 of the Charter confers a right to equitable access to such medical services as are legally available in Ontario and provided under the provincial healthcare system. Such a right is a natural corollary of the right of each individual under s. 7 to “life, liberty and security of the person”. Furthermore, “the right to equitable access to health care” attracts “the fundamental concepts of human dignity, individual autonomy and privacy”, which are protected by section 7. Doctors, it continued at para.196, do not have a right to practice medicine, including a constitutionally protected right, and the licence to practice is to be governed by the public interest. The real issue is whether the policies deny the objecting doctors a real choice in practising their religion and, if so, whether this is outweighed by the public interest in ensuring to the degree possible patients’ access to treatment.
Supreme Court of Canada jurisprudence does not ask a great deal of someone making a claim under Charter religion provisions. Syndicate Northcrest v. Amselem held at para.46 that
freedom of religion consists of the freedom to undertake practices and harbour beliefs, having a nexus with religion, in which an individual demonstrates he or she sincerely believes or is sincerely undertaking in order to connect with the divine or as a function of his or her spiritual faith, irrespective of whether a particular practice or belief is required by official religious dogma or is in conformity with the position of religious officials.
In short, a person’s religious beliefs are in essence what they say they are. Once a person has established the claim under section 2(a) or section 15, the inquiry moves to whether limitations on the person’s ability to act on those beliefs impairs their exercise in more than a trivial way. An exception to this process is found in B. (R.) v. Children’s Aid Society of Metropolitan Toronto, in which Jehovah’s Witness parents refused to allow doctors to undertake a blood transfusion for their month-old baby (who was subsequently made a ward of the Crown temporarily and received the transfusion). The majority held that there was a serious limitation on the parents’ freedom of religion; however, four justices held that freedom of religion did not extend to actions that threatened the health or life of the child. (One must note that both College policies and section 2(a) of the Charter also protect freedom of conscience; therefore, presumably, doctors who do not link their beliefs to a religion could also refuse treatment to a patient, as long as they complied with the policies).
In The Christian Medical and Dental Society of Canada, no one appears to question that the doctors satisfy the Amselem test; however, the College maintains that for several reasons the policies do not constitute a significant limitation on the doctors’ beliefs. This position was carefully considered by the Divisional Court and rejected, rightly so, in my view. The treatments at issue (contraception, abortion and medically assisted dying) have significant connections to some religions. Accordingly, although the doctors are not expected to provide the treatment themselves, they are expected, in a sense, to provide a means by which the treatment can be undertaken through the referral process required by the policies.
Under section 3 of the federal Civil Marriage Act (also reflected in the Preamble), religious institutions and clergy cannot be compelled to perform same-sex marriages. Civil officials, subject to provincial law, however, can be. One might argue that doctors should put aside their personal views when they become participants in the health care system. However, this would not be consistent with the current expectations in other areas, including performing same-sex marriage, for example. Under section 3 of the federal Civil Marriage Act (also reflected in the Preamble), religious institutions and clergy cannot be compelled to perform same-sex marriages. Civil officials, subject to provincial law, however, can be.
Are doctors akin to civil officials because they are part of the health care system? There is no question that doctors are expected to exercise their professional judgement in determining whether patients require particular forms of treatment (but not to insist that the patient have the treatment performed, except in certain cases, such as minors); they can refuse to provide treatment under certain circumstances or refuse to accept someone as a patient, as long as the reasons are not discriminatory or otherwise breach College regulations.
Rather than take the position that doctors must be willing to perform procedures or, for example, provide contraception, regardless of the needs of patients (except in the case of emergencies), the College has sought to balance the religious rights of doctors with the right of patients to receive health care that they would otherwise be receiving by trying to ensure that patients would not be left without care or without requiring patients to seek out doctors willing to provide the care. (How wrong this all can go was illustrated by the Roman Catholic hospital that refused to assess a patient for medically assisted dying on its premises, with the result that the assessment took place on a busy street, and the patient had to move to a strange facility for the assistance in dying.)
In some cases, the refusal to provide the treatment requested, particularly in small towns where there may be few options, the anxiety that might be caused by the need to find a willing doctor, the deprivation of dignity or the perception that treatment that is a permitted service under the Canada Health Act is “immoral”, as well as other consequences, might well be “doing harm” to the patient, contrary to the oath that is intended to govern doctors’ practice. Nevertheless, the College permits doctors to make decisions that might have such ramifications in order to respect the doctors’ religious beliefs. The doctors and organizations base their appeal of the Divisional Court’s decision in part on the lack of evidence that the refusal to provide referrals results in harm to patients, that the referrals improve care and that physicians are harmed by the policies (for example, they may have to retrain in another medical area if they are unable simply to refuse treatment).
Under section 1 of the Charter, the Court of Appeal must consider in the end whether the objections doctors have to providing treatment because of their personal beliefs should outweigh the difficulties that may face patients who are unable to receive treatment permitted by law. Doctors have freedom to exercise their religious beliefs and not to be constrained in doing so, directly or indirectly. Patients have a right to treatment in an appropriate way. The referral policies respect the former to the point at which they risk interfering with the latter unduly. Both rights are respected, but both are limited. That is the nature of the Charter freedoms and guarantees.
In its Principles of Practice and Duties of Physicians, the College of Physicians and Surgeons provides the framework within which this effort to resolve the tension between the rights of doctors and the rights of patients can be considered; it makes clear that the referral policies are an exception to the usual obligations doctors are expected to satisfy:
Physicians have a fiduciary duty to their patients—because the balance of knowledge and information favours the physician, patients are reliant on their physicians and may be vulnerable. The patient must always be confident that the physician has put the needs of the patient first. This principle should inform all aspects of the physician’s practice.
Physicians are expected to make their patient’s needs the first priority, but accomplishing this requires a broader focus than the direct physician-patient relationship. In order to meet individual patient needs, physicians should consider their contributions to their individual patients, but also to their own practice, the community, and the health care system. Physicians hold a respected position in society and, in return, they have responsibilities. Physicians should never forget that their primary responsibility is to the patient standing before them, either individually or collectively.
This does not mean that doctors should sacrifice their own health; it does not mean that there may be cases where doctors must take action in relation to a patient that is necessary to protect other patients or the public; and, it is unlikely that a court would dismiss doctors’ religious freedoms out of hand. But in all these cases, the doctors must consider the impact of their actions on their patients. Doing so conforms both to a nuanced Charter analysis and to the Principles of Practice.