The courts keep inventing new rights, turning our Charter on its head

National Post
Reproduced with permission

John Carpay

If I told you that I wanted to rob a home or store, would you sell me a gun? Presumably not. But what about giving me the name and contact info of another person who is willing to sell me a gun? If you wanted to avoid any participation in my planned robbery, you would refuse to provide a referral.

When it comes to female genital mutilation (the cutting and removal of some or all of a young girl’s external genitalia) the College of Physicians and Surgeons of Ontario (CPSO) recognizes that referring is as bad as providing. The CPSO prohibits this practice, common in many African and Middle Eastern countries. Female genital mutilation causes infection, disease and death in many girls, and life-long health problems for millions of women.

The CPSO policy prohibits physicians from performing, and from referring for, female genital mutilation procedures. Both performing and referring constitute professional misconduct. The reasoning is obvious. If mutilating a girl is wrong, then it’s also wrong to provide a referral for this barbaric procedure.

College of Physicians and Surgeons of Ontario in Toronto, Ont. on Tuesday April 9, 2013.

Sadly, the CPSO abandoned this common-sense approach in the case of Christian Medical and Dental Society vs. CPSO. This court case was about a challenge to the CPSO policy requiring all doctors in Ontario to provide referrals for abortion, assisted suicide, and other medical procedures which some doctors view as harmful to patients and morally wrong. In court the CPSO argued that “a referral is neither an endorsement of the service for which the referral is provided, nor a guarantee that it will be provided.” The CPSO argued that providing a referral is trivial and insignificant, so a doctor would not be violating her conscience when referring a patient for a procedure that the doctor considers harmful. If the CPSO’s courtroom arguments are true, then why prohibit referring for female genital mutilation?

The Ontario Superior Court of Justice ruled that the CPSO policy violates the Charter freedom of religion and conscience, but then justified this violation as necessary to ensure “equitable” access to health-care services.

Abortion and assisted suicide are both legal medical procedures. Plenty of doctors are available to provide the one, the other, or both. Having to ask two, three or more doctors for a particular medical service is inconvenient for patients, to be sure.

But does the Charter provide citizens with a legal right to be free from inconvenience? Beyond a bald declaration, the court provides no explanation as to how or why being inconvenienced is a violation of the Charter. Nor does the court explain why it is necessary to force every single doctor in Ontario to provide referrals for abortion and assisted suicide. In other words, even if many doctors refuse to provide referrals for these services, the public would still have ready access to both.

The purpose of the Charter is to protect citizens from government. For example, the Charter should protect health-care workers (and everyone else) from being pressured or coerced by a government body to do what one believes to be wrong.

Conversely, there is no Charter right to force another human being to provide a service that runs contrary to their conscience. Interactions between citizens should be free from coercion. A patient’s power to compel a doctor to do what the doctor believes to be harmful is as destructive as a doctor’s power to compel a patient to do what the patient believes to be harmful.

The doctors who challenged the CPSO policy were not merely asking the court to be spared an inconvenience. Rather, an Ontario doctor who refuses to violate her conscience risks expulsion from the medical profession.

In upholding the CPSO policy, the court confuses fundamental Charter freedoms with personal interests and desires. The court has dismissed the Charter’s protection from government coercion as less important than a newly invented “right” to compel our fellow citizens (in this case doctors) to do what we want them to do. The court has turned the Charter on its head.

Lawyer John Carpay is president of the Justice Centre for Constitutional Freedoms (Jccf.ca), which intervened in Christian Medical and Dental Society of Canada vs. College of Physicians and Surgeons of Ontario.

 

Doctors have right to choose what services they perform

Toronto Sun
Reproduced with permission

John Carpay

Should the government be able to force a person to do something that she or he considers to be fundamentally wrong?

Dictatorships say yes, but free countries like Canada have always said no.

For example, those who believe that killing another person is never justified, not even in a war against an invading foreign power, are exempted from mandatory military service.

Ontario’s Superior Court of Justice is considering freedom of conscience this week, in a court action brought by the Christian Medical and Dental Society (CMDS) against the College of Physicians and Surgeons of Ontario (CPSO).

The college has adopted policies that require doctors to assist patients who want to commit suicide, and to provide abortions, even if those services conflict with a doctor’s conscience or ethics. The CPSO requires doctors to provide these services themselves, or provide an “effective referral” to another doctor.

There is no shortage of doctors who are willing to do abortions, and doctors willing to assist people who want to commit suicide. So these college policies are driven by ideology, not by any practical need.

The CPSO argues that it’s no big deal for doctors to refer patients for a service that the doctor sees as wrong, and that this is a fair compromise for objecting doctors. However, when the college prohibits doctors from mutilating the genitals of young girls (called “female circumcision” in some cultures), the college also bans referring for this medical service. Why? Because referring a patient (or the parents of a young girl) to another doctor amounts to active participation. It’s like saying, “I won’t take part in robbing the bank, but I will provide the robber with information as to where he can get his gun.”

The college argues that the rights of patients are in conflict with doctors’ freedom of conscience, and that patients’ interests should prevail over constitutional rights. But in fact, Canadian courts have repeatedly ruled that patients do not have a constitutional right to any particular medical procedure. In one Ontario case, a man with liver cancer was told he had eight months to live. Adolfo Flora then spent $450,000 in the U.K. for a living-related liver transplantation, which saved his life.

The government refused to reimburse the $450,000, insisting that the government has the sole right to determine what services would or would not be provided by its health-care monopoly. The court agreed, and ruled against Flora.

In Ontario and other provinces, it’s illegal for patients to buy private health insurance and private medical services. When Canadians have no right to access essential health services outside of the government’s monopoly, it makes no sense to argue that patients have a “right” to force unwilling doctors to do what those doctors consider to be wrong.

But even if the Canadian Charter of Rights and Freedoms provided patients with a right to health care, this would still not justify violating the Charter-protected freedom of conscience that doctors — and all citizens of a free society — enjoy.

 

 

Legal group fights policy forcing pro-life doctors to refer for abortion, euthanasia

Lifesite News

Steve Weatherbe

TORONTO, February 13, 2017 (LifeSiteNews) – A Calgary conscience rights group has joined Ontario Christian doctors in fighting a requirement that they refer patients for euthanasia and abortion — and perform both procedures in emergencies.

The Justice Centre for Constitutional Freedoms (JCCF) was granted intervenor status in a legal action launched by five Ontario Christian doctors, the Christian Medical and Dental Society of Canada (CMDS), and other doctors’ groups.

Their target is the College of Physicians and Surgeons of Ontario, which controls the profession with the power to licence and de-licence doctors. In June, the Christian doctors will go to court in an attempt to have two new college policies ruled unconstitutional. . . .[Full text]

 

Assisted dying: Parliament must let doctors practise with a clear conscience

Globe and Mail
Reproduced with permission

John Carpay

Since the Supreme Court legalized physician-assisted dying last year, some have argued that physicians should be required to help patients kill themselves, even if this violates their Charter-protected conscience freedoms.

As Parliament creates new legislation to respond to this court ruling, some insist that doctors must simply provide whatever a patient may want, or else refer the patient to another doctor who will. This claim trivializes the freedom of conscience of all Canadians, and the role of ethics and morality in medicine.

For more than 2,000 years, physicians have been guided by ethics and morality, not science alone, through the foundational principles embodied in the Hippocratic Oath and its modern incarnations.

In deciding what is best for their patients, doctors are not mindless dispensaries for medication. Science can inform us about what quantity of which drug is required to end a patient’s life, but science cannot tell us whether it is right to end a patient’s life through assisted suicide or other means of deliberate death.

 

Physicians routinely refuse to provide  –  and offer referrals for  –  drugs and procedures that the physician considers contrary to a patient’s best interest. From the patient’s standpoint, this produces inconvenience and possibly hardship. But the patient is not prevented from finding another doctor, whereas the doctor cannot go and find another conscience. She has only her own.

To refer for something is to participate actively. If a man asks me to sell him a gun to rob a convenience store, and I respond by refusing to sell the gun, but nevertheless provide him with the name and contact information of someone who will, I am complicit in the resulting robbery. This is why the provincial Colleges of Physicians and Surgeons, when they prohibit a doctor from performing female “circumcision” (genital mutilation), they also prohibit doctors from referring for that service.

Opponents of conscience protection denounce the prospect of a patient having to face a delay because her physician could not, in good conscience, provide a referral to another physician. Yet thousands of Canadians suffer in pain while waiting for months (and sometimes years) for medically necessary diagnosis and surgery. The law prevents these suffering patients from accessing private treatment outside of the government’s monopoly over health care.

With the exceptions of Canada, Cuba and North Korea, every other country in the world gives patients the right to choose between private and government-run health care. France, Japan and Australia are among the dozens of countries where patients count their wait times in days and weeks, not in months and years as Canadian patients do. If our goal is truly to get rid of delays in accessing medical services, then legalizing private health insurance would do far more than attacking the conscience rights of physicians, nurses, pharmacists and other health-care providers.

To protect the integrity of the medical profession, Parliament, as well as the provincial Colleges of Physicians, should promote and encourage the ability of physicians to practise medicine knowing that their freedom of conscience is being respected.

http://www.theglobeandmail.com/opinion/assisted-dying-parliament-must-let-doctors-practise-with-a-clear-conscience/article28569267/

 

 

Ontario College of Physicians approves policy compelling doctors to abort, euthanize in some cases

LifeSite  News

Steve Weatherbe

TORONTO, March 6, 2015 (LifeSiteNews.com) – Ontario doctors could be compelled to perform abortions and euthanasia after the professional regulator’s ruling council approved its controversial new policy Friday morning in a 21-3 vote.

The College announced today in a news release that its new Professional Obligations and Human Rights policy “requires physicians to provide their patients with an effective referral to another health-care provider for those services the physician chooses not to provide for reasons of conscience or religion.”

But it does more, and requires doctors not only to refer but to provide service if required to alleviate “suffering.”

Commented one of the policy’s severest critics, Sean Murphy of the Protection of Conscience Project: “The Ontario College of Physicians has decided they are prepared to compel physicians to do what they consider is wrong, even homicide or suicide and punish them if they refuse. If institutions can order citizens to do what they believe is evil, what can they not do?” . . . [Full text]

An attack on the conscience rights of physicians

National Post
Reproduced with permission

John Carpay

Ontario’s College of Physicians and Surgeons is determined to force every family doctor to participate in abortion and euthanasia, either by providing these services, or by referring patients to other doctors who will.

The College dismisses Charter-protected conscience rights as “personal values and beliefs” that are not nearly as important as “clinical” beliefs. This distinction is wholly artificial, as shown by the very existence of modern medical ethics. There is nothing clinical or scientific about the moral prescriptions in the Hippocratic Oath: To “take care that patients suffer no hurt or damage” and to “use knowledge in a godly manner.” This “sacred oath” cuts across religious, philosophical, and political boundaries, and has been the bedrock of the physician’s pledge to his patients and society for over two millennia.

Medical ethics, both ancient and modern, are based entirely on religious and moral beliefs. A doctor guided by science to the exclusion of morality is inherently untrustworthy. A good doctor acts on both moral and scientific beliefs.

The college’s draft policy on doctors’ professional obligations assumes that patients have a “right” to receive whatever medical services they may desire from any doctor. The college provides no basis for this assumption, because, in fact, patients do not enjoy a legal right to obtain whatever medical services or treatments they want.

The college’s justification for coercing pro-life doctors into referring patients for abortion or euthanasia services relies heavily on Ontario’s Human Rights Code. But the code says nothing about which medical procedures should be available to patients, or whether all doctors must be willing to provide them. The code merely requires doctors to serve all patients equally, regardless of the patient’s age, race, gender, religion, etc. The code would, for example, prohibit a pro-choice doctor from providing abortions only to patients of some ethnic groups, but not others.

The college then jumps to the argument that a doctor’s Charter-protected freedom of conscience and religion needs to be “balanced” against a patient’s “right” to receive desired services from every doctor. But there is no need to balance a Charter right against another right that doesn’t exist.

The college claims that refusing to participate in abortion and euthanasia amounts to “impeding” access. This argument is quite a stretch. If a doctor refuses to prescribe an abortion-inducing drug to a patient, that doctor is certainly causing the patient inconvenience. But in no way is that doctor “impeding” the patient from obtaining the drug from other doctors, the vast majority of whom routinely prescribe such drugs.

While claiming to be concerned about patients’ access to health care, the college ignores the Supreme Court’s ruling in Chaoulli v. Quebec, which declared that “access to a waiting list is not access to health care.” The court in Chaoulli was unanimous in holding that a government monopoly over health care, when it condemns patients to suffer and die on waiting lists, violates the constitutional rights of Canadians.

When it comes to essential health services like cancer diagnosis, cancer treatment and orthopaedic surgery, politicians in Ontario and other provinces have passed laws that make it effectively illegal for patients to use their own after-tax dollars to buy private medical services and private health insurance. The college is not troubled by the fact that patients are entirely at the mercy of the bureaucrats and politicians who run the Ontario government’s health-care monopoly, and who alone decide what medical services patients will and will not have access to.

In short, the college’s attack on physicians’ conscience rights has nothing to do with patients’ access to health care. In light of the willingness of most doctors to provide or refer for abortion and euthanasia, the minority of pro-life doctors are making a statement, not impeding access. But rather than advocate for expanded access to all kinds of health care for all patients, the college acts ideologically to remove all visible opposition to its own popularly accepted moral beliefs. This ideological attack strikes at the root of Canada’s free society, which should welcome the full participation of all persons, even those with unpopular convictions.

 

All Saskatchewan doctors must refer for abortions: draft policy

 LifeSiteNews

Steve Weatherbe

Saskatchewan pro-life doctors will soon be forced to act against their consciences and required to refer patients who want treatments such as abortion to other doctors. And if no other doctor is available, doctors could be required to do abortions provided they are technically competent.

So says a draft policy of the Saskatchewan Physicians and Surgeons that the organization’s ruling council approved in principle on January 16.  It will vote again to enshrine the document in the professional code of ethics at its meetings on March 26 and 27, and provides member doctors just until March 6 to give feedback. . . [Full text]

   

Conscience rights for Ontario doctors may be on chopping block again

LifeSite News

Pete Balinski

Ontario’s College of Physicians and Surgeons is looking to update its policy on whether or not a doctor can refuse treatments on religious or moral grounds. The move has life and family advocates concerned doctors may be forced to violate their moral convictions when serving a patient, including one day being forced to participate in or refer for abortion and euthanasia.

“It is dangerous to ask anyone to set aside moral convictions. The greater the power and influence of the person involved, the more dangerous it is,” Sean Murphy, administrator of the Canada-based Protection of Conscience Project, told LifeSiteNews.

The College’s policy review comes at a time when mainstream media has highlighted a number of stories about women complaining that doctors would not prescribe birth control pills, either because of a medical judgment, ethical concerns, or religious beliefs. The reports have consistently sided with the pill-seeking women over the doctors. . . .[Full text]

If you want birth control pills, go to a different doctor

 Calgary Herald
Reproduced with permission

John Carpay

A Calgary doctor’s refusal to prescribe birth control pills has triggered demands for her ouster from the medical profession.

Progressive Conservative leadership candidate Jim Prentice has denounced the doctor’s choice to follow her conscience as inconsistent with “a doctor’s obligation in a public health-care system.” Apparently Prentice believes that a doctor should simply do and provide whatever the patient wants done and provided, regardless of the doctor’s education, training, experience, conscience, and professional judgment.

This raises some interesting questions. If a doctor, based on her experience and research, believes that liberation therapy (dilating and opening blocked neck veins) is not a good option for patients suffering from multiple sclerosis, must she provide that therapy simply because the patient demands it?

What about a doctor who is convinced that anti-cholesterol pills do more harm than good? What if a doctor refuses to prescribe birth control pills because she believes, apart from any religious teaching, that they compromise women’s health? Should this physician disregard her own research, analysis and conclusions and prescribe what she considers to be a dangerous product?

Does it really matter whether the doctor’s belief is characterized as scientific, religious, metaphysical, conscientious, or something else?

Certainly a doctor’s beliefs about what is, or is not, good medicine will sometimes inconvenience a patient. But what would be the consequences of forcing doctors to abandon their professional judgment and violate their conscience in order to pander to patients’ wishes? If the government compels doctors to supply whatever patients demand, this presupposes that a patient’s knowledge, training and judgment is at least equal to that of the doctor’s. And if so, why bother with a medical profession in the first place? If individual doctors don’t have the right to reach their own conclusions as to what is good or bad, why bother to distinguish doctors from those who are not doctors?

These same questions apply to other professions and occupations. Would Jim Prentice (who is a lawyer) impose this same standard on lawyers who refuse to act for a client, or who decline to take a particular case, because the lawyer’s conscience says that doing so would be wrong? Our legal system is as public as the medical system. Why not remove from lawyers their current right to refuse to advance a cause that the lawyer believes to be unjust? Should lawyers be permitted to inconvenience prospective clients by telling them to find another lawyer? Shouldn’t clients be entitled to receive from a particular lawyer whatever services they demand?

The same question about a consumer’s supposed right to be free from inconvenience arises in other contexts. Should a Jewish or Muslim butcher be compelled to sell pork to the public, just because pork is popular? Or should the citizens of a free society exhibit tolerance and respect for the conscience of these businessmen, and suffer the inconvenience of buying pork elsewhere?

A free and democratic society allows consumers and providers to accept or decline each other’s business, without state coercion. In a free society, the government does not force doctors, lawyers, butchers and other people to do things that they do not wish to do. This is freedom, and it sometimes causes inconveniences. But freedom cannot coexist with a purported “right” of patients, clients and consumers to use government’s coercive power to obtain whatever goods or services they want, from unwilling suppliers.

People who cherish our free society understand that the inconvenience of not immediately getting what you want is part of life. We live in a society where people have all manner of differing beliefs and commitments. Part of the price we pay for freedom is that not everyone will wish to help you do what you want. You may need to find a different doctor, or another lawyer. You may need to go to a different butcher or restaurant to buy pork. People who disagree with you are people too.

If Jim Prentice respects the freedom of lawyers to decline cases and clients, he should support the right of doctors – and everyone else – to do likewise. That would be consistent with the free society of which Albertans are rightfully proud.