Doctors must provide ‘effective referrals’ for medical services they oppose on religious grounds: Christian Medical and Dental Society of Canada v. College of Physicians and Surgeons of Ontario, 2019 ONCA 393
Health Group, Christopher Goodridge and Matthew Jacobs
The Ontario Court of Appeal confirmed in a decision released on May 15, 2019 that doctors must provide an ‘effective referral’ where they are unwilling to provide care on moral or religious grounds. The appeal required the court to reconcile a patients’ access to medical services and a physicians’ freedom to refuse to participate in services which they have religious objections – conflicting individual liberties.
What is an effective referral?
An effective referral is defined as “a referral made in good faith, to a non-objecting, available, and accessible physician, other health-care professional, or agency.”¹
Ontario Superior Court Decision – January 31, 2018
The Ontario Superior Court upheld a College of Physician and Surgeon of Ontario’s policy on ‘effective referrals’. The policy required all physicians who object to providing medical treatment (such as assisted dying and abortion) to provide an effective referral, regardless of moral or religious beliefs. The policies did not require physicians to personally provide the services to which they object, except in an emergency where it is necessary to prevent imminent harm to a patient.
The appellants were individual physicians and organizations representing physicians in Ontario that challenged the policies on the ground that the effective referral requirements infringe their freedom of conscience and religion under s. 2(a) of the Canadian Charter of Rights and Freedoms because the requirements oblige them to be complicit in procedures that offend their religious beliefs. The appellants also claimed that the effective referral requirements discriminate against physicians based on their religions, thus infringing their s. 15(1) equality rights.
The Court found that while the policies infringe their freedom of religion, the infringement is justified under s. 1 of the Charter, because the policies are reasonable limits, demonstrably justified in a free and democratic society. The Divisional Court did not consider whether freedom of conscience is engaged. It dismissed the s. 15(1) claim in its entirety.
Ontario Court of Appeal – May 15, 2019
Ontario Court of Appeal upheld the decision of the Ontario Superior Court, affirming the constitutionality of the ‘effective referral’ requirements imposed on doctors by the Ontario College of Physicians and Surgeons. The ‘effective referral’ was found to be fundamental for the trust that must exist in the physician-patient relationship, physicians acting as navigators for health care services for their patients.
Strathy C.J., writing for the three judge panel, ruled unanimously that the s. 7 Charter protected right of patients in Ontario to equitable access to medical services outweighs a doctors’ freedom to refuse to participate in any way in services which conflict with their Charter protected religious view.
- The ruling reaffirms that in a publicly funded healthcare system, physicians are required to place the interests of their patients care ahead of their moral or religious values in the event of a conflict.
- This decision does not address hospitals or health authorities’ obligations to provide effective referrals. That said, health-care providers should be mindful of the courts insights in drafting their health-care service policies.
- Finally, while the decision does not change the position that the Charter does not provide any positive rights to health care, where the government has a system in place to provide specific health care services, it must comply with the Charter.
¹ Policy Statement #4-16, entitled “Medical Assistance in Dying”, refers to “nurse practitioner” in place of “other health-care professional
This update is intended for general information only. If you have questions about the above, please contact a member of our Health team.
Click here to subscribe to Stewart McKelvey Thought Leadership.
By Kimberly Bungay On April 1, 2023, the Nova Scotia government will proclaim into force Bill 226, which amends the Companies Act (the “Act”) to require companies formed under the Act to create and maintain…Read More
Abuse of sick leave / failure of employee to participate in accommodation process: Vail v. Oromocto (Town), 2022 CanLII 129486
By Chad Sullivan and Kathleen Starke Background A recent decision, Vail v. Oromocto (Town), 2022 CanLII 129486, involved several grievances including an unjust dismissal claim by a firefighter as well as a grievance filed by…Read More
By Stuart Wallace and Kim Walsh On January 1, 2022, the Underused Housing Tax Act (the Act) took effect. The Underused Housing Tax (the UHT) is an annual 1% tax on the value of vacant or…Read More
Parlez-Vous Francais? Recent amendments to Quebec’s Charter of the French Language may impact Atlantic Canadian businesses
By: David F. Slipp and Levi Parsche In May 2022, Bill 96 was adopted by Quebec’s National Assembly, significantly amending the Charter of the French Language (the “Charter“). The amendments create new requirements for using…Read More
The Winds of Change (Part 7): Paying the Piper: New Newfoundland and Labrador Fiscal Framework expects billions in revenues from wind to hydrogen projects
By Dave Randell, G. John Samms, and Stuart Wallace With the deadline for bids on crown lands available for wind energy projects extended to noon on March 23rd, the latest development in our Winds of…Read More
By Kevin Landry and Colton Smith The Retail Payment Activities Regulations have been released in the Canada Gazette Part 1 for comment. Interested persons may make representations concerning the proposed regulations for a period of 45…Read More
By Andrew Burke, Colleen Keyes, Gavin Stuttard and David Slipp With proxy season once again approaching, many public companies are in the midst of preparing their annual disclosure documents and shareholder materials for their annual…Read More
By Brittany Trafford and Sean Corscadden In response to the nationwide labour shortage, the Federal government is allowing select family members of foreign workers to apply for open work permits. This temporary policy came into…Read More
Mark Tector and Ben Currie Effective January 1, 2023, amendments to Ontario’s Employment Standards Act, 2000 (“ESA”) took effect, excluding “business consultants” and “information technology consultants” from the application of the ESA. This is a…Read More
By Perlene Morrison, K.C. and Curtis Doyle Once again, the time has come to review the year that was and to chart the course for the year ahead. For municipalities and planning professionals in Prince…Read More