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.
Key takeaways
- 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.
Archive
Peter McLellan, QC and Level Chan On November 29, 2017, the Nova Scotia Department of Finance and Treasury Board released new regulations with respect to asset transfers between pension plans that are effective November 28, 2017.…
Read MoreRick Dunlop and Kevin Landry The federal government has opened its 60-day consultation period with the release of its Proposed Approach to the Regulation of Cannabis. The paper outlines a potential regulatory framework which could…
Read MoreJosie Marks and Lara Greenough As 2017 comes to a close, please find below a summary of significant 2017 legislative amendments in each of the Atlantic Canadian provinces as well as federally, along with a…
Read MoreBrian Johnston, QC and Julia Parent In response to the report of the House of Commons committee on pay equity, the federal Liberal government announced its intention to bring in legislation to better ensure that…
Read MorePaul Smith and Dante Manna On November 14, 2017, Bill 22, also known as the proposed Pooled Registered Pension Plan Act (the “NB Act”), was introduced in the New Brunswick Legislature. If passed, New Brunswick…
Read MoreAndrew Burke and Kevin Landry The Toronto Stock Exchange (“TSX”) has made two recent changes to the TSX Company Manual that will impact disclosure: A. It introduced a requirement for many corporate listed issuers to…
Read MoreJennifer Taylor There is a role for social justice in statutory interpretation, according to the Nova Scotia Court of Appeal in the recent decision of Sparks v Nova Scotia (Assistance Appeal Board). This case is…
Read MoreKevin Landry and Jamie Watson New Brunswick’s proposed cannabis regulatory scheme has been introduced. An initial press release was followed by the introduction of amendments to the New Brunswick Liquor Control Act, and the Motor…
Read MorePeter McLellan, QC & Level Chan In September 2017, Nova Scotia’s Department of Finance and Treasury Board announced that stakeholder input is being sought regarding potential permanent changes to the funding framework for defined benefit…
Read MoreAndrew Burke & Divya Subramanian Securities markets around the world are grappling with new concerns: As fintechs make cryptocurrency offerings such as Initial Coin Offerings (ICOs), Initial Token Offerings (ITOs) or other digital token offerings,…
Read More