This week the Ontario Superior Court heard arguments from physicians who are challenging the policy of the Ontario College of Physicians and Surgeons that requires doctors to provide effective referrals for patients regarding medical assistance in dying.
Challenging referral policy isn’t exactly new, as physicians have grappled with this in the past, most notably as it’s applied to abortion. Nor is this court challenge unexpected, given that the Canadian Medical Association – the lobby arm of physicians in Canada – had made it quite clear from the onset that their membership was divided on the issue of medical assistance in dying.
But this challenge isn’t about doctors simply objecting to aiding someone in ending their own life, as no legislation, regulation, or policy requires a doctor to perform any procedure that they have a moral, ethical or religious objection to. This is regarding a specific policy that was put in place in 2015 by the Ontario College of Physicians and Surgeons requiring doctors who have a moral or religious objection to medical assistance in dying to refer the patient to another physician.
The college defines this as “a referral made in good faith, to a non-objecting, available, and accessible physician, nurse practitioner or agency. The referral must be made in a timely manner to allow the patient to access medical assistance in dying. Patients must not be exposed to adverse clinical outcomes due to delayed referrals.”
The claim being made by the doctors is that the simple act of referral is a violation of their Charter rights. Of course, a referral to another physician does not mean that the patient in question will automatically obtain assistance in dying. It simply means that the newly referred-to physician will now answer questions the patient may have about the procedure and any other options available, with medical assistance in dying being one of those options.
I have no doubt that the doctors in question truly do believe that the mere act of providing information to a patient is an infringement on their Charter rights. But I have a very hard time thinking that the courts will see it that way. The crux of the matter here isn’t whether the doctors subjectively believe their rights have been violated, although that is certainly part of the test for establishing a case for an infringement of one’s Charter rights, but rather the objective measure of whether those conscience and religious rights are actually being infringed upon by this referral policy.
While it’s true that Canada has jurisprudence and legislation recognizing the fundamental importance of freedom of religion, including the right to practice one’s faith however they see fit, the Supreme Court has long established that no right is absolute.
In fact, for as long as I’ve been alive, the Canadian interpretation of this has been that in instances where one’s religion or freedom of conscience comes into opposition with the fundamental rights and freedoms of others, the right to freedom of religion and conscience can be limited as necessary.
This was further clarified by the Supreme Court over a decade ago, wherein the majority opinion stated that even if individuals have a sincerely held religious belief or practice, the exercise of that religious belief or practice must be taken in consideration within the context of the competing fundamental rights of other individuals who would be directly adversely affected.
In its landmark decision striking down the Criminal Code provisions that criminalized medical assistance in dying, the Supreme Court noted that the Canadian Medical Association explicitly stated that the Charter rights of patients and physicians would need to be reconciled by any forthcoming legislative and regulatory regime. The policy of the Ontario College of Physicians and Surgeons does exactly that.
The reality is that in Canada, patients already have next to no rights. We cannot freely choose our own physicians, holding physicians legally liable for medical malpractice is a near impossible feat, and a physician’s past professional misconduct, including sexual abuse of their own patients, is often not an impediment to their continued practice of medicine.
Do we really want to further erode the already bare minimum rights Canadian patients can claim in the interest of a physician’s unease for merely referring a patient to another physician? In a free and democratic society can we really allow a physician’s personal objection to a referral to override a patient’s right to liberty?
If one is unable to separate their faith from their professional obligations, then perhaps it’s time to find another profession – or at least a medical specialty in which such conflicts of one’s faith versus patient care are ensured to be minimal, such as radiology or pathology. One has a right to practice their religion as they see fit, but nobody has an unfettered right to their profession, especially when one is demanding the profession be practiced in a way that tramples on the rights of others.
Author’s note: Supriya Dwivedi used to provide government relations and strategic communications counsel to Dying with Dignity Canada.
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