Noa Mendelsohn Aviv
Director of Equality Program
Doctors in Ontario will not be required to personally perform abortions, medical assistance in dying, or other healthcare services if the denial is based on the doctors’ religious beliefs – but they must provide an effective referral. This decision by the Ontario Court of Appeal today represents an important victory for the rights of patients who need reproductive healthcare, the right to die with dignity, and other stigmatized medical services.
The effective referral requirement states that doctors who deny a patient a service must, in good faith, ensure their patient is directed to a “non-objecting, available and accessible physician.” But it gets even easier than this. The doctors do not have to provide the referral themselves. All they must do is appoint someone in their office who can do so, and all that person has to do is find an agency (and one now exists in Ontario) that can find the healthcare service for the patient.
This “effective referral” requirement is part of two Policies of Ontario’s College of Physicians and Surgeons. And it was this requirement that was upheld by the Ontario Court of Appeal today. CCLA had intervened in the case arguing for the Charter rights of patients, and it welcomes this decision.
CCLA had argued that while both parties’ Charter rights were implicated, the Policies struck the correct balance in ensuring that important, Charter-protected medical services were accessible to patients.
Certain religious doctors had objected to the effective referral requirement, claiming that in their religious view, providing an effective referral would make them an accessory to and complicit in acts that violate their religious beliefs.
The College of Physicians and Surgeons together with several interveners including CCLA had argued that the Policies struck a reasonable balance between the religious freedom of doctors, and the rights of patients to access medical services. The Court agreed, noting the vulnerability of many patients, the very sensitive nature of certain medical services – such as abortion, birth control, transition-related services for transgender patients such as gender reassignment surgery, and medical assistance in dying – and the historical stigmatization associated with these. All of this may make it particularly difficult for vulnerable groups such as pregnant women and girls, patients with financial, social, educational, geographic and other challenges to access these services.
As such, without an effective referral requirement, patients may not be able to access these healthcare services at all. This, CCLA had argued, would constitute a serious violation of their fundamental right to human dignity, personal autonomy and privacy.
Today’s decision recognizes the important role doctors play in the lives of their patients, in particular those who are vulnerable. The normal rule, when doctors face difficult ethical questions, requires doctors to place their patient’s interests first. The Policies, however, do not force doctors to personally provide the healthcare that their patients need. This is already a significant compromise of patients’ interests. In the result, the Court found, requiring a compromise of doctors who deny these services, by asking them to provide an effective referral (which they can do through a third party and an agency), strikes a reasonable balance between the interests of doctors and patients.