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
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.
Bryan Mills and John Morse On May 21, 2019, the New Brunswick Labour and Employment Board (”Board”) dismissed an application by the New Brunswick Union of Public and Private Employees (“Union”) seeking certification as bargaining…Read More
Jonathan Coady and Justin Milne The Ontario Court of Appeal has found that the Greenhouse Gas Pollution Pricing Act¹ is valid federal legislation.² The Act implements national minimum pricing standards to reduce greenhouse gas (“GHG”) emissions.…Read More
Richard Niedermayer, TEP, Jennifer Taylor and Bhreagh Ross, summer student There is a right to testamentary freedom under section 7 of the Charter, according to a recent decision of the Nova Scotia Supreme Court. In…Read More
John Samms Introduction Much ink has been spilled on the controversial 1969 power contract between Hydro-Quebec and CFLCo (the contract) and last week the Quebec Court of Appeal added to the pile with its decision…Read More
Kevin Landry On June 14, 2019, Health Canada announced the release of the final version of amendments to the Cannabis Regulations, which will permit for the production and sale of edibles, extracts and topicals. The…Read More
We are pleased to present the fourth issue of Discovery, our very own legal publication targeted to educational institutions in Atlantic Canada. While springtime for universities and colleges signal the culmination of classes, new graduates…Read More
Grant Machum and Richard Jordan In an earlier article, we considered an employer’s options when an employee departs and takes with them the social media contacts they have obtained during the course of their…Read More
Matthew Jacobs and Daniel Roth (summer student) “… we cannot be a Blockbuster government serving a Netflix society.” – The Hon. Minister Navdeep Bains paraphrasing the Hon. Scott Brison (May 2019, at the Empire…Read More
Tauna Staniland, Andrea Shakespeare, Kimberly Bungay and Alycia Novacefski The federal government has introduced new record keeping requirements for private, federally formed corporations governed by the Canada Business Corporations Act (“CBCA”). The amendments to the…Read More