Submission to the College of Physicians and Surgeons of Ontario

Re: Professional Obligations and Human Rights

Justice Centre for Constitutional Freedoms

Summary

The draft Policy “Professional Obligations and Human Rights” (the “Draft Policy”) proposed to the College of Physicians and Surgeons of Ontario (the “College”) contains a number of critical legal errors, which render the affected portions of the Draft Policy constitutionally indefensible.

The Draft Policy incorrectly assumes that patients enjoy a legal right to access even controversial medical services from any and every physician. In fact, patients have virtually no legal rights to medical care. The Courts have expressly stated that there is no Charter right to health care, or to any particular health services. Conversely, the Charter expressly protects physicians’ religious and conscience rights. The civil government, and government bodies such as the College, cannot violate physicians’ Charter rights to freedom of conscience and religion unless such violation is demonstrably justified. In light of the context of health services in Ontario, the purposes of eliminating discrimination and promoting access to health care, while praiseworthy, do not justify the Draft Policy’s violation of physicians’ Charter rights.

The Draft Policy purports to address discrimination in the provision of health services, and repeatedly references Ontario’s Human Rights Code. However, a physician who is unable to provide or refer a patient for a particular health service on account of the physician’s sincere religious or conscientious belief is not engaging in discrimination; this inability or refusal does not violate the Code. The inability to provide or refer for that health service is not based on or related to the patient’s personal characteristics (e.g. age, gender, religion, disability, etc.). Rather, this inability to provide a particular service or referral stems from the physician’s religious or conscientious belief that the service in question causes harm.

Promoting access to health services is a commendable objective. No one could deny that in many areas health services are subject to undesirable even unacceptable delays. And despite the Supreme Court’s ruling in Chaoulli c. Quebec, 1 the effective prohibition of private health insurance impedes many Canadians in accessing timely health services. However, there is no basis on which to conclude that physicians, by exercising their freedom of conscience, actually impede access to health care. Some patients may occasionally experience minor inconvenience when informed by a physician that reasons of conscience prevent the physician from providing or referring with respect to a desired service. However, with an abundance of physicians and facilities available to perform such controversial services,2 patients will still receive these services in timely manner. The Draft Policy neither provides nor points to any evidence showing that controversial services such as abortion suffer greater delays in access to care than noncontroversial services, such as knee surgery.

The clinical aspect of the practice of medicine cannot be separated from the moral, religious and ethical beliefs of physicians that form an essential part of providing health services to other human beings. The Draft Policy’s attempt to separate the “clinical” from the “moral” in the practice of medicine is a dangerous and destructive step that contradicts the ethical foundations of medicine that have existed for millennia.

Government bodies such as the College have an obligation under the Charter and Ontario’s Human Rights Code to accommodate the religious and conscientious beliefs of physicians to the point of undue hardship. The Draft Policy ignores this obligation entirely, while incorrectly asserting a need to “balance” Charter rights with the wishes and desires of patients. These wishes and desires are not legal rights.

The Draft Policy’s requirement that physicians provide referrals for, and in some cases perform, services which they sincerely believe are morally wrong is grossly deficient from a Charter perspective, and if adopted would be found unconstitutional by a court. A referral is not a morally neutral action, as the College itself recognizes. Further, the drastic measure of forcing physicians to violate their consciences by performing services they believe are wrong is vague and subjective, making it impossible to qualify as a reasonable limit on physicians’ conscience rights. The College cannot point to evidence of a pressing need that would justify these requirements.

The College should seek to support physicians’ adherence to their own individual consciences.  Alternative measures which reasonably accommodate physicians with religious or conscientious objections should be developed and implemented. [Full text]

 

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