Physicians and the Ontario Human Rights Code:
Ontario Human Rights Commission attempts to suppress freedom of
Interim response to Physicians and the Ontario Human Rights Code
Reproduced with permission
August 18, 2008
College of Physicians and Surgeons of Ontario
RE: Proposed changes to College human rights policy - "Physicians and the
Ontario Human Rights Code"
We are all just learning how to "do" a pluralistic society and it is not
surprising that we are having some growing pains. Parts of the Executive
Committee's recent draft policy entitled "Physicians and the Ontario Human
Rights Code" demonstrate that errors are easily made in the process of
codifying the duties of physicians, tolerance, and ideals of patient
The last time that a serious attempt was made to make the suppression of
medical conscience respectable was the furiously opposed, and in effect
finally officially renounced, 2006 CMAJ guest editorial by a pair of legal
academics who were dismissive of medical qualms about abortion and obtuse
about the reality that referring for a procedure means medical and ethical
implication in the procedure.
Ironically, it is the laudable impulse to serve the diversity of our
patients' needs which has coincided with a mounting intolerance of diversity
in our own medical colleagues' sincerely held principles. We recognize and
affirm the marginalized patient whose life has taken a turn away from the
mainstream, but the draft policy would marginalize the physician whose
life-affirming ethics endure while the mainstream turns away.
A consumerist approach to the acquisition of services, long gathering
strength inside our medical system, was expressed a century ago by the
commercial philosophy that "the customer is always right." Our current
challenge is to see the occasions of medical arrogance and paternalism of
the past out the door without adopting the supine posture implied by the
College's draft policy and backgrounder. As these documents would seem to
see it, a physician can properly back away from an ethically troubling
request only by pleading incompetence. The common scenario where the
exercise of ethical competence and medical judgment frustrates a patient's
immediate wishes is inadequately supported and explored.
Moral beliefs are indeed "central to the lives of physicians and their
patients," as the draft document states, including to the lives of those who
think of themselves as non-religious. In particular, we should have no
tolerance for amoral physicians. Unfortunately, the document glides into a
fundamental exercise in question-begging by assuming the true medical
necessity of the contentious services for which it strives to guarantee
practical, if not moral, acquiescence.
This controversy is not about the delivery of life-saving care or the
correction of physical pathology. Real-life examples of the conflicts the
College wishes to address almost always involve a patient preference for a
medical service which will subjectively enhance their quality of life or
remove an impediment to a desired lifestyle, with no credible claim of
medical emergency. Such encounters may sometimes call for a tactful and
respectful disengagement of the patient from the physician, but hardly the
pre-emptive renunciation of freedom of conscience implied by the College
Thus the draft policy's anticipation that compliant physicians will be
ready to "set aside their personal beliefs" and its warning that decisions
"based on moral or religious belief" may "constitute professional
misconduct" seems particularly intemperate, a retrograde and illiberal lurch
rather than a measured and sensitive evolution of standards.
The CPSO has put itself out on a limb with this undoubtedly well-meaning
exercise in policy revision. The spirit of the draft document would, for
instance, impugn the President of l'Association medicale de Quebec, who
recently defended obstetricians who decline to alter their call schedules to
accommodate patients who do not want to be cared for by a male.
The College may also want to reconsider the implications of proposing
policy revisions in the explicit context of the curious prediction that
human rights complaints in Ontario will soon skyrocket to 3000 per year.
Does the College believe that the Human Rights Commission system will bring
better standards of medical practice than the College has previously
promoted? Has the College complaints process hitherto been deficient in
addressing public concerns about medical issues?
The College documents present an unseemly image of the College preparing
to shine its shoes before inspection by a higher authority. And yet human
rights commissions, as you are undoubtedly aware, are increasingly
scrutinized for various abuses which they themselves engender. Alan Borovoy,
the pre-eminent Canadian civil liberties champion, recently lamented that "
during the years when my colleagues and I were labouring to create such
commissions, we never imagined that they might ultimately be used against
freedom of speech." Others have criticized the
asymmetrically onerous burdens, of proof and of legal expense, which the
commissions cause to fall on defendants.
In short, it is still unclear how human rights commissions and codes are
going to find a good fit with our traditions of fairness, equality, and
freedom. It is not a foregone conclusion that they are an improvement on the
common law. The best possible role that the CPSO could play in these
turbulent seas would be as a beacon of moderation. It should not lose
confidence in the capacity of physicians to exercise their fundamental
freedoms in a manner befitting responsible professionals in a free and
democratic society, nor in the principle that a free society is best served
by a humble but independent medical profession. The College may choose to
trim its sails in the stiffening breeze of litigiousness fostered by human
rights commissions, but it need not throw its cargo overboard.
Authoritarian and coercive edicts like these draft policy documents
suggest a fear of freedom that is unbecoming of a regulatory institution in
a democratic country. They also raise serious questions about the CPSO's
understanding of, and competence to deal with, issues of freedom, pluralism,
accommodation and tolerance.
The future will be filled with radical technological changes and social
innovations. It would be naïve to expect them all to be benign. It is
vitally important to our society that members of our profession, like their
fellow citizens, remain free to adhere to their conscientious convictions in
choosing to participate in, ignore, or oppose any part of the torrent of
We strongly advise the Executive Council of the CPSO to study this policy
in much greater depth before proposing changes to it. A further submission
Will Johnston, MD, President
Canadian Physicians for Life
PO Box 1289
Richmond ON K0A 2Z0
 CMAJ â€¢ July 4, 2006 â€¢ 175(1) page 9
 The Calgary Herald, "Hearing
complaint alters rights body's mandate," A. Alan Borovoy, March 16,