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Court of Appeal confirms physicians must provide patients with an “effective referral”

May 15, 2019

Physicians who do not want to perform a medical procedure must give patients an “effective referral” to another health care provider

The Ontario Court of Appeal has confirmed that physicians have an obligation to make an “effective referral” to another health care provider if they do not wish to provide a service based on their religious beliefs.

Background

The case began when several physicians and physicians’ groups challenged the constitutionality of policies of the College of Physicians and Surgeons of Ontario that require doctors to make an “effective referral” when they refuse, on religious grounds, to perform procedures like abortion, tubal ligation, gender reassignment surgery, and medical assistance in dying. The applicants claimed that having to comply with the policies violated their freedom of religion under s. 2(a) of theCanadian Charter of Rights and Freedoms.

The Divisional Court disagreed, holding that, while the CPSO policies violated s. 2(a), they were justified under s. 1 of the Charter. The applicants appealed to the Court of Appeal.

The Court of Appeal’s decision

Dying with Dignity Canada (DWDC) intervened in the appeal to advocate for the rights of patients and their families who are facing end of life choices. DWDC argued that doctors cannot  allow their personal or religious beliefs to stand in the way of their patients’ access to care, including access to medical assistance in dying which is a legal, publicly funded, health care service.

The Court of Appeal agreed. Like the Divisional Court, it held that, while the policies violated the religious freedom of doctors, the infringement was reasonable and demonstrably justified under s. 1 of the Charter.

The Court found that requiring objecting physicians to provide an effective referral for medical assistance in dying, abortion or other reproductive health services promotes equitable patient access to those health care service. The Court found that there was “compelling evidence” that patients will suffer harm, including delayed or denied access to health care services and stigmatization, in the absence of an effective referral.

The Court rejected the notion that handing a vulnerable patient a brochure, phone number or website address and sending them out to navigate the health care system on their own would be a sufficient substitute to an effective referral. A “self-referral” model “will impair equitable access to health care rather than promote it”, the Court held.

In the final balancing, the Court stated that it found “much assistance” in DWDC’s submission that patients should not bear the burden of managing the consequences of physicians’ religious objections. The policies themselves provided options for physicians who object to certain procedures, and many physicians find those options acceptable. A physician who does not find the options acceptable, has the option of switching to a practice in which they will not be faced with having to deal with patients who might request the health care services the physician objects to. While this may impose a burden on some physicians, it did not outweigh the harm that would be caused to vulnerable patients by the alternatives suggested by the appellants.

The Court concluded:

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 … 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 … [The Policies] 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.

DWDC was represented by Kelly Doctor and Mary-Elizabeth Dill.

Lawyers

Kelly Doctor, Mary-Elizabeth Dill

Practice Areas

Appeals & Judicial Review, Constitutional Law