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Court says doctors must make referrals, despite religious objections

Constitutional challenge fails
|Written By Gabrielle Giroday
Court says doctors must make referrals, despite religious objections
Kelly Doctor says a Court of Appeal ruling shows that patients ‘should not have to bear the burden of managing the consequences that flow from a doctor’s religious objection.’

A ruling from the Court of Appeal for Ontario has upheld a lower court’s finding regarding whether doctors in Ontario must do referrals for patients who are seeking medical assistance for procedures where the doctors have religious objections.

The ruling in Christian Medical and Dental Society of Canada v. College of Physicians and Surgeons of Ontario was released May 15, and it upheld the findings of a Divisional Court decision from 2018.

The legal battle involved three religious medical groups and five individual doctors who had voiced concerns over two policies from the college over referrals for procedures such as abortion, tubal ligation, gender reassignment surgery and medical assistance in dying and questioned its constitutionality.

The policies required physicians who “object to providing certain medical procedures or pharmaceuticals on the basis of religion or conscience to provide the patient with an ‘effective referral,’” said the ruling. 

“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,’” said the ruling.

“The policies do 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 religious groups and doctors said to follow the policies would infringe their rights under s. 2 of the Canadian Charter of Rights and Freedoms.

The lower court had agreed that the s. 2 rights were infringed upon but that, under s. 1 of the Charter, the policies were justified as “reasonable limits.”

Ultimately, the Court of Appeal upheld the Divisional Court’s ruling, saying that the policies protect vulnerable people in need of help and that physicians should be mindful of the public interest of their roles.

“As the Divisional Court observed, the appellants have no common law, proprietary or constitutional right to practice medicine. As members of a regulated and publicly funded profession, they are subject to requirements that focus on the public interest, rather than their interests,” said the ruling.

“Even taking the burden imposed on physicians at its most onerous, as framed by the appellants, the salutary effects of the policies still outweigh the deleterious effects.”

Lisa Brownstone, chief legal officer of the College Physicians and Surgeons, and Ruth Ainsworth, college counsel, said in a joint statement to Law Times that the decision is a “victory for patients in Ontario.”

“The court has recognized the importance of ensuring patients get access to the care they need,” they said.

“The court noted the extensive expert and patient evidence establishing the harm that would result to vulnerable patients in the absence of the effective referral requirement, and that the policies represent a compromise; they are not the optimal solution for patients either.”

Eugene Meehan, a partner at Supreme Advocacy LLP in Ottawa, represented two of the religious groups and five of the doctors named in the ruling. Meehan says it’s “too early to decide” whether the matter will be appealed to the Supreme Court of Canada.

“On the one hand, the Court of Appeal did both recognize and affirm that religious freedom Charter rights are breached by these policies, yet on the other hand, they also held that in any physician [versus] patient context, the patient wins,” he says.

“The standard of review and framework to figure out whether the policies unreasonably limit Charter rights and freedoms is left ‘for another day’ — a fundamentally important issue for Charter litigation overall and yet to be decided,” he adds.

Kelly Doctor, a partner at Goldblatt Partners LLP in Toronto, acted as counsel for Dying with Dignity Canada, an intervener in the matter. In total, there were five organizations in the matter that intervened on behalf of the appellants and four that intervened in support of the college.

Doctor says the ruling illustrates that, when patients do not receive a proper referral, they can suffer effects such as shame and stigma or slower access to health care.

They may be unable to access the care they need, she says.

The ruling also shows that patients “should not have to bear the burden of managing the consequences that flow from a doctor’s religious objection,” she says.

“The court rejected the notion that handing a patient a brochure, phone number or website address and sending them out to navigate the health-care system on their own would be a sufficient substitute to an effective referral,” she says.

Karen Segal, staff counsel at the Women's Legal Education and Action Fund, who intervened in the matter, says the court’s decision “relies primarily on the finding that an effective referral is necessary for many patients to access health care.”

“It accepted that many women, particularly those [that] are the most marginalized, lack the skills, knowledge or resources to seek out health care on their own,” she says.

“Accordingly, denying a woman a referral for an abortion based on religious reasons could be tantamount to denying women access to that abortion altogether.”

Noa Mendelsohn Aviv, director of the equality program at the Canadian Civil Liberties Association, which also intervened in the matter, says the association supports the decision.

“[The decision] recognizes the important role doctors play in the lives of their patients and the compromise already represented by the policies, which do not require doctors to personally provide medical services to their patients in the case of a denial for religious reasons,” she says.

The decision acknowledged “the very sensitive nature of certain medical services” and “the historical stigmatization associated with these,” she says.

“[They] may make it particularly difficult for vulnerable groups such as women, girls [and] patients with financial, social, educational and other challenges to access these services and the importance, therefore, of an effective referral requirement,” she says.

Brian Gray, spokesman for the provincial Ministry of the Attorney General, had no comment, as the matter is still within the time period to seek leave to the SCC.

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