Physicians Cannot Opt Out of College’s Effective Referral Policies for MAID

Physicians in Ontario will not be able to opt-out of the College of Physicians and Surgeons of Ontario (College or CPSO) effective referral policies for medical assistance in dying, among other health services, according to a ruling in a constitutional challenge launched by objecting physicians. The Divisional Court’s decision in The Christian Medical and Dental Society of Canada v College of Physicians and Surgeons of Ontario[1]  continues constitutional jurisprudence that limits the religious freedom of those providing funded services through the public sector.

This decision is a result of hearing together two applications – one of which challenged the College’s effective referral and emergency provisions in its human rights policy,[2] and another which challenged the College’s effective referral provision in its medical assistance in dying policy (“MAID”). [3]  Both applications challenged the constitutionality of those policies based on s. 2(a) and s. 15(1) of the Charter. 

The court swiftly dismissed the applicants’ s.15 challenges, finding they were not properly claims of discrimination under s.15(1). Also, the s. 2 challenge to the emergency provisions was dismissed. Those provisions do not apply to the CPSO’s MAID policy. The court declined to make findings in a factual vacuum. There was no evidence of deleterious effects. In fact, none of the individual applicants led evidence that they would decline to perform a procedure they generally objected to in the face of imminent harm to a patient. However, anticipating an appeal, the court conducted the section 1 analysis and found that the provisions represent a reasonable limit on religious freedom. Thus, the balance of this article reviews only the s. 2(a) challenge to the human rights and MAID policies.

The court first considered the framework for analysis and concluded that the Oakes framework applied because the challenges were not in respect of an administrative adjudicative decision. The applications asked the court to assess a particular “law” for Charter compliance. Thus the court had to consider principles of general application rather than a specific fact set of an administrative law decision. The court also concluded that the standard of review is correctness, rejecting the CPSO’s urging of a reasonableness standard.

The court then continued its analysis of whether the policies are ultra vires.[4] It rejected a narrow interpretation of the RHPA. The court found that the Act gives the College “ample authority” to enact policies that address patient dignity and access to health care and that the CPSO is obligated to guide its members on Charter compliance.

In conducting the s.2(a) analysis, the court found that the policies infringe on the applicants’ Charter rights and that the infringement is not trivial or insubstantial. The lack of penalties does not diminish the infringement as the policies’ normative force and moral suasion in disciplinary hearings engage the Charter.

The court found that the Oakes test applied, as the policies establish limits prescribed by law and the objectives are pressing and substantial. The court then found that the policies are rationally connected to the objective of equitable access to health services. Notably, the court accepted that physicians are gatekeepers in a public health care system and that many patients may not be able to benefit from another access point. The minimal impairment test was found to be satisfied as the policies fall within a range of reasonable alternatives. The court reviewed the alternatives considered by the CPSO and those proposed by the applicants. It agreed with the CPSO that self-referral alternatives would not meet the goal of equitable access. The applicants’ failure to acknowledge patients’ Charter rights to equal access to publicly funded health care services was fatal to them in this step, as their alternatives focused not on the objective, but on opting out. 

The court then engaged in the proportionality analysis and found that the limit on objecting physicians imposed by the effective referral policies is justified under s.1 of the Charter. The court underscored that equitable access to healthcare is an important social goal that should not be compromised or sacrificed. In the court’s opinion, the evidence indicated that, without the effective referral policies, equal access to health services would be impeded for vulnerable persons. The court further considered the effects on objecting physicians. It concluded that while the substantial burden of changing their specialty, nature or location of practice may be the answer for some, in the end, none would be effectively precluded from practicing medicine in accordance with their beliefs.  The conflict between patient rights and physician rights must be balanced in the context of the environment in which doctors practice medicine in Ontario. Where the conflict cannot be reconciled by the policies, the policies must prevail.

Takeaways:

• Equal access to publicly funded health care is a fundamental right under s. 7 pursuant to the jurisprudence on patient dignity, and is not in conflict with the fact that there is no freestanding constitutional right to health care.
• College members do not have an absolute right to unfettered practice of religious belief when it impacts the rights of patients to access publicly funded care.
• Colleges have the authority pursuant to the RHPA to enact policies in the public interest and which guide their members on Charter compliance with respect to equitable access to health care services.
• When balancing members’ interests with the public interest, policy objectives must be clearly defined and connected to the means chosen.
• A lack of penalties for non-compliance with policies will not act to minimize the impairment on objecting college members entirely, particularly if the policies are intended to have a normative force.
• Physicians and in particular, medical residents, should consider where and how they will practice and in what specialty, in order to adjust their practice to college expectations, if they hold beliefs that they cannot reconcile with particular health care services.