March 26, 2018

Moral or religious objections and professional obligations

Administrative Law
Inquiry and Investigations
Professional Regulation

The standards of health care colleges may provide that professionals who refuse to provide specific kinds of care based on moral or religious grounds “must” provide patients with effective referrals to other health-care providers. Such standards may be in the form of binding bylaws or standards, or simply policies that establish minimum “expectations”. Based on the College of Physicians and Surgeons of Ontario publishing two “policy statements” requiring registrants to provide effective referrals, five registrants challenged their obligations to provide effective referrals, on the basis that their having to provide referrals for services that considered wrongful — services such as abortions, medical assistance in dying, or contraception for example — constituted complicity and violated their religious freedom. The Ontario Divisional Court decided, however, that while the policy statements infringed freedom of religion under the Charter, the infringements were justifiable: Christian Medical and Dental Society of Canada v. College of Physicians and Surgeons of Ontario2018 ONSC 579.

The policies that articulated referral requirements: At the core the dispute were two two policy statements of CPSO (the “Policies”). First, Policy Statement #2-15, entitled “Professional Obligations and Human Rights” (the “Human Rights Policy”, effective March 20, 2015) said that, “Where physicians are unwilling to provide certain elements of care for reasons of conscience or religion, an effective referral to another health-care provider must be provided to the patient.” (emphasis added) It further obligated physicians to provide care “in an emergency, where it is necessary to prevent imminent harm, even where that care conflicts with their conscience or religious beliefs.” A second policy, Policy Statement #4-16, entitled “Physician-Assisted Death” (the “MAiD Policy”, adopted June 21, 2016) said that, “Where a physician declines to provide medical assistance in dying for reasons of conscience or religion, the physician must not abandon the client. An effective referral must be provided.” (emphasis added)

Notably, the CPSO did not adopt the two policies as codes, standards or guidelines relating to standards of practice. Accordingly, action inconsistent with the policies would not amount to professional misconduct without a college discipline committee using the policies as evidence of professional standards, in order to determine that given action by a registrant amounted to misconduct. [29-30] But the court went on to decide that it could assess whether the policies infringed freedom of religion: “…while the Policies do not establish legally binding rules of professional misconduct and therefore do not provide any penalty for non-compliance, the more important consideration is that the Policies set broad expectations of physician behaviour and are intended to have normative force.” The court noted that the Policies “are expected to be persuasive in disciplinary hearings alleging professional misconduct.” Accordingly, although the policies were not “standards” in the sense of legally-binding rules enacted by the College, the College still intended that they express a minimum standard of professional conduct that the discipline committee was to apply.

The constitutional question, and the court’s assessment without any deference to the College: The court accepted that the challenges to the Policies were, in substance, applications for judicial review. [45] The court also held that the College had the power to adopt the Policies, based on its own interpretation of the Regulated Health Professions Act. Such a decision about the College’s power to adopt the policies was a matter for review on a standard of reasonableness. [75] The court decided however that it did not have to defer to the College on the question of the constitutionality of the Policies. The court declined to use the deferential approach the Supreme Court of Canada applied in the Doré case (Doré v. Barreau du Quebec, 2012 SCC 12, [2012] 1 S.C.R. 395), because the case did not involve a challenge to an adjudicative decision (e.g., by a discipline committee). The question was not whether an administrative decision-maker has exercised discretion in accordance with the Charter. The challenge was to the law itself, or in this case, the Policies. [59] Therefore, a standard “Oakes” test (R. v. Oakes, [1986] 1 S.C.R. 103) applied. The court had to determine if the Policies infringed freedom of religion, and if they did, whether the infringement was justifiable in a free and democratic society. Yet the court would still afford some deference to the College as part of deciding whether the measure of requiring referrals was proportional to the objective to be achieved.[62]

Infringement of a right or freedom: The court decided that the requirement of mandatory referrals did infringe freedom of religion. [87] The burden on religious registrants was not trivial. [85-114]

A justifiable infringement: The infringement on religious freedom was justifiable. First, the College’s objective that was sufficiently important to warrant overriding a constitutionally-protected right or freedom; that objective was the facilitation of patient access to health care services, so that the religious and conscientious objections  of physicians would not become a barrier to health care. [146] Second, the means chosen were reasonable and demonstrably justified.

(a) The referral provisions were rationally-connected to the objective of facilitating patient access to care. [154]

(b) The requirement for effective referrals minimally impaired the rights of the applicants. The court looked at the evidence of alternatives considered by the College which did not represent a less drastic means of achieving the objective of the Policies in a real and substantial manner. For example, the option of requiring “self-referral” by patients was insufficient for many reasons, including a disproportionate burden on vulnerable and marginalized groups. [168-169] The College concluded that alternative means to ensure a patient’s access to requested medical services would not be effective.

(c) In terms of proportionality, the virtues of a requirement for an effective referral avoids several kinds of harms to patients, e.g., emotional distress of a patient seeking an abortion of an unwanted pregnancy or medically-assisted death); loss of eligibility for a desired service due to passage of time (such as emergency contraception or an abortion procedure); a denial of care altogether (e.g., where a patient may lack the emotional or economic resources to find another physician); and the distress associated with the physician’s denial of the patient’s request for medical services (which may exacerbate feelings of shame or stigma so that a patient defers or losses the will to seek such services independently). [181-185] The burdens on objecting religious physicians [188] imposed by the effective referral requirements of the Policies are proportionate, give the positive effects associated with the requirements. [212] In assessing proportionality, the court considered both the Charter rights of patients to equitable access to medical services as part of the right of each individual to “life, liberty and security of the person”, [195] and the expectation that the privilege of practising is subject to protection of the public interest. [196]

In British Columbia: This decision of the Ontario Divisional Court indicates the likely lawfulness of standards requiring effective referrals, or similar active conduct, elsewhere in Canada. Applicable standards include, for example, the following standards in British Columbia:

  • CPSBC standard, “Access to Medical Care” states that while physicians may choose not to provide a treatment or procedure based on values or beliefs, “the College expects them to provide patients with enough information and assistance to allow them to make informed choices for themselves. This includes advising patients that other physicians may be available to see them, or suggesting that the patient visit an alternate health-care provider. Where needed, physicians must offer assistance and must not abandon the patiia:ent.”
  • CPSBC standard, “Medical Assistance in Dying” states that, “Physicians who object to MAiD on the basis of their values and beliefs are required to provide an effective transfer of care for their patients by advising patients that other physicians may be available to see them, suggesting the patient visit an alternative physician or service, and if authorized by the patient, transferring the medical records as required.”

Christian Medical and Dental Society of Canada v. College of Physicians and Surgeons of Ontario, 2018 ONSC 579

Lisa C. Fong and Michael Ng