Ontario Court of Appeal supports ‘effective referral’ for morally contested procedures, including euthanasia


Court unanimously affirms right of state to compel participation in homicide, suicide, etc.

News Release

Protection of Conscience Project

On 15 May, 2019, three judges of the Ontario Court of Appeal unanimously upheld a lower court ruling that physicians can be forced to facilitate procedures they find morally objectionable, including euthanasia and assisted suicide, by connecting patients with willing providers (“effective referral”).

The Court of Appeal judgement concerned a 2018 decision by the Ontario Divisional Court that had been appealed by the Christian Medical and Dental Society of Canada and others. The litigation was a response to a compulsory “effective referral” policy imposed by Ontario’s state medical regulator, the College of Physicians and Surgeons of Ontario.

The Protection of Conscience Project, Catholic Civil Rights League and Faith and Freedom Alliance jointly intervened at trial and in the appeal in support of freedom of conscience.

The Divisional Court and the Court of Appeal both acknowledged the joint intervention, but neither considered the arguments it proposed because the case was decided solely on the basis of freedom of religion claims. The Court of Appeal held that the evidence at trial was “insufficient to support an analysis of freedom of conscience.”

“To the extent the individual appellants raise issues of conscience,” said the Court, “they are inextricably grounded in their religious beliefs,” so that, “at its core, the appellants’ claim is grounded in freedom of religion.”[para. 85]

Since the arguments in the Project’s intervention were not addressed at trial or in the appeal, Project Administrator Sean Murphy believes that they are unaffected by the decision.

“The focus of the Court was on religiously-motivated refusal to participate in perceived wrongdoing,” said Murphy. “The analytical framework proposed in the joint intervention could easily have been adapted and applied to that particular form of the exercise of religious freedom. The evidentiary record would have been sufficient for that purpose.”

“However, the Court did not do this, so the arguments still stand, and they can be raised again in another appropriate case.”

The decision demonstrates that the judges uncritically adopted the view of the College that euthanasia, assisted suicide, abortion, contraception, sterilization, sex change surgery, etc. are acceptable forms of medical treatment or health care. They further noted that abortion, euthanasia and assisted suicide “carry the stigmatizing legacy of several centuries of criminalization grounded in religious and secular morality.” [para. 123]. On the other hand, they gave no weight to contrary views held by the plaintiffs.

The Court of Appeal also supported the College’s assertion that objecting physicians unwilling to comply with the demand for effective referral could change their scope of practice and move into fields like “sleep medicine, hair restoration, sport and exercise medicine, hernia repair, skin disorders . . . obesity medicine, aviation examinations, travel medicine . . . administrative medicine or surgical assistance.”[para. 71]

The appellants have 60 days to consider and appeal to the Supreme Court of Canada.

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Contact: Sean Murphy, Administrator
Protection of Conscience Project
Email: protection@consciencelaws.org

Doctors to fight new abortion law

Hawthorn Caller

Mike Billings

A group of doctors opposed to abortion say they will fight any moves in looming reforms to erode their rights to refuse to deal with patients wanting abortions. The issue of referring patients seeking abortions to another doctor has drawn opposition from the group.

Justice Minister Andrew Little says he agrees with a Law Commission proposal for doctors who are “conscientious objectors” to abortion to be made to directly refer a patient on to another doctor who they know will provide the service.

Currently, such doctors only have to advise the patient they can get the service elsewhere without specifying where. . . [Full text]

Abortion and the medical profession

The Irish Times (Letter)
Reproduced with permission

Dr. Noreen O’Carroll

Sir, –

Dr Mark Murphy states that doctors who are opposed to abortion are in no way affected by the new service and their conscientious right to objection is respected.

In fact, doctors who have a conscientious objection are legally compelled to make arrangements for the transfer of care of the pregnant woman concerned to someone who will terminate the pregnancy. For doctors who cherish human life from its origins, that is tantamount to making them accomplices in taking the life of a developing baby.

This is an abuse of conscience and contrary to the practice of medicine in the spirit of the Hippocratic oath which prohibits the direct intentional taking of human life.

Dr Murphy, who you omitted to mention is on the staff of the department of general practice at the Royal College of Surgeons in Ireland, is one of a minority of GPs in Ireland who have signed up to provide abortion services; the vast majority of GPs have not done so – 274 was the figure recently reported by the HSE.

I am not now, nor have I ever been, a member of a pro-life group; although as an ordinary citizen, I have consistently advocated for the life of the developing baby to be legally protected and have voted accordingly.

– Yours, etc, Dr Noreen O’Carroll, (Lecturer in Medical Ethics, RCSI), Blackrock, Co Dublin.

New hope for Ontario doctors’ conscience fight

The Catholic Register

Michael Swan

New evidence heard in court has given Ontario’s medical conscientious objectors renewed hope.

Two days of hearings before the Ontario Court of Appeal Jan. 21-22 has provided Christian Medical and Dental Society (CMDS) executive director Deacon Larry Worthen a dollop of confidence as he waits for a decision from the three-judge panel.

“We gave a very good presentation,” Worthen told The Catholic Register after the appeal. “There were some new arguments. There was new evidence.”

The three-judge panel’s ruling has been reserved, with observers expecting a decision in March. . . [Full text]

Conscientious objection to abortion, the law and its implementation in Victoria, Australia: perspectives of abortion service providers

Louise Anne Keogh, Lynn Gillam, Marie Bismark, Kathleen McNamee, Amy Webster, Christine Bayly, Danielle Newton

Abstract

Background

In Victoria, Australia, the law regulating abortion was reformed in 2008, and a clause (‘Section 8’) was introduced requiring doctors with a conscientious objection to abortion to refer women to another provider. This study reports the views of abortion experts on the operation of Section 8 of the Abortion Law Reform Act in Victoria.

Methods

Nineteen semi-structured qualitative interviews were conducted with purposively selected Victorian abortion experts in 2015. Interviews explored the impact of abortion law reform on service provision, including the understanding and implementation of Section 8. Interviews were transcribed verbatim and analysed thematically.

Results

The majority of participants described Section 8 as a mechanism to protect women’s right to abortion, rather than a mechanism to protect doctors’ rights. All agreed that most doctors would not let moral or religious beliefs impact on their patients, and yet all could detail negative experiences related to Section 8. The negative experiences arose because doctors had: directly contravened the law by not referring; attempted to make women feel guilty; attempted to delay women’s access; or claimed an objection for reasons other than conscience. Use or misuse of conscientious objection by Government telephone staff, pharmacists, institutions, and political groups was also reported.

Conclusion

Some doctors are not complying with Section 8, with adverse effects on access to care for some women. Further research is needed to inform strategies for improving compliance with the law in order to facilitate timely access to abortion services.


Keogh LA, Gillam L, Bismark M, McNamee K, Webster A, Bayly C, Newton D. Conscientious objection to abortion, the law and its implementation in Victoria, Australia: perspectives of abortion service providers. BMC Medical Ethics201920:11.

The CCRL Participates In Ontario Court of Appeal with Oral Arguments in Support of Physicians’ Conscience Rights

News Release

Catholic Civil Rights League

Toronto, ON January 25, 2019 – The Catholic Civil Rights League (CCRL) participated with oral arguments in the CMDS et al v. CPSO hearing at the Ontario Court of Appeal on January 21 and 22. Individual Catholic and Christian doctors and organizations had challenged the College of Physicians and Surgeons of Ontario (CPSO), which over the course of the past three years had stipulated an “effective referral” regime, forcing Ontario doctors who objected to morally objectionable procedures to provide an “effective referral” to a willing doctor for such services. Previously, doctors were relieved from any such obligation. Ontario is the only provincial or territorial jurisdiction which has made such demands of its doctors.

The Ontario Divisional Court had ruled in favour of the CPSO, on January 31, 2018, despite finding that the religious freedom of doctors had been infringed. The appellants and the League, in conjunction with the Faith and Freedom Alliance and the Protection of Conscience Project, had argued that such “effective referrals” made objecting doctors complicit in the provision of the objectionable procedures, such as abortion, or assisted suicide. The previous court decision allowed the infringement as a modest incursion into the rights of physicians, in the context of the ability of patients to access publicly available “services”. Moreover, the court previously ruled that objecting physicians could re-arrange their practice specialties to “accommodate” such referrals. The doctors and their respective organizations appealed.

In addition to the arguments presented by the lawyers for the appellants, the CCRL and its partners raised the particular arguments that such demands were in breach of the conscience rights of Ontario doctors, as forcing individuals to do something that they considered “wrong”, and was a form of enforced servitude.

Click here to view the CCRL’s written factum, submitted in November 2018, which made reference to important principles of law and philosophy, quoting Martin Luther King Jr., Jacques Maritain, and others.

At the appeal hearings, held at Toronto’s Osgoode Hall, arguments focused on whether the CPSO could justify its referral policy as a “reasonable limit” on the rights of objecting doctors. The CCRL’s lawyer, Mr. Emrys Davis, submitted that moral rights are central to one’s sense of human dignity, and that it was unacceptable to marginalize objecting physicians as religious extremists. Moreover, given that the Ontario Medical Association likewise opposed the “effective referral” regime, such concerns were shared by a large numbers of Ontario doctors. The CCRL and its partners argued that the referral requirement imposed the values of the state upon individuals, forcing them to violate their own constitutionally protected consciences, without justification.

The CPSO’s lawyers had suggested that objecting doctors could go so far as to instruct an intake employee to make the proposed referrals on their behalf. We argued that such doctors would still be responsible morally to such a proposal, and would be left with no meaningful choice. Telling an employee to commit an immoral act would still offend the consciences of objecting doctors. The choice imposed by the CPSO was either to violate one’s conscience, or become subject to professional discipline for refusing to make such referrals.

In his closing remarks, Chief Justice of Ontario George Strathy thanked the many interveners for bringing their unique viewpoints and knowledge to the assistance of the court, which reserved its decision to a later date. The CCRL thanks the fine work of our lawyers at Bennett, Jones in Toronto, for its efforts on behalf of our interveners.


About the CCRL

Catholic Civil Rights League (CCRL) (www.ccrl.ca) assists in creating conditions within which Catholic teachings can be better understood, cooperates with other organizations in defending civil rights in Canada, and opposes defamation and discrimination against Catholics on the basis of their beliefs. The CCRL was founded in 1985 as an independent lay organization with a large nationwide membership base. The CCRL is a Canadian non-profit organization entirely supported by the generosity of its members.

To donate to the CCRL, please click here.

For further information: Christian Domenic Elia, PhD CCRL Executive Director 416-466-8244 @CCRLtweets

Protection of Conscience at the Ontario Court of Appeal

News Release

Protection of Conscience Project

On 21/21 January the Protection of Conscience Project jointly intervened at the Court of Appeal of Ontario to support freedom of conscience against an oppressive policy of Ontario’s state medical regulator, the College of Physicians and Surgeons of Ontario (CPSO). CPSO policies demand that physicians who object to morally contested procedures – including euthanasia and assisted suicide – must help patients find a colleague willing to provide the contested services.

The Court was hearing the appeal of the Christian Medical and Dental Society of Canada, the Canadian Federation of Catholic Physicians’ Societies, Canadian Physicians for Life and five individual physicians against an Ontario Divisional Court decision . The Divisional Court had ruled in favour of the CPSO, ruling, in effect, that physicians unwilling to do what they believed to be wrong by providing “effective referrals” were free to move to medical specialties where they would not face conflicts of conscience.

Expert evidence from the appellants indicated that it is extremely difficult for physicians to retrain, and that only 2.5 per cent of all physician positions in Canada would be “safe” for objecting physicians: pathology, hair loss, obesity medicine, sleep disorders and research were among the few available specialities.

The appellants’ submissions were supported by the intervention of the Ontario Medical Association, representing more than 41,000 practising and retired physicians, medical students and residents.

Joining the Project as “Conscience Interveners” were the Catholic Civil Rights League and Faith and Freedom Alliance. The joint submission noted the difference between perfective freedom of conscience (doing what one believes to be good) and preservative freedom of conscience (refusing to do what one believes to be wrong), a distinction hitherto ignored in judicial analysis.

Acknowledging that freedom of conscience can be limited to safeguard the common good, the Conscience Interveners argued that it does not follow that limits on perfective and preservative freedom of conscience can be justified on the same grounds or to the same extent.

The joint intervention drew the Court’s attention to the opinion of Supreme Court Justice Bertha Wilson in R v. Morgentaler, the only extended discussion of freedom of conscience in Canadian jurisprudence. Justice Wilson’s reasoning drew upon the key principle that humans are not a means to an end, and we should never be exploited by someone as a tool to serve someone else’s good – a principle championed by people like Martin Luther King Jr.

This principle – identified as the principle against servitude – was proposed as a principle of fundamental justice, a novel and constitutionally significant assertion. Alternatively, the Conscience Interveners argued that the principle against servitude is so foundational to human rights and freedoms it is difficult to imagine how violating it might be justified.

Forcing someone to participate in perceived wrongdoing demands the submission of intellect, will, and conscience, and violates the principle against servitude by reducing that person to the status of a tool to be used by others. This manner of servitude cannot be reconciled with principles of equality. It is an assault on human dignity that deprives physicians of their essential humanity.

Factum of the Conscience Interveners

The Evangelical Fellowship of Canada, B’nai Brith, and the Justice Centre for Constitutional Freedoms intervened in support of the physician appellants. Dying With Dignity Canada and the Canadian Civil Liberties Association intervened against them.

The Court reserved its decision.

Related: CCRL news release

Contact: Sean Murphy, Administrator, Protection of Conscience Project Email: protection@consciencelaws.org

Group challenges ruling requiring doctors to give referrals for services that clash with beliefs

CTV News

Paola Loriggio

TORONTO — Ontario doctors challenging a court ruling that found physicians must give referrals for medical services that clash with their moral or religious beliefs say there is no proof that removing that requirement would hamper patients seeking treatment.

A group of five doctors and three professional organizations is appealing a divisional court decision that upheld a policy issued by the province’s medical regulator, arguing the lower court made several errors.

The group, which includes the Christian Medical and Dental Society of Canada, the Canadian Federation of Catholic Physicians’ Societies and Canadian Physicians for Life, is asking Ontario’s highest court to strike down the policy. The case is set to be heard in Toronto on Monday and Tuesday. . . [Full text]

Physicians in Canada should be moral actors, not robotic bureaucrats

Doctors should not be obliged to write referrals for procedures they find morally objectionable

CBC

Brian Bird

Earlier this week, Ontario’s highest court heard a case that pits access to health care against the moral convictions of doctors. The case essentially tests the extent to which Canadians can follow their own moral compasses while operating in a professional capacity.

In Ontario, doctors can refuse to perform procedures or prescribe drugs that they consider immoral. However, the public body that regulates these doctors – the College of Physicians and Surgeons of Ontario (CPSO) – requires them to refer patients to doctors who are willing and able to provide the requested health care service. . .
Full text