Effective Referral Policy Upheld in Ontario

Following the Supreme Court of Canada’s decision in Carter v. Canada, amendments to the Criminal Code and other statutes allowed for some instances of physician-assisted death to be used in Canada. These amendments received Royal Assent through Bill C-14 on June 17, 2016, through what is now called Medical Assistance in Dying (MAiD).

The fourth and final interim report on MAiD by the Government of Canada confirmed that 6,749 medically assisted deaths occurred in Canada since legislation came into force on December 10, 2015 in Quebec, and on June 17, 2016 in the rest of Canada, to October 31, 2018, demonstrating a clear need for the legislative changes.

Bill C-14 allows for MAiD through only two specific procedures:

  1. Where a physician or nurse practitioner directly administers a substance that causes death to a person who as requested it; and,
  2. Where a physician or nurse practitioner gives or prescribes a substance to a patient that they self-administer to cause their own death.

The role of the health care practitioner in this process is an important safeguard against the abuses warned against in Carter. Hon. Murray Rankin, stated during the debate on June 16, 2016,

The safeguards in the bill reflect many things. They provide the high degree of care, caution, and scrutiny that is necessary to match a court ruling that was broad in its compassion for the right of suffering Canadians to choose. They reflect the confidence that Canadians have in the skill and judgment of our health care professionals, and they reflect the realities of our vast and diverse country, and the principles of equity that undergird our public health care system, of which Canadians should be so proud.

Some concerns about the impact on some health care professionals were expressed at an early juncture. Cardinal Thomas Collins, the Archbishop of the Archdiocese of Toronto stated to the Standing Committee on Justice and Human Rights on May 3, 2016, on behalf of the Coalition for HealthCARE and Conscience,

We see no reference to conscience rights in Bill C-14. The preamble to the legislation notes that the government respects “the personal convictions of health care providers.” While that respect is appreciated, it does not carry the same legal weight as legislative protection. No foreign jurisdiction in the world that has legalized euthanasia/assisted suicide forces health care workers, hospitals, nursing homes, or hospices to act against their conscience or mission and values.
It appears that the federal government is leaving this issue to the provinces and territories for consideration, but if the federal government enacts a law that establishes euthanasia/assisted suicide across Canada, it needs to provide robust protection of conscience rights across Canada.
It is essential that the government ensure that effective conscience protection is given to health care providers, both institutions and individuals. It is simply not right or just to say to an individual, “You do not have to do what is against your conscience, but you must make sure it happens.” It is equally unjust to require a health care facility to repudiate its institutional conscience or mission. We would note that no health care facility in Canada makes every procedure available to its patients.

My submissions to the Canadian Senate on May 11, 2016, also emphasized the need to protect conscientious objectors from liability,

Bill C-14 gives medical practitioners a central role in the decision-making process, and consequently, there should be safeguards for “conscience rights” of all medical practitioners. Medical practitioners should be able to say no to issues they believe to be a moral wrong.

According to a poll conducted by the Canadian Medical Association (CMA) in Halifax, only 29% said they would consider killing a patient upon request, and only 19% said they would consider killing someone who was suffering psychological harm.

The Supreme Court of Canada at paragraph 132 specifically stated, “the Charter rights of patients and physicians will need to be reconciled.” This comment ought not to be disregarded.

In Ontario, this balance came in the form of the College of Physicians and Surgeons (CPSO) Policy #4-16, which was adopted on June 21, 2016. The policy states that physicians cannot be compelled to provide MAiD as they might be required to with other medical services, because these are not emergency situations.

Instead, where a physician refuses to provide MAiD due to freedom of conscience or religion, it should be done with respect to patient dignity and sensitivity, and should not express moral judgements to the patient. The physician must not impede access to MAiD, and provide the patient with all information about options for care, without withholding information about procedures and treatment that may conflict with their beliefs,

Where a physician declines to provide medical assistance in dying for reasons of conscience or religion, the physician must not abandon the patient. An effective referral must be provided. An effective referral means a referral made in good faith, to a non-objecting, available, and accessible physician, nurse practitioner or agency. The referral must be made in a timely manner to allow the patient to access medical assistance in dying. Patients must not be exposed to adverse clinical outcomes due to delayed referrals.
[emphasis added]

The CPSO Policy makes reference to resources available through the Ministry of Health and Long-Term Care, and also references information in a Fact Sheet from the College. The Fact Sheet allow physicians to obtain advice in these circumstances, and identifies alternative forms of practicing to avoid these conflicts, such as the hospital or healthcare provider diverting these patients to non-objecting physicians.

Finally, the Policy on MAiD makes reference to the CPSO Policy Statement #2-15 – Professional Obligations and Human Rights Policy which has a general provision for conscientious objectors. The Human Rights Policy dates to 2008, with amendments in 2015, and explicitly references the Charter and the Ontario Human Rights Code, and applies more broadly than MAiD to include other medical services where physicians may have other religious or conscientious objections, such as abortion or stem cell research.

The Human Rights Policy cites R. v. Big M Drug Mart Ltd. at para 95, to support the proposition that freedom of conscience and religion can be limited under s. 1, “to protect public safety, order, health, or morals or the fundamental rights and freedoms of others…” Citing Dagenais v. Canadian Broadcasting Corp., there is no hierarchical approach towards rights, and referring to R. v. Morgentaler, emphasizes the impact of patient rights under the Charter and Code where a physician may choose to limit health services based on their own beliefs,

While the Charter entitles physicians to limit the health services they provide for reasons of conscience or religion, this cannot impede, either directly or indirectly, access to these services for existing patients, or those seeking to become patients.

Physicians owe a unique fiduciary duty to their patients, which requires them when limiting the health services they provide based on their beliefs to do so in a manner that respects patient dignity, ensures access to care, and protects patient safety. In cases of emergency, the fiduciary duty of a physician requires them to provide care, even when it conflicts with their beliefs.

This special duty is explained more fully in the CPSO Practice Guide, which states,

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.

[emphasis added]

Although this duty means placing the needs of the patient first, the Practice Guide explains that it also means focusing on the broader impacts of the physician-patient relationship. This means that physicians must consider their roles beyond individual patients, but also to their practice, communite, and the entire health care system. The respected positions of physicians in society comes with corresponding responsibilities.

In other words, the fiduciary duty owed by the physician to the patient is not simply through treatment, but as gatekeepers and providers of important information to access the health care system. CPSO is quite clear in Policy #4-16 that they do not consider providing an effective referral in these cases as providing assistance in MAiD, and the Human Rights Policy defines an effective referral as “a referral made in good faith, to a non-objecting, available, and accessible physician, other health-care professional, or agency.”

These policies were challenged last year before the Divisional Court in The Christian Medical and Dental Society of Canada v. College of Physicians and Surgeons of Ontario, as infringing on ss. 2(a) and 15, by several physicians and organizations with a religious interest in objecting to the requirement to provide effective referrals. Procedurally, these challenges came in the form of separate challenges, under Rules 14.05(2) and 38 of the Rules of Civil Procedureand for judicial review, under the Judicial Review Procedure Act. They were both combined before the Divisional Court, and treated in substance as a judicial review.

The Applicants claimed the policies were ultra vires the College, under the Regulated Health Professions Act and its accompanying Health Professions Procedural Code. A strict reading of both would interpret the role of CPSO narrowly, to focus regulating the medical profession by examining competence, qualifications, knowledge, skills, and ethics.

Justice Wilton-Siegel rejected this argument, as CPSO reasonably interpreted its own constating statute, especially in light of their explicit duty “to serve and protect the public interest,” which was further defined as including “that the people of Ontario have access to adequate numbers of qualified, skilled and competent regulated health professionals,”

[80] …the objectives of promoting respect for patient dignity and access to health care are reflected in a patient’s right to equitable access to all health care services that are legally available in Ontario. The Applicants’ reliance on the statement of the Supreme Court in Chaoulli v. Quebec (Procureur Général)[2005] 1 S.C.R. 791 at para. 104 – to the effect that the Charter does not confer a freestanding constitutional right to health care – misses the point.

The Supreme Court also stated in that paragraph that “[h]owever, where the government puts in place a scheme to provide health care, that scheme must comply with the Charter.”

Accordingly, while there may be no right to any particular medical service under the provincial health system, there is a right to equitable access to such services as the government chooses to make available under such system.

However, Justice Wilton-Siegel did conclude that the policies infringed on the s. 2(a) rights of religious freedom, applying the tests in Amselem and Ktunaxa Nation,

[86] The Individual Applicants believe such conduct is sinful or immoral and further believe that they are required by God to refrain from engaging in such conduct. They say that the action of providing their patients with an “effective referral” in respect of elements of care to which they object constitutes complicity in the provision of such elements of care. The Individual Applicants say that they are entitled to protection of their religious beliefs and practices which, in this case, means not being coerced or compelled to engage in the provision of such services.

[89] In this case, the Applicants allege, in effect, that they are subject to coercion in the form of indirect control which determines or limits the courses of conduct available to them in their practice of medicine – specifically, that the Policies force them to act in a manner that is contrary to their religious beliefs and conscience.

What he did not find was an infringement of s. 15, as the policies attempt to take into consideration the actual circumstances of religious physicians, and find a balance with the rights of patients to access to health care. The ameliorative nature of the policies in alleviating potential inequitable access to health care services were important contextual factors.

Where the bulk of the analysis occurred before the Divisional Court was in the s. 1 analysis, focusing on proportionality. CPSO claimed that the policies are important and necessary for equitable access to healthcare, as self-referrals would result in patient harm. They also claimed that the practice of medicine is a privilege with corresponding duties and obligations to patients that physicians are aware of when choosing to be a physician.

The Divisional Court clarified what an effective referral means, in the context of MAiD,

[31] …First, the Policies do not require that a referring physician provide a formal letter of referral to, and arrange an appointment for a patient with, another physician. The CPSO says that the intent of the Policies is to ensure only that patients are not left to finding a willing physician on their own without any assistance from the physician from whom they first sought care. Accordingly, the spirit of the requirements is that the physician take “positive action” to connect a patient with a physician, another health-care professional or an agency. Second, referral may be made to any of a physician, another health-care professional or an agency provided the party to whom a patient is referred provides the requested medical services and is “non-objecting, available and accessible”. In the case of an agency, a referral may be made to an agency that is charged with facilitating referrals for the health care service.

This statement was important in distinguishing CPSO’s requirement of an effective referral from the requirement of a formal referral. The CPSO Fact Sheet provides multiple ways for physicians to comply with the effective referral requirement, including having an entirely different health care professional, such as another physician or nurse, make the referral on behalf of the objecting physician.

In balancing the deleterious effects against the salutary effects of the policies, Justice Wilton-Siegel emphasized that there were important Charter rights of the patients worth considering as well, and stated,

[196] …the Applicants do not have a common law right or a property right to practice medicine, much less a constitutionally protected right.  Rather, a licence to practice medicine is granted by statute subject to regulation pursuant to the principles set out in the RHPA and the Code, among other statutes. These statutes grant the CPSO the authority to regulate physicians with a view to, among other things, protecting the public interest. Those who enjoy the benefits of a licence to practice a regulated profession must expect to be subject to regulatory requirements that focus on the public interest, rather than the interests of the professionals themselves. In this case, physicians are assumed to accept this authority of the CPSO, including the authority of the CPSO to address the requirements of professionalism in the practice of medicine. Accordingly, physicians’ Charter rights should be assessed against the expectation in entering the profession that such rights may be affected in the protection of the public interest.

[197] …physicians in Ontario practice in a single payor, publicly funded healthcare system which is structured on the basis of patient-centered care. Among other consequences of this reality, physicians are required to place the interests of their patients ahead of their own personal interests in the event of a conflict.  This is fundamental for the trust that must exist in the doctor-patient relationship. In addition, physicians must respect patient autonomy by recognizing that a patient has the right to decide upon the treatment plan that best meets his or her health care needs and goals within his or her personal circumstances. Lastly, physicians are subject to a duty not to abandon a patient.

[emphasis added]

The policies were saved by s. 1, despite infringing on s. 2(a), as their purpose was not to interfere with religious practices. Instead, these were limitations that resulted from the incidental effects of policies focused on the goal of ensuring adequate access to health care,

[201] As discussed above, the goals of access to healthcare, and in particular equitable access to healthcare, are important social goals. These are not goals that should be lightly compromised or sacrificed. I do not accept the Applicants’ position which is, in effect, that there is no basis for finding that a policy of permitting physicians to simply provide patients with information that they need to access services themselves would impede patient access to health services in the absence of evidence of actual circumstances in which this has occurred. In my view, the evidence in the record indicates that the goals of the Policies will be compromised or sacrificed in a variety of circumstances, more often than not involving vulnerable members of our society at the time of requesting services, in the absence of the effective referral requirements of the Policies.

[205] The evidence regarding these costs or burdens can be summarized as follows. For many religious physicians practicing medicine in Ontario, the concept of referral of a patient seeking medical procedures to which they object does not constitute “complicity” or “participation” in the provision of such medical services to which they object as sinful or immoral. There remain, however, some religious physicians who do regard the act of referral of patients as the equivalent of the provision of such medical services from the standpoint of their religious beliefs. A number of such physicians, including some of the Individual Applicants, can satisfactorily address their religious concerns by adopting one or more of the options contemplated by the Fact Sheet. In particular, physicians who practice in a hospital, a clinic or a family practice group may be able to address their concerns using one of the two options contemplated for such practices of medicine described above and there is no evidence that the cost of implementation of such options would be onerous. Accordingly, the impact of the effective referral requirements of the Policies is most acutely experienced by religious physicians who do not practice in a hospital, a clinic or a family practice group, or who do practice in such a setting but believe that the options presented in the Fact Sheet do not satisfactorily answer their concerns.

Although for impacted physicians would have some effect on their professional lives, it would not deprive them from practicing medicine. To the extent that there remains a conflict between patient rights and some religious physicians, the context in which these physicians practice medicine in Ontario must be considered.

This decision was appealed, and last week the Ontario Court of Appeal upheld the Divisional Court’s decision, finding the policies were saved by s. 1. The primary focus of the appeal was in the s. 1 analysis, and specifically the minimal impairment and proportionality branches. Instead of an effective referral, the physicians sought a “generalized information” model that would allow objecting physicians to provide patients to public resources and services.

The Appellants introduced fresh evidence about what they considered an erroneous assumption by the Divisional Court that objecting physicians could change their practice or specialities to avoid conflicts with their religious beliefs. Their position was that this assumption undermined the salutary and deleterious effects under the s. 1 analysis. They also introduced information demonstrating the use of hotlines and other information that would make accessibility easier for patients seeking MAiD.

The unanimous decision by the Ontario Court of Appeal, written by Chief Justice Strathy, largely mirrored the decision by the Divisional Court. The Court of Appeal expanded their analysis under minimal impairment to include other areas of medical services through which effective referrals occur, such as contraception, infertility treatment for heterosexual and homosexual patients, erectile dysfunction medication, and gender re-assignment surgery, but most notably given some contemporary issues around it, abortion,

[123] Abortion and MAiD carry the stigmatizing legacy of several centuries of criminalization grounded in religious and secular morality. The evidence discloses that this stigmatization is still evident in some quarters of the medical community and that it can serve, unintentionally or not, as an obstacle, or an outright barrier to these procedures.

[124] The vulnerable patients I have described above, seeking MAiD, abortion, contraception and other aspects of sexual health care, turn to their family physicians for advice, care and, if necessary, medical treatment or intervention. Given the importance of family physicians as “gatekeepers” and “patient navigators” in the health care system, there is compelling evidence that patients will suffer harm in the absence of an effective referral.

What the Appellants greatest flaw continued to be was that their proposals for alternatives were designed to preserve their religious rights when determining minimal impairment, instead of focusing on promoting equitable access to health care. By ignoring the Charter rights of patients, and their interest in the outcome of the proceedings, the Appellants failed to properly determine the interests that were before the court.

The same flaw was made by the Applicants in the Supreme Court of Canada decision of Alberta v. Hutterian Brethren of Wilson Colony, where instead of asking what was minimally required to achieve the legislative goal, they sought to significantly compromise it. The Court in that case stated,

[60] …An exemption for an unspecified number of religious objectors would mean that the [legislative objective] …would be lost. …In short, the alternative proposed by the claimants would significantly compromise the government’s objective and is therefore not appropriate for consideration at the minimal impairment stage.

On this basis, the Court of Appeal rejected the Appellants’ proposed alternative model, stating,

[131] As I have noted, the appellants advance what they now call a “generalized information” model as a less impairing alternative, which they claim meets the College’s objective. They acknowledge, however, that “generalized information” is essentially a different label for what they described as “self-referral” in the Divisional Court, and which the Divisional Court rejected. This model would permit physicians to provide patients with information concerning resources, such as the CCS or Telehealth, to enable patients to locate a non-objecting physician who would provide abortion, MAiD, or other services. They say this is a reasonable and less drastic alternative to an effective referral.

[147] In my view, the appellants’ fresh evidence fails to demonstrate that a “generalized information” model, providing patients with information about the CCS, Telehealth or other similar resources, would address the needs of vulnerable patients seeking the most intimate and urgent medical advice and care. Ultimately, the College considered and rejected “self-referral” models like the model proposed by the appellants. Based on the College’s evidence, the Divisional Court found that “self-referral” models could not achieve the objective of ensuring equitable access to health care given the inevitable risk to vulnerable patients that such models entail. That finding remains uncontroverted.

[157] The same is true here [as in Albertan Hutterian]. The alternatives proposed by the appellants and some of the interveners are directed to minimizing the burden of the Policies on objecting physicians, not to advancing the goal of equitable access to abortion, MAiD, contraception and sexual and reproductive health care. The appellants’ alternatives would compromise the College’s goal, because they would require already vulnerable patients to attempt to navigate the health care system on their own, without any direct personal assistance from their physicians, whom they entrust to act as their navigators for health care services. This would impair equitable access to health care.

Central to the rejection of the “generalized information” model, the court highlighted it would still require patients to self-refer, leaving them with feelings of rejection, shame and stigma that might prevent them from following through and getting the health services they need. Patients would not only have to struggle to find accurate information about MAiD and related resources, but would struggle with understanding the medical system and the resources available to them. Any unnecessary delay in obtaining this information could have significant impacts on the patients.

Using existing evidence by the intervener LEAF around abortion and contraception, the court found that religious objections by physicians already impedes access in Canada, and many women, especially those from marginalized communities, would lack knowledge about the health care system, and understanding of resources available, or the skills to navigate any resources that were made available. This is especially why physicians play an important role in the health care system, beyond providing direct treatment.

Dealing with the fresh evidence introduced by the Appellants, the Court of Appeal examined the onerous procedures of switching into a different speciality. CPSO submitted that changing specialities was not the only option, as physicians could limit their scope of practice to entirely exclude MAiD-related services, or be shielded from patient requests for referrals. Ultimately the Court of Appeal weighed the salutary and deleterious effects in a similar manner of the Divisional Court, but also emphasized where the burden of any deleterious effects for religious objections should fall,

[185] In resolving the balancing exercise, I find much assistance in the submissions of the intervener, Dying with Dignity Canada, which observes that in balancing the salutary effects of the Policies against the deleterious effects on objecting physicians, it was appropriate for the College and the Divisional Court to conclude that patients should not bear the burden of managing the consequences of physicians’ religious objections. It bears noting that the “compromise” arrived at by the College is not optimal for patients, who must accept being referred for MAiD if their physician objects to the procedure. As Dying with Dignity Canada notes, the burden imposed by the Policies is minimal and is acceptable for some of the appellants and for many other physicians. But, as it said:

If a doctor is unwilling to take the less onerous step of structuring their practice in a manner that ensures that their personal views do not stand in the way of their patients’ rights to dignity, autonomy, privacy and security of the person, then the more onerous requirement of a transfer into a new specialty is a reasonable burden for that doctor to bear.

[187] As the Divisional Court observed, the appellants have no common law, proprietary or constitutional right to practice medicine. As members of a regulated and publicly-funded profession, they are subject to requirements that focus on the public interest, rather than their interests. In fact, the fiduciary nature of the physician-patient relationship requires physicians to act at all times in their patients’ best interests, and to avoid conflicts between their own interests and their patients’ interests: College of Physicians and Surgeons of Ontario, The Practice Guide (Toronto: CPSO, September 2007), at pp. 4-5, 7; McInerney v. MacDonald1992 CanLII 57 (SCC)[1992] 2 S.C.R. 138, at p. 149; and Norberg v. Wynrib1992 CanLII 65 (SCC)[1992] 2 S.C.R. 226, at pp. 270-72, 274. The practice of a profession devoted to service of the public necessarily gives rise to moral and ethical choices. The issues raised in this proceeding present difficult choices for religious physicians who object to the Policies, but they do have choices. While the solution is not a perfect one for some physicians, such as the individual appellants, it is not a perfect one for their patients either. They will lose the personal support of their physicians at a time when they are most vulnerable. Ordinarily, where a conflict arises between a physician’s interest and a patient’s interest, the interest of the patient prevails. The default expectation is that the physician is to personally provide their patient with all clinically appropriate services or to provide a formal referral. Patients expect that their physicians will do so. However, the Policies do not require this. They represent a compromise. They strike a reasonable balance between patients’ interests and physicians’ Charter-protected religious freedom. In short, they are reasonable limits prescribed by law that are demonstrably justified in a free and democratic society.

[emphasis added]

If it appears that there are parallels between the Court of Appeal’s approach here and the Supreme Court of Canada’s in Trinity Western, that is probably not a coincidence. The Court of Appeal applied a measure of deference to the regulator’s approach in reconciling competing and important Charter rights, which is necessary for the functioning of self-governing bodies that have institutional expertise.

Although decided under a s. 1 analysis and not a Doré/Loyola framework as sought by the college, this decision is largely consistent with the trend of courts in applying their deferene to specialized tribunals, especially those regulating professions. This approach will be required on an ongoing basis in an era of judicial scarcity, especially if we want these institutions to resolve their issues internally wherever possible, and to do so in light of Charter values and principles.

Effectively this means that our public institutions will themselves be increasingly aligned with the constitution and the rule of law, and optimally will function without judicial oversight or interference. This is a desirable goal in a free and democratic society and one that wants to be characterized by the rule of law, without the direct power of the law in imposing these practices.

Within those institutions people with religious beliefs should be welcome, included, and fully participate in society, while keeping in mind the social fabric and mutual responsibilities which bind us all together.

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