The Catholic Civil Rights League (CCRL) is pleased to provide this submission to the College of Physicians and Surgeons of Ontario (CPSO) regarding the revised and approved draft policy Professional Obligations and Human Rights. We strongly advocate for a robust understanding and protection of the Charter right of freedom of conscience and religion for all Canadians, and indeed physicians in the daily routine of their care to patients and in the overall forming of their individual medical practices. The CCRL therefore rejects the proposed mandate for an “effective referral” as it is a breach of a physician’s rights and a serious incursion into the professional standing of a physician.
We previously provided a submission in August of 2014, when external consultation was sought regarding proposed changes to Physicians and the Ontario Human Rights Code. In 2008, we raised similar concerns in that consultative process. We are as adamant with our concerns today as we were seven years ago. Doctors and other health care professionals, indeed all Canadians, enjoy the Charter right of freedom of conscience and religion. A proper balancing of the rights of physicians with the concept of patient autonomy must not result in the trumping of the rights of physicians in their medical practices. Such rights extend not only to refusing to perform morally objectionable services, but the right not to be obliged to refer to other practitioners who may be willing to provide such services. This clearly would constitute participation in wrong. The proposed mandate for an “effective referral” must be rejected.
Lines 156-159 are wholly unacceptable to the CCRL:
Where physicians are unwilling to provide certain elements of care due to their moral or religious beliefs, an effective referral to another health care provider must be provided to the patient. An effective referral means a referral made in good faith, to a non-objecting, available, and accessible physician or other health-care provider.
The CCRL appeals to the Executive Committee and Council to strike from this policy the necessity to “provide an effective referral”. This is an unacceptable inclusion, an unnecessary and unwanted change from the 2008 policy. Compelling a physician to provide an effective referral to another physician or health-care provider in order to carry out a procedure to which he or she objects on the grounds of conscience or religion also compels the physician to violate his or her own conscience by being a participant in the very act, the very procedure to which he or she objects in the first place.
The current CPSO policy also states that:
The balancing of rights must be done in context. In relation to freedom of religion specifically, courts will consider how directly the act in question interferes with a core religious belief. Courts will seek to determine whether the act interferes with the religious belief in a ‘manner that is more than trivial or insubstantial.’ The less direct the impact on a religious belief, the less likely courts are to find that freedom of religion is infringed.
The CCRL submits that issues pertaining to the sanctity of life from conception until natural death is a core Catholic belief. There is also a growing body of medical research which has questioned in recent years the merits of artificial birth control, and the further risks to women from abortion. A Catholic physician is entitled in conscience to avoid providing artificial contraception or abortifacients, or procuring an abortion unless the mother’s life is in imminent threat. In the event that Canada adopts a regime of physician assisted suicide, the threat to conscientious objection is that much greater. We assure the CPSO that under no circumstances would any of the aforementioned practices be considered ‘trivial or insubstantial’.
The CCRL further submits that there are numerous procedures which may violate good medicine, or violate the consciences of many other physicians belonging to other religions or those holding sincere beliefs, religious or otherwise. The point is that despite our mandate to educate the public and defend and promote the Catholic perspective, we at the CCRL nonetheless submit that a physician must have the right to carry out their duties in line with their consciences, period. Neither the College nor the courts determine what comprises religious belief and to what extent acts may or may not interfere. Once the sincerity of religious belief is understood, neither the College or courts should interfere in a delineation of what the particular faith may prescribe. It is far more logical to simply respect physicians’ consciences as has been the case in Ontario with the policy in place since 2008. The compulsion to effectively refer violates this right of freedom of conscience and religion and there is no reason to institute the need to provide an effective referral, whether it is on the grounds of access to care, or on any other grounds.
Regarding the ‘balancing of rights’ referred to by the CPSO, the CCRL believes that the current status quo in Ontario maintains this balance between the Charter rights of conscience and religion with the concept of patient autonomy. Using the previous listed examples of practices that would be morally objectionable to a serious Catholic physician, consider that the number of said physicians is minute in comparison to those who would have no objection whatsoever. If a lack of balance exists, it is surely found in the vast difference between physicians who choose to conscientiously dissent versus those who do not. This difference is so great that it cannot be objectively stated that a member of the public in Ontario would have their rights to autonomy violated by any physician following the 2008 CPSO policy.
With this submission, we at the CCRL call upon the CPSO’s Executive Committee and Council to reject the mandate for “effective referrals”. The medical profession, as with any grouping of individuals is not truly free to live and free to grow if its members are not able to govern their actions in accordance with their individual consciences, whether informed by moral and religious beliefs or otherwise.
Canada is a pluralist society, and an authentic pluralism recognizes that there will be differences in the public sphere, and that we live with such differences in a civil society. The proposed CPSO policy engages in a trumping exercise, mandating that a patient’s autonomy trumps recognized conscientious and religious rights of physicians. The demand for acceptance of a regime of “effective referral” of morally objectionable practices would lead to patients losing trust in the professional status of doctors. There is also the likelihood of numerous physicians opposing the new proposed policy and their refusal to comply, generating unwarranted complaints and possible exits from the jurisdiction. The extent of potential disruption is unknown, but greater instability would certainly follow in the provision of medical services. Ontario can ill afford such a tearing of the social fabric of our society. The better alternative is to accept that we are respectful of differences, especially when they concern aspects of one’s moral or religious beliefs, in no way trivial, but rather as the basis of a well-developed civil society.
For more information, please contact:
Christian Domenic Elia, PhD
Catholic Civil Rights League (CCRL)