Court Affirms Physician Requirements to Provide Effective Referrals for MAID

May 9, 2018 | Lisa Spiegel, Jesstina McFadden, Kathryn M. Frelick

On January 31, 2018, the Ontario Divisional Court affirmed that “conscientiously objecting” physicians can be required to provide emergency care and referrals relating to medical services that go against their religious or personal beliefs – such as medical assistance in dying (MAID), abortions, contraception and transgender treatments.

In The Christian Medical and Dental Society of Canada v. College of Physicians and Surgeons of Ontario (“CMDSC v. CPSO”), the Divisional Court addresses a legal challenge brought by the CMDSC and certain physicians (the “Applicants”) related to the “effective referral” requirements in the CPSO’s policies on Professional Obligations and Human Rights (“Human Rights Policy”) and Medical Assistance in Dying (collectively, the “Policies”). The Applicants also challenged the “emergency provision” in the Human Rights Policy.

What is an Effective Referral?

The effective referral requirements in both Policies provide that where physicians are unwilling to provide certain services or care for reasons of conscience or religion, an “effective referral” to another health care provider must be provided to allow the patient to access the care or services.

The CPSO describes “effective referral” as a referral made in good faith, to a non-objecting, available and accessible physician, other health care professional or agency. In its Fact Sheet: Ensuring Access to Care: Effective Referral, the CPSO further explains that all effective referrals involve the following:

  • the physician taking positive steps to connect a patient with another physician, health care provider or agency. The physician can make the referral him/herself or can assign the task to someone else but remains professionally responsible for ensuring compliance with CPSO expectations.
  • the referral being made to a non-objecting physician/health care provider/agency that is accessible and available to the patient; and
  • the referral being made in a timely manner, so that the patient will not experience an adverse clinical outcome due to a delayed referral.

What is the “Emergency Provision”?

In its Human Rights Policy, the CPSO recognizes that physicians may limit the health services that they provide for legitimate reasons, including because the services are contrary to their conscience or religious beliefs. However, physicians are expected to do so in a manner that respects patient dignity and autonomy, upholds their fiduciary duty to the patient and does not impede equitable access to care.

Pursuant to these obligations, the CPSO requires physicians to provide care in an emergency, where it is necessary to prevent imminent harm, even if that care conflicts with their conscience or religious beliefs.

The Divisional Court’s Findings

The decision addresses two separate applications in which the Applicants challenged the constitutional validity of the Policies’ effective referral and emergency provisions.

The Applicants claimed that these requirements encroached on their right to freedom of religion under section 2 of the Canadian Charter of Rights and Freedoms (“Charter”) by essentially requiring that they take part in services that went against their personal beliefs.

The Divisional Court’s analysis of the issues is detailed and complex. In short, the Court agreed that the effective referral and emergency provisions of the Policies do infringe upon the physicians’ rights of religious freedom. However, the Court found that these requirements served the important social and public benefit of ensuring equitable access to health care and, in the case of the emergency provision, the protection of life and public safety. The Court also found that the benefits outweighed the costs or burdens imposed on physicians, taking into consideration the options available to physicians to satisfy the requirements. Therefore, the Court concluded that the infringement was justified and did not contravene the Charter. The applications were dismissed in their entirety.

The Applicants in this case have appealed the Divisional Court’s decision to the Court of Appeal for Ontario.

Implications for Physicians and Health Care Facilities

The balancing of rights between health care professionals and patients in the context of health care services, such as abortion and MAID, is a highly contentious and personal issue that is the subject of much debate in Canada.

In Ontario, individual health care practitioners, including physicians, have a right to refuse to provide services due to religious beliefs or personal conscience. However, physicians who do so are subject to professional obligations to comply with the CPSO’s policies in this regard, including the requirements regarding the provision of necessary emergency care and/or making an effective referral. Failure to do so could result in disciplinary action by the College.

Health care facilities have their own institutional positions on MAID and need to understand the potential legal, organizational, professional, ethical and reputational risks. It is possible that institutional policy will conflict with the physician’s professional obligations. As such, it is important to develop a mechanism to address disputes. Health care facilities need to be aware of the legal and professional obligations of physicians and other health care professionals in relation to the provision or refusal of MAID and other services generally.

Health care facilities should be proactive in communicating their position on MAID to patients and their families, physicians and staff, including any limitations to its provision, to allow individuals to make informed choices and ensure a consistent approach. Given the complexity and evolving nature of these issues, we will be watching any new developments closely.

Miller Thomson’s Health Industry Group has extensive experience assisting facilities and regulated health professionals with respect to regulatory compliance and related legal and risk management issues, including risk assessments, policy development and representing clients in College complaints and legal proceedings.   We invite you to contact us.

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