Commentators on private member’s Bill 207, Conscience Rights (Health Care Providers) Protection Act, introduced in the Alberta Legislative Assembly on November 7, 2019, have disagreed about whether it is different from the current system in Alberta.
Here I consider the extent to which it would be different from the current requirements of the College of Physicians and Surgeons of Alberta (CPSA). I also consider how it would give doctors (and other health professionals) the greatest freedom in Canada to refuse to treat patients on religious and conscientious grounds and fail to put the interests of patients first, as expected by all health professional regulatory regimes in Canada, including the CPSA, which accepts the Canadian Medical Association‘s admonishment to doctors in its Code of Ethics and Professionalism, “Consider first the well-being of the patient; always act to benefit the patient and promote the good of the patient”.
I look first at the requirements of the CPSA, then at requirements in other Canadian jurisdictions and finally at Bill 207 and its implications.
The CPSA, required by the Health Professions Act to “establish, maintain and enforce a code of ethics” (s.3(1)(d)), permits doctors to refuse to treat patients when doing so would be against their (doctors’) freedom of religion and conscience; however, they must refer the patient to another member of the College who will provide the service or refer them to a “resource that will provide accurate information about all available medical options” (see Standards of Practice, Conscientious Objection).
A quick look at some other Canadian jurisdictions suggests this places Alberta somewhere in the middle of requirements affecting doctors who deny treatment on religous or conscientious grounds. New Brunswick explicitly models Alberta’s approach (under Moral Factors and Medical Care).
The Manitoba College of Physicians and Surgeons in its Standards of Practice of Medicine also adopts the CMA Code of Ethics. It downplays the referral option somewhat, allowing physicians to refuse to make a referral or refuse to provide information when they do not want to provide medically assisted aid in dying or other service on the basis of a “conscious-based objection”, but they must provide “timely access to a resource that will provide accurate information” about the treatment.
Quebec’s requirements are less discretionary than are those of Alberta, New Brunswick and perhaps Manitoba. The Quebec College of Physicians provides in its Code of Ethics (which is legislated), “A physician must, where his personal convictions prevent him from prescribing or providing professional services that may be appropriate, acquaint his patient with such convictions; he must also advise him of the possible consequences of not receiving such professional services. The physician must then offer to help the patient find another physician.”
The responsibility is somewhat greater in British Columbia where physicians who object to providing medically assisted aid in dying on the basis of their values and beliefs are required to provide an “effective transfer of care” for their patients by advising patients that other physicians may be available to see them, suggesting the patient visit an alternate physician or service, and if authorized by the patient, transferring the medical records as required (British Columbia’s College of Physicians and Surgeons). B.C.’s Practice Standards addresses conscientious objection to providing other services in much the same way .
Saskatchewan’s Conscientious Refusal Policy explicitly seeks to balance the patient’s right to care with “physicians’ right to act in accordance with their conscience if they conflict”. When a doctor declines to provide a service, they must make a “timely referral” to another physician who will provide the service. However, where this is not possible without a delay, the doctor must provide the service and “[t]his obligation holds even in circumstances where the provision of health services conflicts with physicians’ deeply held and considered moral or religious beliefs.”
Ontario, like Saskatchewan, explicitly seeks to balance doctors and patients’ interests. The policies enacted by the College of Physicians and Surgeons were upheld by the Ontario Court of Appeal in Christian Medical and Dental Society of Canada v. College of Physicians and Surgeons of Ontario (see my Slaw post on the latter here).
The Ontario College enacted two policies, “Professional Obligations and Human Rights” and “Medical Assistance in Dying“, both of which required a doctor objecting to providing services to a patient on religious or conscientious grounds to make “an effective referral” to another health-care provider, that is, one that is “made in good faith, to a non-objecting, available, and accessible physician, other health-care professional, or agency”.
Compared to the requirements in all of those jurisdictions, Bill 207 provides the greatest protection to the physician’s (or other health professional’s) interests and the least protection to the patient’s interests. What is it about Bill 207 that supports reaching this conclusion?
Trying to reconcile doctors’ interests in acting according to their religious and conscientious beliefs and patients’ interests in obtaining timely, accessible care is not necessarily an easy matter. It is this ambiguity inherent when two complicated set of expectations meet, that Bill 207 is intended to avoid in its first stated purpose: “to create certainty regarding the exercise of rights under section 2(a) [freedom of conscience and religion] of the [Canadian] Charter [of Rights and Freedoms] by health care providers and religious health care organizations”.
A second purpose is “to ensure regulatory bodies respect the rights of health care providers under section 2(a) of the Charter, specifically in respect of a complaint made against a health care provider that is based on the health care provider’s exercise of those rights” and this is accomplished by removing the rights of patients under the complaint process.
While all the processes under medical regulatory bodies tend to use broad language (for example, “moral beliefs”, “conscientious beliefs”), as well as “religious beliefs”, the meaning is left to be decided if necessary, presumably by a complaints adjudicator if required. Bill 207, however, explicitly defines “conscientious beliefs” to include “religious beliefs, moral and ethical values and cultural traditions”. Because Bill 207 would prohibit complaints based on conscientious grounds (see below), it is, presumably, entirely within the doctor’s discretion to define their beliefs as falling within the meaning of “conscientious beliefs”.
There are few views that would not be encompassed by Bill 207’s definition of “conscientious beliefs” and thus few services or treatments that a doctor would not be required to provide. In Christian Medical and Dental Society of Canada, the Ontario Court of Appeal stated that some or all of the applicants had objected to providing “abortion, contraception (including emergency contraception, tubal ligation, and vasectomies), infertility treatment for heterosexual and homosexual patients, prescription of erectile dysfunction medication, [and] gender re-assignment surgery”, but it is not unlikely that this list would expand.
In contrast to some Canadian jurisdictions, Bill 207 would not require a “health care provider” objecting to treating a patient on the basis of their “conscientious beliefs” to refer the patient to another medical professional, but the CPSA does not seem to require referrals, either, but rather seems to provide two options: referral to another member of the CPSA or to a “resource that will provide accurate information about all available medical options”.
The Bill does state, “nothing in this Act derogates from a health care provider’s or religious health care organization’s obligations to their patients, which may include informing individuals of options in respect of receiving a health care service” (ss.2(2)). This is ambiguous, given that it does not include reference to the service that the doctor is refusing and it certainly does not provide an explicit direction to ensure the patient has all the information required from either the doctor or another “resource”.
Perhaps most Bill 207’s most significant impact would be in removing any decisions by doctors to refuse treatment on conscientious grounds from scrutiny. The Alberta Health Professions Act prohibits unprofessional conduct (including contravening a code of conduct or standards of practice of a health care profession) and engaging in “conduct that harms the integrity of the regulated profession” and directs regulatory bodies, including the CPSA, to establish and enforce a code of ethics. Bill 207 prohibits a regulatory body from imposing a requirement that may “result in the health care provider being compelled, directly or indirectly,” to provide a service against their beliefs or “to make statements…that would infringe” their beliefs (raising the question about whether even informng a patient about options could constitute such a statement). And it specifically states that a health care professional’s refusal to treat a patient because of their (the professional’s) conscientious beliefs “is not to be considered as unprofessional conduct” (section 6).
And the patient who wonders whether the doctor’s refusal to treat her on conscientious grounds is legitimate? or is an excuse? They would be out of luck, without recourse. Bill 207 would require the regulatory body responsible for inquiring into complaints to dismiss a complaint about a refusal on conscientious grounds “immediately”; that is, it would not even be allowed to determine if the complaint estabished a prima facie case, follow the various ways of resolving the complaint or otherwise address the complaint in ways listed under section 55(1) of the Health Professions Act. (Quaere whether a complaint based on abuse of a right to refuse would constitute a complaint based on conscientious refusal; or further, once a patient indicated what the doctor’s reason for refusal was, would that make it immune from oversight?)
Under section 56 of the Health Professions Act, if the regulatory body becomes aware of information that might ground a complaint, it can treat it as a complaint and proceed under section 55. However, if the information relates to information about a health care provider’s decision to not provide a service because of their conscientious beliefs, the regulatory body would be precluded from treating it as a complaint or basis of a complaint (Bill 207, section 5(2)). Would Bill 207 require the CPSA to automatically refuse a complaint based on a failure of an objecting doctor to provide options about a health care service? It would seem so and if so, this means that patients would be cast adrift in the health care system.
Bill 207 also protects health care providers from any liability “in respect of a decision” to not provide a service because of conscientious beliefs, thus (it appears) removing one of the deterrents for ensuring the decision complied with normal standards of practice.
Perhaps this is an opening salvo in extending conscientious objection rights for doctors. Regardless, Bill 207 is not much the same as the current requirements under the CPSA, as some would argue, not only because of its intention and its definition of “conscientious belief”, but also because it removes doctors’ conduct in this regard from oversight by the CPSA. It lies at one end of the continuum of ways to reconcile the interests of doctors in following their own beliefs and those of patients to proper care, by removing patient interests from the equation.