2008 Summer-Fall - A peer-reviewed article from an Issue of the Academic Journal "Fidelitas" of The Fellowship of Catholic Scholars
Physicians and the Ontario Human Rights Code
Joanne McGarry
Joanne McGarry was the executive director of the Catholic Civil Rights League (ccrl.ca).
On Sept. 17, the governing council of the College of Physicians and Surgeons of Ontario approved the policy Physicians and the Ontario Human Rights Code. The meeting attracted a large number of guests from the media, special interest organizations and the public, and forceful discussion of moral and philosophical issues from the floor.
The policy is the result of a draft circulated for discussion among doctors and interested members of the public, input by the Ontario Human Rights Commission (OHRC) and professional bodies, revision and voting. Impetus for the policy came from the OHRC, which encouraged the college to develop guidelines to help them meet anti-discrimination requirements of the Ontario Human Rights Code. Reaction from doctors and the public led to significant improvements in the policy, though some concerns remain.
Documents referred to in this article can be found in their entirety on the websites of the College of Physicians and Surgeons of Ontario (www.cpso.on.ca) or the Ontario Human Rights Commission (www.ohrc.on.ca)
In June, 2008 Council released the draft Physicians and the Ontario Human Rights Code policy for consultation. The draft policy laid out physicians’ existing obligations under the Ontario Human Rights Code, and the college’s expectations. The ORHC encouraged the adoption of a policy in light of recent changes to the processing of human rights complaints in Ontario, which will see all such complaints go straight to the Ontario Human Rights Tribunal, without screening by the commission. This change is expected to lead to a ten-fold increase in the tribunal’s caseload, by the commission’s own estimate. The OHRC also claimed there had been complaints of discriminatory treatment of patients by doctors, but gave no examples.
The draft review process was targeted for complaints by doctors as well as many others who complained that the time frame – barely more than six weeks, mostly during the summer vacation period – was inadequate, especially given the serious nature of the subject matter. There were also concerns that little publicity had surrounded the issue of the draft. Tireless work by individual doctors helped alert the public to the potential for serious infringement on their right to freedom of religion and freedom of conscience. The deadline was extended into September in response to these concerns.
Part of the both the drafts and final document concerns the obligation to accommodate disabilities. These guidelines raise few, if any, religious or conscientious concerns. Clauses addressing freedom of religion and freedom of conscience directly, however, raised numerous red flags about the right of a doctor to refuse to participate in morally contentious procedures, either directly or by referring patients to others. Such procedures might include prescriptions for certain birth control methods, abortion or fertility treatments. From the outset, the OHRC was emphatic that the rights of the patient
must come before any religious or conscientious objections the physician may have. The college, in its first draft, noted that there may be situations where religious and conscientious beliefs of the physician have to be put aside in order to provide appropriate care, and that failure to abide by the Code could constitute professional misconduct. This was not enough, however, for the OHRC.
Consider these passages from the OHRC’s reply, issued Aug. 15:
We note that some of the language in the first two paragraphs of “Contravention of the Code” (top of page 5), while aiming to address the complexity of situations in which rights are said to be competing or in conflict, inadvertently downplays the significance of refusal to provide service as prima facie discrimination (emphasis added). The use of the word “may” (“...may be acting contrary to the Code...”) and the fact that it is italicized are of particular concern. We also suggest that reference to the complexity of legal analysis in such cases, the importance of case-specific context, and the general principles set out in the subsequent bullet points, may be more helpful to physicians than indication that the law is “unclear.”
We therefore recommend that the second and third sentences under “Contravention of the Code” be replaced with the following:
Therefore, a physician’s refusal to provide a service or accept a patient on the basis of a prohibited ground, such as sex or sexual orientation, is prima facie discrimination, even if the refusal is based on the physician’s moral or religious belief.[5] This means that the physician could be subject to a human rights complaint, in which a Tribunal or Court would then assess:
whether the physician’s actions can be justified as bona fide and are therefore not in violation of the Code, and
whether there are genuine competing rights claims, and, if so, how the rights of the parties may appropriately be balanced.
Courts balance these complex claims based on the particulars of each case. The College is therefore unable to advise physicians how the Courts will decide cases where they must balance the rights of physicians with those of their patients.
The commission was making the point rather clearly that if a physician’s decision is based on a prohibited ground, thedecision alone will be considered discriminatory and could land the practitioner before the tribunal. In fact, a doctor who refuses to sterilize a healthy 25 year old who believes he will never want children has made what most people would regard as a sound medical decision. In a strict sense, it is also discrimination on the basis of age and gender and as such could become the focus of a human rights tribunal case. Should any still think that professional discretion and a degree of common sense would prevail, the commission had a few more observations about the balance of freedom of religion vs. individual rights.
We also suggest that addition of the following points would be of assistance to physicians in weighing these matters:
As plainly stated by the Supreme Court of Canada in the Trinity Western decision, a line may be drawn between belief and conduct, and “...the freedom to hold beliefs is broader than the freedom to act on them.” Human rights protections are to be interpreted broadly, while defences for discrimination are interpreted narrowly. It is the Commission’s position that doctors, as providers of services that are not religious in nature, must essentially “check their personal views at the door” in providing medical care.
“Check their personal views at the door”? No other professionals are expected to put aside religious beliefs, or at any rate not explicitly. Certainly a physician’s direct responsibility in life and health decisions is unique, and many doctors and other health care professionals undertake the work precisely because their religious beliefs inspire them to serve others.
The teaching of the Church about religious freedom for professionals, and the particular need for Catholic doctors to bear witness to their faith in their work, was articulated in EvangeliumVitae, Chapter 74: “Christians, like all people of good will, are called upon under grave obligation of conscience not to cooperate formally in practices which, even if permitted by civil legislation, are contrary to God's law. Indeed, from the moral standpoint, it is never licit to cooperate formally in evil. Such cooperation occurs when an action, either by its very nature or by the form it takes in a concrete situation, can be defined as a direct participation in an act against innocent human life or a sharing in the immoral intention of the person committing it. This cooperation can never be justified either by invoking respect for the freedom of others or by appealing to the fact that civil law permits it or requires it. Each individual in fact has moral responsibility for the acts which he personally performs; no one can be exempted from this responsibility, and on the basis of it everyone will be judged by God himself (cf. Rom 2:6; 14:12).
“To refuse to take part in committing an injustice is not only a moral duty; it is also a basic human right... In this sense, the opportunity to refuse to take part in the phases of consultation, preparation and execution of these acts against life should be guaranteed to physicians, health-care personnel, and directors of hospitals, clinics and convalescent facilities. Those who have recourse to conscientious objection must be protected not only from legal penalties but also from any negative effects on the legal, disciplinary, financial and professional plane.”
Unfortunately, referral is the one area where questions remain in the final policy. Though it is now clear that doctors are free to refuse direct participation in morally objectionable procedures, the policy notes that “when physicians feel they cannot provide a service for moral or religious reasons, they must advise patients or individuals who wish to become patients that they can see another physician with whom they can discuss their situation and in some circumstances, help the patient or individual make arrangements to do so.” The fact that such circumstances were left vague may be a positive sign.
The fact that CPSO policy was improved via public input does not mean that the underlying problem- state apparatus encroaching on religious freedom, to be blunt – has been solved. A poll taken by the college during the review process found that 85 per cent of respondents said physicians should not be able to refuse to provide a medical service because the service conflicts with their moral or religious beliefs, and 91 per cent said they should be required to provide patients with a referral. As the college noted in its briefing notes, these survey results differ significantly from feedback received from the public during consultation.
Several professional organizations indicated they approved of the original guidelines. These groups included the College of Physiotherapists of Ontario and Canadian Medical Protective Association. The College of Physicians and Surgeons of Manitoba provided positive feedback, and indicated that it has been dealing with similar issues and may amend its Discrimination in Access to Physicians Policy to accord with the Ontario draft. As of this writing, the College of Physicians and Surgeons of Alberta (CPSA) is carrying out a consultation regarding its “Standards of Practice” policy. Given increased pressures in recent years for liberalizing Canada’s laws on euthanasia and physician assisted suicide, it is imperative that physicians and other medical professionals have the clearly- stated right to religious and conscientious objection.
Under the current guidelines of the Ontario Medical Association, doctors can refuse to prescribe birth control pills, and refuse to participate in referrals for this and various other contentious procedures, provided patients are provided with a clear letter to this effect when they join the practice. This system appears to be working well. Certainly the commission did not cite a single case of a complaint by a patient, or a situation where a problem could not be resolved.
It is imperative that Catholics, and Canadians in general, become more aware of how human rights protections can be misused to discriminate, especially against people of faith. Without some hard work by doctors in circulating these drafts among medical and religious freedom organizations and the media, it’s quite possible the most problematic portions would have become policy.
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