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
By Tauna Staniland, K.C., ICD.D, Joe Thorne, and Nadine Otten What can you do when your corporation wants to complete a complex transaction requiring significant corporate restructuring that cannot be easily completed under the corporation’s…
Read MoreStewart McKelvey is pleased to present Energy Watch – a review of key legislative and policy advancements in the renewable energy sector in 2023 in each of Newfoundland and Labrador, Nova Scotia and New Brunswick…
Read MoreWe are pleased to present Beyond the border: A year end immigration wrap-up. Compiled by Lawyers from our Immigration team, this 2023 update covers topics including the Government of Canada’s ambitious immigration plans for the future;…
Read MoreBy Perlene Morrison, K.C., Hilary Newman & Curtis Doyle Once again, the time has come to review the year that was and to chart the course for the year ahead. For municipalities and planning professionals…
Read MoreBy Dave Randell, John Samms & Jayna Green A recent Government of Newfoundland and Labrador (“GNL”) announcement affirms the Province’s swift and ambitious approach to offshore wind development. While it may come as a shock…
Read MoreBy Sadira Jan, Dave Randell, Graham Haynes & Tyler Callahan On November 30, 2023, the Federal Government tabled Bill C-59, entitled An Act to implement certain provisions of the fall economic statement tabled in Parliament…
Read MoreBy Brendan Sheridan The Government of Canada has continued their whirlwind year of immigration program announcements by revealing their plan to modernize and improve the country’s immigration system. This plan, known as “An Immigration System…
Read MoreBy Christine Pound, ICD.D, Rebecca Saturley, & Daniel Roth Canada’s anti-modern slavery legislation comes into force on January 1, 2024. To prepare for the first reporting deadline on May 31, 2024, organizations need to determine…
Read MoreBy Brian Johnston, K.C. and Richard Jordan On November 9, 2023, Minister of Labour, Seamus O’Regan, introduced Bill C-58 in the House of Commons to amend the Canada Labour Code to prohibit the use of…
Read MoreBy Kevin Landry & Eryka Gregory The Retail Payment Activities Regulations (“Regulations”) under the Retail Payment Activities Act (“RPAA”) were finalized and published in the Canada Gazette Part II on November 23, 2023. The RPAA was…
Read More