Court challenge raises issue of “reasonable apprehension of bias”

Sean Murphy*

Documents filed in an important Canadian court case bring into question the value and purpose of “public consultations” held by medical regulators, at least in the province of Ontario.

In March, 2015, the College of Physicians and Surgeons of Ontario (CPSO) approved a highly controversial policy, Professional Obligations and Human Rights.  The policy requires physicians  to facilitate services or procedures to which they object for reasons of conscience by making an “effective referral” to a colleague or agency willing to provide the service.  A constitutional challenge to the policy was dismissed by  the Ontario Divisonal Court in 2018.[1] An appeal of that ruling will be heard by the Ontario Court of Appeal on January 21-22, 2019.

Among the thousands of pages filed with the trial court are a number dealing with the public consultation conducted by the CPSO from 10 December, 2014 to 20 February, 2015.  In response to its invitation to stakeholders and the public, the CPSO received 9,262 submissions about the proposal, the great majority of which opposed it.[2]

College officials  finalized the wording of the policy on 19 January, 2015,[3]   a month before the consultation ended; only about 565 submissions would have been received by then.[4]  727 submissions had been received  by the time the policy was sent to the Executive Committee on 28 January,[5]  which promptly endorsed it and forwarded it to the College Council for final approval.[6]

According to the briefing note supplied to the Council, by 11 February, 2015 the College had received 3,105 submissions.[7]  Thus, the final version of the policy was written and approved by the College Executive before about  90% of the submissions in the second consultation had been received.

Submissions received by CPSO from 10 Dec 2014 to 20 Feb 2015

During the first 40 days ending 11 February, the College received an average of about 18 submissions per day.  Assuming someone spent eight full hours every working day reading the submissions, about 22 minutes could have been devoted to each.  Three staff members dedicated to the task could have inceased this average to about an hour, so the first 700 submissions could conceivably have received appropriate attention.

Time available for analysis of submissions

However, this seems unlikely in the case of more than 8,000 submissions received later.

By 11 February about 183 submissions were arriving at the College every day, increasing to about 684 daily in the last ten days of the consultation – one every two minutes.   A College staffer working eight hours daily without a break could have spent no more than about two minutes on each submission, and only about one minute on each of those received in the last ten days  – over 65% of the total.

A minute or two was likely sufficient if College officials deemed consultation results irrelevant because they had already decided the outcome.  This conclusion is consistent with the finalization and approval of the policy  by the six member College Executive (which included the Chair of the  working group that wrote it [8]).  To do this weeks before the consultation closed was contrary to normal practice.  CPSO policy manager Andréa Foti stated that working groups submit revised drafts to the Executive Committee  after public consultations close[9] – not before.

One would expect government agencies that invite submissions on important legal and public policy issues would allow sufficient time to review and analyse all of the feedback received before making decisions. The CPSO’s failure to do so does not reflect institutional respect for thousands of individuals and groups who responded in good faith to its invitation to comment on the draft policy.  Rather, such conduct invites a reasonable apprehension of bias that is unacceptable in the administration of public institutions.

1. The Christian Medical and Dental Society of Canada v. College of Physicians and Surgeons of Ontario, 2018 ONSC 579 (Can LII)  [CMDS v CPSO].

2. CMDS v CPSO, supra note 1  (Respondent’s Application Record, Volume 1, Tab 1, Affidavit of Andréa Foti [Foti] at para 121.

3.    Foti, supra note 2 at para 133.

4. Estimated daily average based on the total received by 28 January (727).

5. CMDS v CPSO, supra note 1  (Respondent’s Application Record, Volume 4, Tab WW, Exhibit “WW” attached to the Affidavit of Andréa Foti: Executive Committee Briefing Note (February, 2015) (CPSO Exhibit WW) at 1724.

6. CMDS v CPSO, supra note 1  (Respondent’s Application Record, Volume 4, Tab XX, Exhibit “XX” attached to the Affidavit of Andréa Foti: Proceedings of the Executive Committee – Minutes – 3 February, 2015) (CPSO Exhibit XX) at 1746-1748.

7. “Council Briefing Note: Professional Obligations and Human Rights – Consultation Report & Revised Draft Policy (For Decision)” [CPSO Briefing Note 2015].  In College of Physicians and Surgeons of Ontario, “Annual Meeting of Council, March 6, 2015” at 61.

8. Dr. Marc Gabel. See CPSO Exhibit WW, supra note 4 at 1722 (note 1), and CPSO Exhibit XX, supra note 5 at 1746.

9. Foti, supra note 2 at para 36.

Thousands step up in support of doctors’ conscience fight

The Catholic Register

Michael Swan

An Ontario campaign to pressure politicians over the protection of health care conscience rights is “democracy in action,” said an organizer.

The Coalition of HealthCARE has so far collected 19,000 names and e-mail addresses in its “Call for Conscience Campaign.” That does not include results from the Archdiocese of Toronto.

The non-partisan campaign was launched to oppose and raise awareness about regulations that force doctors to refer for assisted suicide and euthanasia against their moral convictions.

By the end of March, people who have signed up during the campaign should receive instructions about how to e-mail all the candidates in their ridings in the run-up to Ontario’s June 7 provincial election. . . [Full text]

Canadian court rules that state can compel participation in homicide and suicide

News Release

For immediate release

Protection of Conscience Project

Three judges of the Ontario Superior Court of Justice Divisional Court have unanimously ruled that, notwithstanding religious convictions to the contrary, Ontario  physicians can be forced to help patients access any and all services and procedures, including euthanasia and assisted suicide.

“In the end,” observed Project Administrator Sean Murphy,  “the ruling effectively gives the state the power to compel citizens to be parties to homicide and suicide, even if they believe it is wrong to kill people or help them kill themselves.”

The Protection of Conscience Project jointly intervened in the case with the Catholic Civil Rights League and Faith and Freedom Alliance on the issue of freedom of conscience.  The court acknowledged the submission, but explicitly limited its ruling to the exercise of freedom of religion.  It did not address freedom of conscience.

The court approved the reasoning of the College of Physicians and Surgeons of Ontario, the state medical regulator.  The College argued that “physicians must be prepared to take positive steps to facilitate patient access” to euthanasia and assisted suicide, and that there is “no qualitative difference” between euthanasia and “other health services.”

With respect to options of objecting physicians, the court observed that they are free to change their field of practice in order to avoid moral conflicts.  The judges added that those who fail to do so are to blame for any psychological distress they might experience if compelled to violate their convictions.  It appears that they were unconcerned that this might further reduce the number of family and palliative care physicians, noting that there was “no evidence” that coercive policies would adversely affect physicians “in any meaningful numbers.”

Dr. Shimon Glick, advisor to the Project and Professor Emeritus of the Faculty of Health Sciences at Ben Gurion University of the Negev in Israel, described the ruling as “sad.”  Commenting on the decision, Project Advisor Professor Roger Trigg of Oxford said, “once the perceived interests of the State override the moral conscience of individuals  – and indeed of professionals- particularly in matters of life and death, then we are treading a slippery slope to totalitarianism.”

“Even the first steps- that may not seem important to some,” he warned, “are taking us in that direction.”

Professor Trigg’s warning was echoed by Professor Abdulaziz Sachedina, a leading Islamic scholar and philosopher who also serves on the Project Advisory Board.  Professor Sachedina asked, “Are we  going to submit to “totalitarian ethics” reflected in such court decisions, making suicide a tempting option without any regard to conscientious objection?”

The decision concluded legal proceedings launched jointly by five Ontario physicians, the Christian Medical and Dental Society of Canada, Canadian Physicians for Life, and the Canadian Federation of Catholic Physicians’ Societies.  They are considering the possibility of appeal.

Contact:
Sean Murphy, Administrator
Protection of Conscience Project
E-mail: protection@consciencelaws.org


The Protection of Conscience Project is a non-profit, non-denominational initiative that advocates for freedom of conscience in health care. The Project does not take a position on the morality or acceptability of morally contested procedures. Since 1999, the Project has been supporting health care workers who want to provide the best care  for their patients without violating their own personal and professional integrity. 

 

 

Doctors who morally object to treatments must refer patients elsewhere

CTV News

Paolo Lorrigio, The Canadian Press

Ontario doctors who have a moral or religious objection to treatments such as assisted dying, contraception or abortions must refer patients to another doctor who can provide the service, after a court found it is necessary to guarantee that vulnerable patients can access the care they need.

A group of five doctors and three professional organizations had launched a legal challenge against a policy issued by the province’s medical regulator, arguing it infringed on their right to freedom of religion and conscience under the Charter of Rights and Freedoms.

The group — which includes the Christian Medical and Dental Society of Canada, the Canadian Federation of Catholic Physicians’ Societies and Canadian Physicians for Life — said the requirement for a referral amounted to being forced to take part in the treatment. . . [Full Text]

Ontario court ruling “a significant loss for the entire health care system”

News Release

FOR IMMEDIATE RELEASE

CMDS, CFCPS, CPFL

Toronto, Ontario – From June 13-15, 2017, the legal application of three physicians’ organizations – the Christian Medical and Dental Society of Canada (“CMDS Canada”), the Canadian Federation of Catholic Physicians’ Societies (“CFCPS”) and the Canadian Physicians for Life – and five physicians – was heard in the Ontario Divisional Court. The respondent in the case is the College of Physicians and Surgeons of Ontario (CPSO).

An application was filed asking the Court to declare that portions of the CPSO’s Professional Obligations and Human Rights policy violate the Canadian Charter of Rights and Freedoms. An application for judicial review was simultaneously filed asking the Court to declare the same of the CPSO’s Medical Assistance in Dying policy.

Today, January 31, 2018, the Court declared that these CPSO policies violate freedom of religion by requiring physicians and surgeons to make referrals when their consciences will not allow them to perform a procedure or treatment. The Court stated, (at para. 87): “I am of the opinion that the Policies infringe the rights of religious freedom of the Individual Applicants as guaranteed under the Charter …”

However, the Court found that the violations were justified because of the importance of providing access to these services.

“The Court held that other jurisdictions had chosen less restrictive means of ensuring access. The Court also held that there was no evidence that conscientious objection ever results in a failure of access. The Court also held that the implications for physicians were serious and more than trivial or insubstantial. We are left wondering why an effective referral is necessary,” Larry Worthen, Executive Director of the Christian Medical and Dental Society of Canada said.

“Canada represents itself on the world stage as being a cultural mosaic. This is evidence that we are losing sight of that reality. To say we respect all cultures and beliefs, we need to respect their strongly held moral convictions. We heard from our members and other doctors with conscientious objections over and over again that they felt referral made them complicit and that they wouldn’t be able to live with themselves or stay in the profession if effective referral is still required. We are currently reviewing our options regarding an appeal.”

“This is a disappointing decision and puts our doctors – doctors who entered the field of medicine to provide quality, compassionate, and patient-centered care – in an impossible position,” states Dr. Ryan Wilson, President of Canadian Physicians for Life. “They don’t believe ending a patient’s life is medicine, and they don’t believe they can offer hope and healing in one room while assisting in killing a patient in another. Ultimately it is patient care that suffers, as our doctors will retire early, relocate, or change fields. For many, their religious and conscience rights are being violated and they won’t be able to practice medicine in Ontario. This is a significant loss for the entire health care system in the province and will have a direct impact on patient care.”

The CFCPS is very disappointed with this decision from this Ontario Court that denies conscience rights to many Ontario physicians. “The Canadian Charter of Rights and Freedoms guarantees freedom of religion for all Canadians,” stated Dr. Jim Lane, President of the CFCPS. “This decision forces many Ontario doctors to be unable to care for their patients. This decision also raises alarm bells to all health care workers and Ontario residents that their freedom of religion and conscience could also be jeopardized.”

CMDS Canada is a national association of Christian doctors and dentists who strive to integrate their Christian faith with medical or dental practice. CMDS Canada represents approximately 1600 medical doctors, dentists and medical and dental students, over 500 of which are located in Ontario.

The CFCPS is a national association of Catholic physicians’ guilds, associations and societies from eleven cities across Canada, four of which are in Ontario.

The physicians represented by CMDS Canada and CFCPS hold sincere religious and moral beliefs that form the basis of their moral or religious objection to physician-assisted death.

The Canadian Physicians for Life (“CPL”) is a national association of pro-life physicians, retired physicians, medical residents and students. CPL’s members are dedicated to building a culture of care, compassion and life. CPL was founded in 1975 and is a non-religious charitable organization. CPL’s members believe that every human life, regardless of age or infirmity, is valuable and worth protecting.

For more information and media requests contact:

Larry Worthen, Executive Director
Christian Medical and Dental Society of Canada
902-880-2495 (cell)
office@cmdscanada.org

Ontario doctors fight law forcing them to help kill their patients

The Interim

Five doctors and three doctors’ groups were in an Ontario court June 13-15 arguing a policy from the College of Physicians and Surgeons of Ontario (CPSO) violates their Charter rights to freedom of conscience and religion. The CPSO forces doctors to refer patients for euthanasia and abortion, even when it violates their conscience or religion. Kathleen Wynne’s Liberal government intervened on behalf of the college.

The 2015 CPSO policy requires that doctors who object on religious or conscience grounds to providing certain procedures such as abortion and euthanasia must give patients seeking these practices an effective referral. This means directly handing over a patient to another colleague who will follow through with an abortion or euthanasia request. The doctors argue this implicates them in the immoral practices to which they object. . . . [Full text]

 

Ontario doctors challenge policy forcing referrals for medically assisted dying

College’s rules infringe on doctors’ right to object on conscientious, religious grounds, groups argue

CBC News

Amanda Pfeffer

Rules forcing Ontario doctors to offer medically assisted dying — or at least a timely referral — infringe on their constitutional right to object on conscientious or religious grounds, several physicians’ groups told a divisional court tribunal this week.

Their lawyer is asking the tribunal for a judicial review of the College of Physicians and Surgeons of Ontario’s (CPSO) recent policy on assisted dying, which requires doctors to perform an “effective referral.”

But several groups including the Christian Medical and Dental Society of Canada, the Canadian Federation of Catholic Physicians’ Societies and Canadian Physicians for Life, along with five individuals, are arguing the policy is the moral equivalent of offering the procedure themselves. . . [Full text]

 

Ontario conscience rights case goes to court

Catholic Register

Michael Swan

TORONTO – In historic Osgoode Hall, 17 lawyers along with eight banker boxes of documents were arrayed three benches deep in front of Justice Herman J. Wilton-Siegel, Justice Richard A. Lococo and Justice Wendy W. Matheson before lawyer Albertos Polizogopoulos made his opening arguments on behalf of the Christian Medical and Dental Society of Canada and in favour of the Charter right of doctors to practice medicine according to their conscience.

The CMDS, supported by the Canadian Federation of Catholic Physicians Societies, Canadian Physicians for Life and the Catholic Civil Rights League, is in Ontario Superior Court of Justice June 13-15 challenging the College of Physicians and Surgeons of Ontario over its “effective referral” policy. The policy forces doctors who object to abortion, birth control and assisted suicide to write an “effective referral” for the services to a willing and available doctor. Intervening on the side of the provincial regulatory body governing the practice of medicine is the Attorney General of Ontario.

 

Doctors challenge Ontario policy requiring referral for services that clash with morals

2-year-old policy was established under guidance of a working group and subjected to external consultation

CBC

The Canadian Press

The debate over Ontario doctors’ right to refuse to provide medical services that clash with their moral or religious beliefs is headed to court.

A group of five doctors and three professional organizations is challenging a policy issued by the College of Physicians and Surgeons of Ontario that requires doctors who have a moral objection to the treatment sought by a patient to refer them to another medical professional who can provide the service. . . [Full text]

Doctors challenge Ontario policy on assisted-death referrals

Physicians go to court over requirement to send patients to other doctors if they don’t want to provide medical assistance in dying.

Toronto Star

Alex Mckeen

A group of doctors has mounted a legal challenge to an Ontario policy that requires them to refer patients to other doctors for medical assistance in dying.

The Christian Medical and Dental Society of Canada, the Canadian Federation of Catholic Physicians’ Societies and Canadian Physicians for Life, along with five individual physicians, are arguing at Ontario Superior Court this week that the Charter of Rights and Freedoms protects them from being required to refer patients elsewhere if they don’t want to help those patients end their lives.

They are fighting a policy of the College of Physicians and Surgeons of Ontario that says doctors must provide an “effective referral” if they refuse to help a patient end their life due to “reasons of conscience or religion.” . . . [Full text]