Last year, we blogged about a group of five doctors and several Ontario physicians’ groups, who filed a court challenge against the College of Physicians and Surgeons of Ontario’s (CPSO) policy on effective referral for assisted dying. The groups, which included the Christian Medical and Dental Society of Canada, the Canadian Federation of Catholic Physicians’ Societies and Canadian Physicians for Life claimed that the policy forces doctors to offer medical assistance in dying (MAID) or a timely referral in lieu of MAID, and that this infringes on their constitutional right to object on conscientious or religious grounds.

In a decision released yesterday, a panel of three Ontario Superior Court judges found that the CPSO policy is constitutional and is designed to protect patients who request MAID and ensure that they are not abandoned by physicians who oppose it.

The CPSO’s Position

Throughout the challenge, CPSO stood behind its policy, arguing that it aims to balance the moral beliefs of individual physicians while guaranteeing access to care, especially for the most vulnerable patients. The goal of the CPSO policy is to:

…protect the public, prevent harm to patients and facilitate access to care for patients in our multicultural, multi-faith society, by guiding all physicians on how to uphold their professional and ethical obligations of non-abandonment and of patient-centred care within the context of Ontario’s public health-care system.

The CPSO’s defence of patient’s access to MAID was backed by several intervening parties including the Attorney General of Ontario and Dying with Dignity Canada.

The Decision

A panel of three judges ruled in favour of the CPSO, noting that although the policy does limit individual doctors’ religious freedom, this breach is justified as the benefits to the public at large outweigh the cost to the doctors who are free to choose a specialty where they will not encounter such moral dilemmas.

Writing on behalf of the three-member panel, Justice Herman J. Wilton-Siegel stated:

The requirements impair the individual applicants’ right of religious freedom as little as reasonably possible in order to achieve the goal.

In addition, the court noted:

…the applicants do not have a common law right or a property right to practise medicine, much less a constitutionally protected right…[t]hose who enjoy the benefits of a licence to practise a regulated profession must expect to be subject to regulatory requirements that focus on the public interest, rather than the interests of the professionals themselves.

The court also emphasized the importance of access to healthcare:

The evidence in the record establishes a real risk of a deprivation of equitable access to health care, particularly on the part of the more vulnerable members of our society, in absence of the effective referral requirements of the policy.

Reactions to the Decision

The groups who filed the challenge said they were “disappointed” with the ruling and will be reviewing their options for appealing the decision.

Larry Worthen, the executive director of the Christian Medical and Dental Society said:

We heard from our members and other doctors with conscientious objections over and over again that they felt referral made them complicit and that they wouldn’t be able to live with themselves or stay in the profession if effective referral is still required.

CPSO President, Dr. Steven Bodley, welcomed the decision, noting:

This is a win for vulnerable patients. We are pleased that the Court affirmed our concern that the alternatives proposed by the Applicants would compromise the goal of ensuring access to healthcare, in many situations, often involving vulnerable members of our society.

Dying with Dignity Canada has called the decision “a victory for patient’s rights”. Shanaaz Gokool, the the organization’s CEO noted that:

We believe the effective referral policy strikes a fair, sensible balance between a physician’s right to conscience or moral objection and a patient’s right to care. We are grateful that the judges’ decision puts patients first

Udo Schuklenk, a bioethicist at Queen’s University, called the ruling a “classic Canadian compromise” but is concerned that the court has not gone far enough to safeguard patients’ rights. He notes that while protections for conscientious objectors may be warranted in situations such as military conscription, they have no place in a profession like medicine, where people choose to join the profession. Indeed, some countries, such as Finland and Sweden, do not allow for moral objections in medicine. Schuklenk warns of a slippery slope: if physicians are allowed to bypass certain treatments that may raise moral issues, such as abortions or MAID, which patients have a legal right to obtain, they might choose not to offer other services down the road:

With future developments in medicine, we will never be able to predict what the latest thing is that somebody will object to do

We will continue to follow developments in this matter and will provide updates as they become available.

At Wise Health Law, we are passionate about helping healthcare organizations, regulated health professionals, and regulated health professional associations understand and protect their legal rights. We follow developments in the law and are consistently at the forefront of change and innovation. For the convenience of our clients, we have offices in both Toronto and Oakville, Ontario, and are easily accessible. Contact us online, or at 416-915-4234 for a consultation.

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