Ontario doctors who have a moral or religious objection to treatments such as assisted dying, contraception or abortions must refer patients to another doctor who can provide the service, after a court found it is necessary to guarantee that vulnerable patients can access the care they need.
A group of five doctors and three professional organizations had launched a legal challenge against a policy issued by the province鈥檚 medical regulator, arguing it infringed on their right to freedom of religion and conscience under the Charter of Rights and Freedoms.
The group 鈥� which includes the Christian Medical and Dental Society of Canada, the Canadian Federation of Catholic Physicians鈥� Societies and Canadian Physicians for Life 鈥� said the requirement for a referral amounted to being forced to take part in the treatment.
The College of Physicians and Surgeons of Ontario, meanwhile, said its policy aims to balance the moral beliefs of individual physicians while nonetheless ensuring access to care, particularly for vulnerable patients.
In a ruling released Wednesday, the divisional court said that though the policy does limit doctors鈥� religious freedom, the breach is justified. The benefits to the public outweigh the cost to doctors, who can choose to practise a specialty where such moral dilemmas will not arise, the court said.
鈥淭he goal of ensuring access to health care, in particular equitable access to health care, is pressing and substantial. The effective referral requirements of the policies are rationally connected to the goal,鈥� Justice Herman J. Wilton-Siegel wrote on behalf of a three-member panel.
鈥淭he requirements impair the individual applicants鈥� right of religious freedom as little as reasonably possible in order to achieve the goal.鈥�
What鈥檚 more, the court found, 鈥渢he applicants do not have a common law right or a property right to practise medicine, much less a constitutionally protected right.鈥�
鈥淭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,鈥� Wilton-Siegel wrote.
The groups said they were disappointed with the ruling and would review their options in regards to an appeal.
鈥淲e 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鈥檛 be able to live with themselves or stay in the profession if effective referral is still required,鈥� Larry Worthen, executive director of the Christian Medical and Dental Society of Canada, said in a statement.
The college and its supporters welcomed the decision, calling it a victory for patients.
鈥淲e believe the effective referral policy strikes a fair, sensible balance between a physician鈥檚 right to conscience or moral objection and a patient鈥檚 right to care. We are grateful that the judges鈥� decision puts patients first,鈥� said Shanaaz Gokool, CEO of the advocacy group Dying With Dignity, which was an intervener in the case.
But some observers said the court didn鈥檛 go far enough to safeguard patients鈥� rights to receive care.
Udo Schuklenk, a bioethicist at Queen鈥檚 University in Kingston, Ont., called the ruling a 鈥渃lassic Canadian compromise鈥� and said it failed to consider whether the accommodation was warranted.
Protections for conscientious objectors are valuable in situations such as military conscription, but have no place in a profession such as medicine, in which people participate voluntarily, he said. Some countries, such as Sweden and Finland, make no allowances for moral objections in medicine, he said.
If physicians are allowed to bypass treatments such as abortions or contraception 鈥� which patients have a legal right to obtain 鈥� by simply giving a referral, it paves the way for them to bow out of other services down the line, he said.
鈥淲ith future developments in medicine, we will never be able to predict what the latest thing is that somebody will object to do,鈥� he said.
The referral system can also put great strain on the health-care system, he said. If, for example, a patient seeks medically assisted death in a remote community and no one there will provide it, it falls on taxpayers to pay for another physician to travel there, he said.
The college鈥檚 policy was established in 2015 under the guidance of a working group and was subjected to external consultations. It said the referral doesn鈥檛 have to be in writing and can de delegated to office staff.
Paola Loriggio, The Canadian Press
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