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Bulletin

Ontario Court Upholds Requirement that Physicians Provide an Effective Referral, and Comments on the Legal Status of CPSO Policies

Fasken
Reading Time 7 minute read
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Health Bulletin

On January 31, 2018, the Divisional Court of Ontario (the "Court") released its decision in The Christian Medical and Dental Society of Canada v. College of Physicians and Surgeons of Ontario, 2018 ONSC 579. The applicants, individual physicians and three national associations of physicians aligned on religious grounds, challenged the constitutionality of policies of the College of Physicians and Surgeons of Ontario ("CPSO") that require physicians who object on moral or religious grounds to providing certain medical services to make an effective referral to a non-objecting health care practitioner. The Court dismissed the application, concluding that the infringement of religious freedom was demonstrably justified. In doing so, the Court commented on the legal force of CPSO policies. An application for leave to appeal was filed in the Ontario Court of Appeal on February 20, 2018. We will provide updates as this matter progresses.

The CPSO Policies

The Court considered two CPSO policies:

1. Policy Statement #2-15 (the "Human Rights Policy"); and

2. Policy Statement #4-16 (the "MAID Policy").

    (collectively, the "Policies")

The Human Rights Policy requires that physicians who are unwilling to offer care for reasons of conscience or religion provide an effective referral. It also requires physicians to provide care in an emergency even if that care conflicts with their conscience or religious beliefs. The applicants argued that the Human Rights Policy requires them to provide patients with access to services such as abortion, contraception, fertility treatments, prenatal screening and transgender treatments, contrary to their objections on religious grounds.

The MAID Policy was adopted by the CPSO following the decision in Carter v. Canada, 2015 SCC 5 and the subsequent amendments to federal law under Bill C-14, An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying). For an in-depth overview of Bill C-14, read our earlier bulletin (An In-Depth Overview of Bill C-14 Medical Assistance in Dying). The MAID Policy requires that where a physician declines to provide medical assistance in dying for reasons of conscience or religion, the physician must provide an effective referral.

The Court did not address in detail the emergency provisions of the Human Rights Policy, finding that there was no factual foundation to establish an infringement of the rights of religious physicians, and that the emergency provisions directly engage a patient's right to life under section 7 of the Charter. The bulk of the Court's analysis concerned the requirement for effective referral in the Policies.

The Legal Force of the Policies

Before turning to the constitutional issue, the Court assessed the legal effect of CPSO policies. The Court determined that the Policies establish the CPSO's expectations of physician behaviour and are intended to have normative force. The Court went on to distinguish the Policies from regulations and from a "code, standard or guideline relating to the standards of practice of the profession" adopted by the CPSO and enforceable pursuant to section 95(1.1) of the Health Professions Procedural Code, being Schedule 2 to the Regulated Health Professions Act, 1991. Non-compliance with the Policies is not a specific act of professional misconduct. While the Policies may be used as evidence of professional standards and the expectations of medical professionalism, a physician would be able to argue that, on the facts of a particular case, failure to uphold the Policies did not constitute professional misconduct.

The CPSO acknowledged, and the Court agreed, that the Charter applies to the Policies because the Policies are within the CPSO's statutory mandate and therefore governmental in nature. The Court went on to observe that the CPSO not only has authority, but also has an obligation, to provide its members with guidance regarding the manner of compliance with Charter values in the practice of medicine, including the furtherance of equitable access to health care services.

The Standard of Review

The Court determined that it was assessing a particular "law" for compliance with the Charter, rather than an administrative decision, and therefore it should apply a standard of correctness in reviewing the Policies. Under review was whether the Policies unduly infringe the Charter rights and freedoms of the applicants, rather than the constitutionality of the decision of CPSO to adopt the Policies. While the Policies do not establish legally binding rules, the Court found that the more important consideration was that the Policies are expected to be persuasive in disciplinary hearings and therefore engage a constitutional question of law that is of general importance: the appropriate balance between the right of religious freedom or equality rights of a medical professional and the right of patients to equitable access to health care services.

The Constitutional Issues

The Policies Infringe the Right to Freedom of Religion But Not Equality

The Court determined that the Policies infringe the religious freedom of the individual applicants under section 2(a) of the Charter. The Court rejected the CPSO's argument that the burden imposed on the applicants was "trivial or insubstantial" because of the absence of a specific penalty for non-compliance with the Policies. The Court held that the "moral suasion" associated with the Policies would be important enough in discipline to engage Charter protection.

The Court rejected the applicants' submission that the Polices infringe their right to equality under section 15 of the Charter. Even if the effective referral requirements create a distinction between objecting physicians and all other physicians, the Policies are an attempt to take into account the circumstances of the objecting physicians rather than to discriminate against them. Their claim "does not arise from any demeaning stereotype but from a neutral and rationally defensible policy choice".

The Infringement is Justified

The Court held that the limit on religious freedom imposed on objecting religious physicians as a result of the effective referral requirements is justified by the goal of ensuring access to health care. It therefore concluded that the infringement of the applicants' freedom of religion was justified under section 1 of the Charter.

The Policies Have an Objective of Sufficient Importance

After concluding that the Policies were prescribed by law, the Court found that the objective of the Policies is of sufficient importance to warrant overriding rights of religious freedom. The Court observed that while there is no right to a particular medical service under the provincial health system, there is a right to equitable access to such services as the government chooses to make available. The Court observed that physicians are "gatekeepers" of health care services and have an obligation not to abandon their patients or put their interests ahead of the interests of their patients. The Court determined that based on the evidence there was a real risk of depriving people of equitable access to health care, particularly for vulnerable members of society, in the absence of the effective referral requirements.

The Means Chosen are Reasonable and Demonstrably Justified

The Court also concluded that the effective referral provisions are rationally connected to the objective of the Policies. The Policies guide physicians on how to uphold their professional and ethical obligations and it is reasonable to conclude that they facilitate patient access to care.

The Court reviewed alternative models considered by the CPSO and found that the effective referral requirement minimally impairs religious freedom. While other regulators in Canada have developed policies that are arguably less restrictive of physicians' religious and conscientious freedom, the CPSO should not be deprived of its statutorily-mandated authority to make its own reasonable and informed decisions regarding complex policy issues.

Finally, the Court assessed the proportionality of the objective of the Policies and the effects on the applicants. The Court found that effective referral will make a positive difference in ensuring access to health care. The applicants argued that objecting physicians will be required to choose between violating their beliefs and risking professional discipline. They further argued that certain objecting physicians will be forced to leave the particular field of medicine in which the physicians currently practise. On this issue, the Court held that while the Charter confers a right to equitable access to medical services, the applicants do not have a right, at common law or under the constitution, to the practice of medicine. A medical licence is granted by statute and subject to regulation by the CPSO with a view to protecting the public interest. The Court found that access, particularly equitable access, was a goal that should not be lightly compromised. While objecting physicians will experience an impact on their professional lives, they are not deprived of continuing to carry on the practice of medicine in Ontario in accordance with their beliefs.

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