Divisional Court: Doctors must provide patients with an effective referral
If your doctor does not want to perform a procedure, are they obligated to refer you to to a physician who will? “Yes” says the Divisional Court, upholding a CPSO policy.
In a precedent-setting decision in a case that pit patients’ rights against doctor’s religious beliefs, the Divisional Court upheld the College of Physician and Surgeon of Ontario’s policy on effective referral. This policy requires doctors who object to providing medical care on the basis of religious or conscientious grounds (such as medical assistance in dying – “MAID” – but also abortion, birth control and gender confirmation surgery) to connect the patient with a person or agency who will either provide care or connect the patient with a willing provider of the service requested.
The Christian Medical & Dental Society of Canada and some individual physicians challenged the CPSO policy, arguing that it violated their freedom of conscience and their right to equality under the Canadian Charter of Rights and Freedoms.
Dying with Dignity Canada (DWDC) intervened in the case to support the CPSO policy. 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 Divisional Court’s decision
The Divisional Court held that while the policy violated the religious freedom of doctors, the infringement was reasonable under s. 1 of the Charter.
The Court held that without effective referral, there is a real risk that patients will be deprived of equitable access to health care. Patients may lack resources, financial or otherwise, or may be too sick to access the services they require without the benefit of a physician referral. In many cases, a patient requires his or her physician to act as the patient’s “navigator” through the health care system.
The Court observed that, in a publicly funded healthcare system based on patient-centred care, physicians must “place the interests of their patients ahead of their own personal interests in the event of a conflict.” This, as the Court noted, is “fundamental for the trust that must exist in the doctor-patient relationship.” Doctors must respect patient autonomy, and have a duty not to abandon a patient.
While the Court stopped short of conferring a freestanding constitutional right to healthcare, it stated that s. 7 of the Charter (which provides that everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice) confers a right to equitable access to medical services legally available in Ontario.
The Court rejected the argument that regulatory bodies in other provinces have developed “less restrictive” policies. The Court confirmed that the Ontario regulator is not bound by policy-making in other jurisdictions. It concluded that the effective referral requirement represents a reasonable limit on religious freedoms in a free and democratic society.
DWDC was represented by Kelly Doctor.