Protection of Conscience Project
Protection of Conscience Project
www.consciencelaws.org
Service, not Servitude

Service, not Servitude

Canada

College of Physicians and Surgeons of Ontario

Freedom of conscience and religion

Annotated extracts and links

Agreement with Dr. Stephen Thomas Dawson (2002)
Reproduced with permission

As from August 22, 2002, Dr. Stephen Thomas Dawson undertakes to the College of Physicians and Surgeons of Ontario,

  1. To have copies of "Schedule 1" to his undertaking openly available in his waiting room. [See Schedule 1 below.]
  2. To provide to his patients only the explanation in Schedule 1 explaining why he does not, in his practice,

    a) prescribe birth control pills to unmarried patients for the purpose of birth control;

    b) prescribe Viagra to unmarried men;

    c) participate in securing abortions for his patients

    unless a patient should specifically request further information about the religious beliefs on which his position is based.

Schedule 1:

On February 8, 2000, I [Dr. Stephen Thomas Dawson] established a policy in this Medical Centre to stop prescribing birth control pills to unmarried patients for the purpose of birth control. I also established a policy of not prescribing Viagra to unmarried men.

I have never involved myself in abortions. As a Christian physician, the prescription of birth control pills to unmarried women for birth control purposes is contrary to the dictates of my conscience and religion. Similarly, arranging for abortions and the prescription of Viagra to unmarried men is contrary to the dictates of my conscience and religion.

According to the Canadian Medical Association Code of Ethics, one of the responsibilities of a physician is to inform the patient:

when his morality or religious conscience alone prevents him from recommending some form of therapy . . .

In accordance with my Christian beliefs and the Canadian Medical Association's Code of Ethics, I am setting out my policy so that you are informed in advance of my beliefs and practice. If you wish further information about the religious basis for my policy, please feel to ask me about it.

Project Annotations

The agreement was a consequence of a complaint to the College of Physicians and Surgeons of Ontario about a physician who refused to provie birth control prescriptions for unmarried patients.  The complaint and circumstances are described in the following articles:


Professional Obligations and Human Rights
Approved September, 2008 | Reviewed and Updated March, 2015
[Full Text]

...effective referral: taking positive action to ensure the patient is connected1 to a non-objecting, available, and accessible2 physician, other health-care professional, or agency.3 For more information about an effective referral, see the companion Advice to the Profession document.Project Annotation (i)

***

Limiting Health Services for Legitimate Reasons

The duty to refrain from discrimination does not prevent physicians from limiting the health servicesProject Annotation (ii) they provide for legitimate reasons (for instance, because the care is outside their clinical competence or contrary to their conscience or religious beliefs).10

  1. While physicians may limit the health services they provide for legitimate reasons, they must 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 for existing patients, or those seeking to become patients [Emphasis in original].

***

Conscience or Religious Beliefs

The College recognizes that physicians have the right to limit the health services they provide for reasons of conscience or religion.

However, physicians' freedom of conscience and religion must be balanced against the right of existing and potential patients to access care. The Court of Appeal for Ontario has confirmed that where an irreconcilable conflict arises between a physician's interest and a patient's interest, physicians' professional obligations and fiduciary duty require that the interest of the patient prevails.13, Project Annotation (iii)

The College has outlined expectations, set out below, for physicians who have a conscientious or religious objection to the provision of certain health services. These expectations accommodate the rights of objecting physicians to the greatest extent possible,Project Annotation (iv) while ensuring that patients' access to healthcareProject Annotation (ii) is not impeded.

  1. Where they choose to limit the health services they provide for reasons of conscience or religion, physicians must to do so in a manner that respects patient dignity, ensures access to care,Project Annotation (ii) and protects patient safety [Emphasis in original].

Respecting Patient Dignity

  1. Where physicians object to providing certain elements of care for reasons of conscience or religion, they must communicate their objection directly and with sensitivity to existing patients, or those seeking to become patients, and inform them that the objection is due to personal and not clinical reasons [Emphasis in original].Project Annotation (v)
  2. In the course of communicating their objection, physicians must not express personal moral judgments about the beliefs, lifestyle, identity, or characteristics of existing patients, or those seeking to become patients. This includes not refusing or delaying treatment because the physician believes the patient's own actions have contributed to their condition [Emphasis in original].
    1. Furthermore, physicians must not promote14 their own religious beliefs when interacting with patients, or those seeking to become patients, nor attempt to convert them [Emphasis in original].

Ensuring Access to Care

  1. Physicians must provide information about all clinical options that may be available or appropriate to meet patients' clinical needs or concerns [Emphasis in original].
  2. Physicians must not withhold information about the existence of any procedure or treatment because it conflicts with their conscience or religious beliefs [Emphasis in original]
  3. Where physicians are unwilling to provide certain elements of care for reasons of conscience or religion, they must provide the patient with an effective referral [Emphasis in original].
    1. Physicians must provide the effective referral in a timely manner to allow patients to access care [Emphasis in original].
    2. Physicians must not expose patients to adverse clinical outcomes due to a delayed effective referral [Emphasis in original].
  4. Physicians must not impede access to care for existing patients, or those seeking to become patients [Emphasis in original].
  5. Physicians must proactively maintain an effective referral plan for the frequently requested services they are unwilling to provide[Emphasis in original].

Protecting Patient Safety

  1. Physicians must provide care in an emergency, where it is necessary to prevent imminent harm, even where that care conflicts with their conscience or religious beliefs[Emphasis in original].15
POHR notes

1.  An effective referral does not necessarily, but may in certain circumstances, involve a 'referral' in the formal clinical sense, nor does it necessarily require that the physician conduct an assessment of the patient to determine whether they are a suitable candidate for the treatment to which they object.

2.  'Available and accessible' means that the health-care provider must be in a location the patient can access, and operating and/or accepting patients at the time the effective referral is made.

3.  In the hospital setting, practices may vary in accordance with hospital policies and procedures.

10.  For more information see the College's Accepting New Patients and Ending the Physician-Patient Relationship policies.

13.  See para. 187 Christian Medical and Dental Society of Canada v. College of Physicians and Surgeons of Ontario, 2019 ONCA 393.

14.  This includes implying that the physician's religion is superior to the patient's beliefs (spiritual, secular or religious).

15.  This expectation is consistent with the College's Providing Physician Services During Job Actions policy. For further information specific to providing care in health emergencies, please see the College's Public Health Emergencies policy.

Project Annotations

i.  "Taking positive action to ensure the patient is connected" indicates that the physician must arrange for and confirm that the patient is connected with someone who provides the service or someone who can connect patient directly with someone who does (see Advice to the Profession, "What is an effective referral?").  Many objecting physicians consider this unacceptable because they believe that it entails unacceptable moral complicity in the act that follows. 

This is not an unreasonable belief.  For example, the Carter decision changed the law on murder and assisted suicide by making exemptions in defined circumstances, but it did not change the reasoning that underpins the law on parties to offences. The reasoning that supports the law against aiding or abetting murder is exactly the same reasoning used by physicians and health care providers who would refuse to provide "effective referral" for morally contested services, including euthanasia or assisted suicide.

ii.  Note the assumption that all services sought from physicians are "health services" (or "healthcare" or "care"), an assumption that is often rejected by physicians who object to a service for reasons of conscience.  For example, many physicians who refuse to be involved with euthanasia and assisted suicide do not consider homicide and suicide to be "health" services or "medical" treatment.  However, the assumption that even euthanasia and assisted suicide are "medical services" was uncritically accepted by both the Divisional Court and Court of Appeal of Ontario.  See Christian Medical and Dental Society of Canada v. College of Physicians and Surgeons of Ontario, 2019 ONCA 393. para. 1.

iii.  The issue of fiduciary duty was not addressed by the trial court.  That it might be contrary to a physician's fiduciary duty to provide or arrange for a service (as well as contrary to religious convictions) was not argued and was not addressed by the Court of Appeal.

iv.  It is incorrect to assert that the policy achieves accommodation "to the greatest extent possible."  The Court of Appeal explicitly acknowledged that less demanding policies were in force in other Canadian jurisdictions, but the College did not adopt them.  See Christian Medical and Dental Society of Canada v. College of Physicians and Surgeons of Ontario, 2019 ONCA 393. para. 153-155.

v.   That objections are in all cases "due to personal and not clinical reasons" is a mistaken assumption. Objecting physicians may have both clinical and ethical/moral objections to providing euthanasia and assisted suicide. Where both reasons exist, it is appropriate to inform the patient of both. Indeed: to withhold clinical reasons would seem to violate the requirements of informed medical decision-making.

For a critique of the effective referral requirement in the policy, see the Project Submission to the CPSO (20 February, 2015).

Other Project comment:

Advice to the Profession: Professional Obligations and Human Rights
[Full Text]

***

Effective Referrals: What Physicians Need to Know

The College recognizes that physicians have the right to limit the health services they provide for reasons of conscience or religion. However, physicians' freedom of conscience and religion must be balanced against the right of existing and potential patients to access care.Project Annotation (i)

When physicians limit the health services they provide for reasons of conscience or religion, the College requires that they provide patients with an 'effective referral'.

What is an effective referral?

Physicians make an effective referral when they take positive action to ensure the patient is connected in a timely manner to a non-objecting, available, and accessible physicians, other-health-care professional, or agency that provides the service or connects the patient directly with a health-care professional who does.Project Annotation (ii)

The objective is to ensure access to care and respect for patient autonomy. An effective referral does not guarantee that a patient will receive a treatment or signal that the objecting physician endorses or supports the treatment.Project Annotation (iii) An effective referral also does not necessarily require that a referral in the formal clinical sense be made and does not require the physician to assess or determine whether the patient is a suitable candidate or eligible for the treatment to which the physician objects.

An effective referral involves taking the following steps:

  1. The physician takes positive action to connect a patient with another physician, healthcare provider, or agency. The physician can take these steps themselves or assign the task to someone else,Project Annotation (iv) so long as that person complies with the College's expectations.
  2. The effective referral must be made to a non-objecting physician, healthcare provider, or agency that is accessible and available to the patient. The physician, healthcare provider, or agency must be accepting patients/open, must not share the same religious or conscience objection as the physician making the effective referral, and must be in a location that is reasonably accessible to the patient or accessible via telemedicine where appropriate.
  3. The effective referral must be made in a timely manner, so that the patient will not experience an adverse clinical outcome due to a delay in making the connection. A patient would be considered to suffer an adverse outcome due to a delay if, for example, the patient is no longer able to access care (e.g., for time sensitive matters such as emergency contraception, an abortion, or where a patient wishes to explore medical assistance in dying), their clinical condition deteriorates,Project Annotation (v) or their untreated pain or suffering is prolonged.Project Annotation (vi)

What are some examples of an effective referral?

The following are examples of the steps physicians can take to ensure their patient is connected in a timely and appropriate manner. The examples provided are not exhaustive and the steps needed to ensure a connection is made depend on the patient's circumstances. Physicians will need to use their judgement, considering the patient's particular circumstances, when determining how to meet this obligation.

The physician or designate contacts a non-objecting physician or non-objecting healthcare professional and arranges for the patient to be seen or transferred1.Project Annotation (ii)

The physician or designate connects the patient with an agency charged with facilitating referrals for the healthcare service, and arranges for the patient to be seen at that agency. For instance, in the medical assistance in dying (MAID) context, in appropriate circumstances an effective referral could include the physician or designate contacting Ontario's Care Coordination Service (CCS). The CCS would then connect the patient with a willing provider of MAID-related services.Project Annotation (vii)

A practice group in a hospital, clinic or family practice model identifies patient queries or needs through a triage system. The patient is directly matched with a non-objecting physician in the practice group with whom the patient can explore all options in which they have expressed an interest.Project Annotation (viii)

A practice group in a hospital, clinic or family practice model identifies a point person who will facilitate referrals or who will provide the healthcare to the patient. The objecting physician or their designate connects the patient with that point person.Project Annotation (ii)

What is the basis for physicians' right to limit the health services they provide for reasons of conscience or religion and why has the College set out an effective referral requirement?

The Canadian Charter of Rights and Freedoms (the “Charter”) protects the right to freedom of conscience and religion.2 Although physicians have this freedom under the Charter, the Supreme Court of Canada has determined that no rights are absolute and that there is no hierarchy of rights; all rights are of equal importance.3 The right to freedom of conscience and religion can be limited, as necessary, to protect public safety, order, health, morals, or the fundamental rights and freedoms of others.4

Where physicians choose to limit the health services they provide for reasons of conscience or religion, this may impede access to care in a manner that violates patient rights under the Charter and Code.5 Should a conflict of rights arise, the aim of the courts is to respect the importance of both sets of rights to the extent possible.Project Annotation (ix)

The balancing of rights must be done in context.6 In relation to freedom of religion specifically, courts will consider the degree to which the act in question interferes with a sincerely held religious belief. Courts will seek to determine whether the act interferes with the religious belief in a manner that is more than trivial or insubstantial. The less direct the impact on a religious belief, the less likely courts are to find that freedom of religion is infringed.7 Conduct that would potentially cause harm to and interfere with the rights of others would not automatically be protected.8 The Court of Appeal for Ontario has confirmed that where an irreconcilable conflict arises between a physician's interest and a patient's interest, physicians' professional obligations and fiduciary duty require that the interest of the patient prevails.9, Project Annotation (x)

The College has outlined expectations, set out below, for physicians who have a conscientious or religious objection to the provision of certain health services including that they make an effective referral. These expectations accommodate the rights of objecting physicians to the greatest extent possible,Project Annotation (xi) while ensuring that patients' access to healthcare is not impeded.

Advice to the Protession (POHR) Notes

2.  Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11, s 2(a).

3.  Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835 at p 839.

4.  R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295 at para 95.

5.  R. v. Morgentaler, [1988] 1 S.C.R. 30 at pp 58-61; Human Rights Code, R.S.O. 1990, c. H. 19.

6.  Ontario Human Rights Commission, Policy on Competing Human Rights, (Ontario: Jan 26, 2012).

7.  Syndicat Northcrest v. Amselem, [2004] 2 S.C.R. 551 at paras 59-61.

8.  Syndicat Northcrest v. Amselem, [2004] 2 S.C.R. 551 at paras 59-61.

9.  See para. 187 Christian Medical and Dental Society of Canada v. College of Physicians and Surgeons of Ontario, 2019 ONCA 393.

Project Annotations

i.  Note the assumption that all services sought from physicians are "health services" (or "healthcare" or "care"), an assumption that is often rejected by physicians who object to a service for reasons of conscience.  For example, many physicians who refuse to be involved with euthanasia and assisted suicide (EAS) do not consider homicide and suicide to be "health" services or "medical" treatment.  However, the assumption that even euthanasia and assisted suicide are "medical services" was uncritically accepted by both the Divisional Court and Court of Appeal of Ontario.  See Christian Medical and Dental Society of Canada v. College of Physicians and Surgeons of Ontario, 2019 ONCA 393. para. 1.

ii.  Many objecting physicians consider this unacceptable because they believe that it entails unacceptable moral complicity in the act that follows.

iii.  These are specious assertions. 

  • The fact that a patient may not ultimately obtain the contested service does not change the moral character of helping to arrange for the service to be obtained. 
    • By analogy, to connect someone who wants to have someone killed with a contract killer or someone willing to arrange a contract killing would constitute a criminal conspiracy, even if, for reasons beyond one's knowledge or control, no one is ultimately killed.
    • It would be absurd to suggest that connecting someone who wants to have someone killed with with a contract killer would not imply endorsement or support of the envisaged killing, whether or not it actually occurs.

iv.  Delegating the task to someone else does not relieve the principal of moral responsibility for what follows from the performance of the task.

v.  The concern here is that patients may lose the ability to consent to lethal injection and/or die of natural causes before they can be lethally injected.

vi.  The College's claim that the patient's pain or suffering in such case is untreated exemplifies pro-euthanasia bias and polemics. It is untrue that refusing to provide or arrange for euthanasia or assisted suicide leaves pain and suffering untreated.

vii.  The Care Coordination Service (CCS) is not an EAS service.  It  helps to connect patients with various end of life options, including EAS services.  For that reason, many objecting physicians would be willing to provide information to patients that would enable them to contact the CCS because the patient would assume full moral responsibility for contacting the CCS to pursue EAS. However, the College demands more than this from objecting physicians.  It demands that they contact the CCS on behalf of a patient to further the patient's goal of obtaining euthanasia or assisted suicide.  Many objecting physicians consider this unacceptable because they believe that it entails unacceptable moral complicity in the deaths of their patients.  This is not unreasonable.  There is a difference between calling the CCS for a patient who wants palliative care and calling the CCS for a patient who wants to be lethally injected.

viii.  This kind of screening arrangement can work effectively to accommodate both patients and physicians.  For example, receptionists can direct patients seeking a morally contested service to someone willing to provide it.  Note, however, that while many objecting physicians would be willing to work within such a system, they may be unwilling to participate in setting it up, except to the extent necessary to ensure that they are adequately accommodated.

ix.  An infringment of a right need not entail actual obstruction or deprivation of a service.  The emphasis in this section is on vindication of patient rights, not on the provision of medical treatment or care.

x.  The issue of fiduciary duty was not addressed by the trial court.  That it might be contrary to a physician's fiduciary duty to provide or arrange for a service (as well as contrary to religious convictions) was not argued and was not addressed by the Court of Appeal.

xi.  It is incorrect to assert that the policy achieves accommodation "to the greatest extent possible."  The Court of Appeal explicitly acknowledged that less demanding policies were in force in other Canadian jurisdictions, but the College did not adopt them.  See Christian Medical and Dental Society of Canada v. College of Physicians and Surgeons of Ontario, 2019 ONCA 393. para. 153-155.


Medical Assistance in Dying
Approved June, 2016 | Reviewed and Updated: July 2017, December 2018
[Full Text]

. . . Effective Referral: taking positive action to ensure the patient is connected2 to a non-objecting, available, and accessible3 physician, other health-care professional, or agency.4 For more information about an effective referral, see the companion Advice to Profession document.Project Annotation (i)

***

C. Conscientious Objection

The College recognizes that physicians have the right to limit the health servicesProject Annotation (ii) they provide for reasons of conscience or religion. For clarity, the College does not require physicians who have a conscientious or religious objection to MAID to provide MAID under any circumstances.13

However, physicians' freedom of conscience and religion must be balanced against the right of existing and potential patients to access care.Project Annotation (ii) The Supreme Court of Canada noted, in the Carter14 case, that the rights of physicians and patients would have to be reconciled in any regime governing MAID. The Court of Appeal for Ontario has confirmed that where an irreconcilable conflict arises between a physician's interest and a patient's interest, physicians' professional obligations and fiduciary duty require that the interest of the patient prevails.15, Project Annotation (iii)

While the federal legislation does not address the conscientious objections of health care providers, the College has outlined expectations, set out below, for physicians who have a conscientious or religious objection to MAID. These expectations accommodate the rights of objecting physicians to the greatest extent possible,Project Annotation (iv) while ensuring that patients' access to healthcare is not impeded.

  1. Consistent with the expectations set out in the College's Professional Obligations and Human Rights policy, physicians who decline to provide MAID due to a conscientious objection:
    1. must do so in a manner that respects patient dignity and must not impede access to MAID [Emphasis in original].
    2. must communicate their objection to the patient directly and with sensitivity, informing the patient that the objection is due to personal and not clinical reasons [Emphasis in original].Project Annotation (v)
    3. must not express personal moral judgments about the beliefs, lifestyle, identity or characteristics of the patient.
    4. must provide the patient with information about all options for care that may be available or appropriate to meet their clinical needs, concerns, and/or wishes and must not withhold information about the existence of any procedure or treatment because it conflicts with their conscience or religious beliefs [Emphasis in original].
    5. must not abandonProject Annotation (vi) the patient and must provide the patient with an effective referral [Emphasis in original].16,17,Project Annotation (vii)  
      1. Physicians must make the effective referral in a timely manner and must not expose patients to adverse clinical outcomes due to a delay in making the effective referral [Emphasis in original]. Project Annotation (viii)

***

MAiD Notes

2.  An effective referral does not necessarily, but may in certain circumstances, involve a 'referral' in the formal clinical sense, nor does it necessarily require that the physician conduct an assessment of the patient to determine whether they are a suitable candidate for the treatment to which they object (in the context of medical assistance in dying, this means that the physician is not required to assess whether the patient is eligible for medical assistance in dying prior to making the effective referral).

3.  'Available and accessible' means that the health-care provider must be in a location the patient can access, and operating and/or accepting patients at the time the effective referral is made.

4.  In the hospital setting, practices may vary in accordance with hospital policies and procedures.

13.  The College also does not consider a request for medical assistance in dying to be an emergency.

14.  Carter v. Canada (Attorney General), 2015 SCC 5

15.  See para. 187 Christian Medical and Dental Society of Canada v. College of Physicians and Surgeons of Ontario, 2019 ONCA 393

16.  See the definition of effective referral provided in this policy and the companion Advice to the Profession document for more information and examples of what constitutes an 'effective referral'.

17. The Ministry of Health and Long-Term Care has established the Care Coordination Service (CCS) to allow clinicians, patients, and caregivers to access information about medical assistance in dying and end-of-life care options, and to connect patients with clinicians who provide medical assistance in dying. Clinicians seeking assistance in making an effective referral can call the CCS toll-free: 1-866-286-4023. If physicians have general questions about the CCS, or wish to register for the CCS as a willing provider, please contact the Ministry of Health and Long-Term Care at maidregistration@sasc.ca. The College expects physicians to make reasonable efforts to remain apprised of resources that become available in this new landscape.

Project Annotations

i.  "Taking positive action to ensure the patient is connected" indicates that the physician must arrange for and confirm that the patient is connected with someone who provides the service or someone who can connect patient directly with someone who does (see Advice to the Profession, "What is an effective referral?").  Many objecting physicians consider this unacceptable because they believe that it entails unacceptable moral complicity in the act that follows.

This is not an unreasonable belief. The Carter decision changed the law on murder and assisted suicide by making exemptions in defined circumstances, but it did not change the reasoning that underpins the law on parties to offences. The reasoning that supports the law against aiding or abetting murder is exactly the same reasoning used by physicians and health care providers who would refuse to provide "effective referral" for morally contested services, including euthanasia or assisted suicide.

ii.  Note the assumption that all services sought from physicians are "health services" (or "healthcare" or "care"), an assumption that is often rejected by physicians who object to a service for reasons of conscience.  For example, many physicians who refuse to be involved with euthanasia and assisted suicide do not consider homicide and suicide to be "health" services or "medical" treatment.  However, the assumption that even euthanasia and assisted suicide are "medical services" was uncritically accepted by both the Divisional Court and Court of Appeal of Ontario.  See Christian Medical and Dental Society of Canada v. College of Physicians and Surgeons of Ontario, 2019 ONCA 393. para. 1.

iii.  The issue of fiduciary duty was not addressed by the trial court.  That it might be contrary to a physician's fiduciary duty to provide or arrange for a service (as well as contrary to religious convictions) was not argued and was not addressed by the Court of Appeal.

iv.  It is incorrect to assert that the policy achieves accommodation "to the greatest extent possible."  The Court of Appeal explicitly acknowledged that less demanding policies were in force in other Canadian jurisdictions, but the College did not adopt them.  See Christian Medical and Dental Society of Canada v. College of Physicians and Surgeons of Ontario, 2019 ONCA 393. para. 153-155.

v.  That objections are in all cases "due to personal and not clinical reasons" is a mistaken assumption. Objecting physicians may have both clinical and ethical/moral objections to providing euthanasia and assisted suicide. Where both reasons exist, it is appropriate to inform the patient of both. Indeed: to withhold clinical reasons would seem to violate the requirements of informed medical decision-making.

vi.  Physicians who simply refuse to help patients find someone willing to kill them or help them commit suicide are no more impeding or abandoning patients than colleagues who refuse to help patients find a physcian willing to provide virginity certificates or sell organs for transplant.

vii.  Requiring "effective referral" is unacceptable to many conscientious objectors because they believe that it makes them unacceptably complicit in homicide and suicide. The Carter decision changed the law on murder and assisted suicide by making exemptions in defined circumstances, but it did not change the reasoning that underpins the law on parties to offences. The reasoning that supports the law against aiding or abetting murder is exactly the same reasoning used by physicians and health care providers who would refuse to provide "effective referral" for euthanasia or assisted suicide.

viii.  The concern here is that patients may lose the ability to consent to lethal injection and/or die of natural causes before they can be lethally injected.

For a detailed critique of the policy, see the Project Submission to the CPSO (10 January, 2016).

 

Advice to the Profession: Medical Assistance in Dying
[Full Text]

***

Effective Referrals: What Physicians Need to Know

The College recognizes that physicians have the right to limit the health servicesProject Annotation (i) they provide for reasons of conscience or religion and so may choose not to be involved in assessing or providing MAID.Project Annotation (ii) In recognizing this right, the College does not require physicians to assess a patient's eligibility for MAID or provide MAID in any circumstances.

When physicians limit the health services they provide for reasons of conscience or religion, the College requires that they provide patients with an 'effective referral'.

What is an effective referral?

Physicians make an effective referral when they take positive action to ensure the patient is connected in a timely manner to a non-objecting, available, and accessible physicians, other-health-care professional, or agency that provides the service or connects the patient directly with a health-care professional who does.Project Annotation (iii)

The objective is to ensure access to care and respect for patient autonomy. An effective referral does not guarantee that a patient will receive a treatment or signal that the objecting physician endorses or supports the treatment.Project Annotation (iv) An effective referral also does not necessarily require that a referral in the formal clinical sense be made and does not require the physician to assess or determine whether the patient is a suitable candidate or eligible for the treatment to which the physician objects.

An effective referral involves taking the following steps:

  1. The physician takes positive action to connect a patient with another physician, healthcare professional, or agency. The physician can take these steps themselves or assign the task to someone else, so long as that person complies with the College's expectations.Project Annotation (v)
  2. The effective referral must be made to a non-objecting physician, healthcare professional, or agency that is accessible and available to the patient. The physician, healthcare professional, or agency must be accepting patients/open, must not share the same religious or conscience objection as the physician making the effective referral, and must be in a location that is reasonably accessible to the patient or accessible via telemedicine where appropriate.
  3. The effective referral must be made in a timely manner, so that the patient will not experience an adverse clinical outcome due to a delay in making the connection. A patient would be considered to suffer an adverse outcome due to a delay if, for example, the patient is no longer able to access care (e.g., for time sensitive matters such as emergency contraception, an abortion, or where a patient wishes to explore MAID), their clinical condition deteriorates,Project Annotation (vi) or their untreated pain or suffering is prolonged.Project Annotation (vii)

What are some examples of an effective referral?

The following are examples of the steps physicians can take to ensure their patient is connected in a timely and appropriate manner. The examples provided are not exhaustive and the steps needed to ensure a connection is made depend on the patient's circumstances. Physicians will need to use their judgement, considering the patient's particular circumstances, when determining how to meet this obligation.

The physician or designate contacts a non-objecting physician or non-objecting healthcare professional and arranges for the patient to be seen or transferred2.Project Annotation (iii)

The physician or designate connects the patient with an agency charged with facilitating referrals for the healthcare service, and arranges for the patient to be seen at that agency. For instance, in the MAID context, in appropriate circumstances an effective referral could include the physician or designate contacting Ontario's Care Coordination Service (CCS). The CCS would then connect the patient with a willing provider of MAID-related services.Project Annotation (viii)

A practice group in a hospital, clinic or family practice model identifies patient queries or needs through a triage system. The patient is directly matched with a non-objecting physician in the practice group with whom the patient can explore all options in which they have expressed an interest.Project Annotation (ix)

A practice group in a hospital, clinic or family practice model identifies a point person who will facilitate referrals or who will provide the healthcare to the patient. The objecting physician or their designate connects the patient with that point person.Project Annotation (iii)

For more information regarding physicians' right to freedom of conscience and religion and the basis for the College's expectations, please see the College's Advice to the Profession: Professional Obligations and Human Rights companion resource.

Advice to the Profession (MAID) Notes

2.  A transfer of care in this situation would be specific to the care to which the physician objects. A transfer is not equivalent to ending the physician-patient relationship. Physicians must not terminate the physician-patient relationship simply because the patient wishes to explore a care option to which the physician has a conscientious objection.

Project Annotations

i.  Note the assumption that euthanasia and assisted suicide are "health services" (or "healthcare" or "care"), an assumption that is often rejected by physicians who object to a service for reasons of conscience.  For example, many physicians who refuse to be involved with euthanasia and assisted suicide do not consider homicide and suicide to be "health" services or "medical" treatment.  However, the assumption that euthanasia and assisted suicide are "medical services" was uncritically accepted by both the Divisional Court and Court of Appeal of Ontario.  See Christian Medical and Dental Society of Canada v. College of Physicians and Surgeons of Ontario, 2019 ONCA 393. para. 1.

ii.  This is disingenuous.  The College demands that objecting physcians be involved in providing euthanasia and assisted suicide by actively helping patients to find and connect with colleagues willing to kill them or help them commit suicide.

iii.  "Taking positive action to ensure the patient is connected" indicates that the physician must arrange for and confirm that the patient is connected with someone who provides the service or someone who can connect patient directly with someone who does.  Many objecting physicians consider this unacceptable because they believe that it entails unacceptable moral complicity in the act that follows.

This is not an unreasonable belief.  The Carter decision changed the law on murder and assisted suicide by making exemptions in defined circumstances, but it did not change the reasoning that underpins the law on parties to offences. The reasoning that supports the law against aiding or abetting murder is exactly the same reasoning used by physicians and health care providers who would refuse to provide "effective referral" for morally contested services, including euthanasia or assisted suicide.

iv.  These are specious assertions. 

  • The fact that a patient may not ultimately obtain the contested service does not change the moral character of helping to arrange for the service to be obtained. 
    • By analogy, to connect someone who wants to have someone killed with a contract killer or someone willing to arrange a contract killing would constitute a criminal conspiracy, even if, for reasons beyond one's knowledge or control, no one is ultimately killed.
    • It would be absurd to suggest that connecting someone who wants to have someone killed with with a contract killer would not imply endorsement or support of the envisaged killing, whether or not it actually occurs.

v.  Delegating the task to someone else does not relieve the principal of moral responsibility for what follows from the performance of the task.

vi.  The concern here is that patients may lose the ability to consent to lethal injection and/or die of natural causes before they can be lethally injected.

vii.  The College's claim that the patient's pain or suffering in such case is untreated exemplifies pro-euthanasia bias and polemics. It is untrue that refusing to provide or arrange for euthanasia or assisted suicide leaves pain and suffering untreated.

viii.  The Care Coordination Service (CCS) is not an EAS service.  It  helps to connect patients with various end of life options, including EAS services.  For that reason, many objecting physicians would be willing to provide information to patients that would enable them to contact the CCS because the patient would assume full moral responsibility for contacting the CCS to pursue EAS. However, the College demands more than this from objecting physicians.  It demands that they contact the CCS on behalf of a patient to further the patient's goal of obtaining euthanasia or assisted suicide.  Many objecting physicians consider this unacceptable because they believe that it entails unacceptable moral complicity in the deaths of their patients.  This is not unreasonable.  There is a difference between calling the CCS for a patient who wants palliative care and calling the CCS for a patient who wants to be lethally injected.

ix.  This kind of screening arrangement can work effectively to accommodate both patients and physicians.  For example, receptionists can direct patients seeking a morally contested service to someone willing to provide it.  Note, however, that while many objecting physicians would be willing to work within such a system, they may be unwilling to participate in setting it up, except to the extent necessary to ensure that they are adequately accommodated.