Last fall, our blog reviewed the decision of the Ontario Divisional Court, wherein they decided the constitutionality of two policies implemented by the College of Physicians & Surgeons (CPSO). The two policies were known as the Human Rights Policy and the MAID policy. They require physicians to make active referrals to patients who seek an abortion, reproductive health services or medical assistance in dying. The appellant physicians, however, do not wish to do so based upon their religious beliefs. They would prefer to have no involvement or responsibility in any of these medical services.
The policies did not require the physicians to provide any such care, except in emergencies, but did require them to make a valid referral which is one made in good faith, to a non-objecting, available and accessible physician or another service capable and competent to deliver the care requested. It was this step, the requirement to make the referral, that was being challenged based on their rights to freedom of conscience and religion. Their beliefs were such that the referral itself made them complicit in the actual treatment or acts performed by other physicians.
The appellant physicians were not successful with the Divisional Court. Although the policies were found to infringe their freedom of religion, this effect was held to be justified under section 1 of the Charter as being within reasonable limits. The physicians appealed the decision to the Ontario Court of Appeal (ONCA).
The issues before the ONCA were as follows:
(1) What is the applicable standard of review and is the Doré/Loyola framework or the Oakes framework applicable to this case?
(2) Do the effective referral requirements of the Policies infringe the appellants’ s. 2(a) freedom of conscience and religion?
(3) Do the effective referral requirements of the Policies infringe the appellants’ s. 15(1) equality rights?
(4) If there is an infringement of the appellants’ Charter rights and/or freedoms, is it justified under s. 1 of the Charter?
The physicians agreed with the Divisional Court that the correct standard of review was correctness based on the Oakes framework. The CPSO advanced the reasonableness standard and the Doré/Loyola framework. This decision was one of law, and therefore the ONCA would review it with the correctness standard. In the end, the issue was moot in that the result was unaffected by the standard of review chosen.
There was a consensus that the physician's beliefs were sincere and that the policies did interfere with those beliefs. The CPSO, however, again took the position that the interference was trivial or insubstantial. The ONCA held it was an interference beyond the superficial. These beliefs were durable and of such magnitude that the act of referring made them complicit in the actual treatment.
The ONCA agreed with the ONSC and stated:
I would not give effect to the appellants’ submissions, largely for the reasons given by the Divisional Court at paras. 128-31. As the Divisional Court stated, the Policies represent an attempt to balance equitable access to health care with physicians’ religious beliefs. The Policies, as clarified by the Fact Sheet, provide an appropriate balance for many physicians. Physicians who do not regard the procedures set out in the Fact Sheet as acceptable can transition to other areas of medicine in which these issues of faith or conscience are less likely to arise, if at all.
This was the central issue in the appeal. As the policies did infringe a protected right, the CPSO had to establish that they, the policies, were a reasonable limitation of those rights. The tests to determine this are those set out by the SCC in Oakes as follows:
The proportionality test examines whether the means are designed to further the objective. The ONCA agreed with the Divisional Court that they did do so, and promoted equitable access to health care.
The CPSO then had to show that the policies infringed religious freedom as little as reasonably possible. The physicians felt that there was a more straightforward way to achieve the same goal through information models. The ONCA disagreed. The issues of concern are all very personal matters to the patients seeking such types of care. The requests are also often time sensitive. Actual harm does not need to be proven by the CPSO. Perceived harm was apparent and enough in the circumstances.
As for a lesser impairing means, the ONCA concluded that the Divisional Court was correct in concluding that the policies were the appropriate and best means of ensuring access to these services.
We will continue to follow developments in this matter and will provide updates as they become available. In the meantime, if you have questions about this case, MAID, or any other related issue, contact the knowledgeable health law lawyers at Wise Health Law.
We provide exceptional guidance on health law matters to regulated health professionals, regulated health professional associations, public hospitals, and other health-care organizations across the province. We monitor trends and developments in health so that we can provide consistently forward-thinking legal and risk management advice to our clients. Contact us online, or at 416-915-4234 for a consultation.
The Chief Medical Officer of Health for Ontario has issued an updated Directive #2 (dated May 26, 2020) for Regulated Health Professionals in the province.
Pursuant to the updated Directive #2, all deferred non-essential and elective services by health care providers may be gradually restarted – subject to the rest of the requirements set out in the Directive.
The updated Directive #2 does not provide particularly detailed guidance to health professionals on how to proceed, likely because it applies to such a broad spectrum of health care and health professionals. It does, however, provide some principles to assist health care providers in making decisions as we enter this transitional period.
In addition to the mask and hand sanitizer shortages, Ontario’s response to COVID-19 highlights the need for more frontline health care workers. Each regulated health profession’s college responded differently, and we have discussed some of those changes in other posts to keep you apprised.
Today, we focus on the College of Physicians and Surgeons of Ontario (CPSO), who set out to increase the number of available and licenced physicians out on the frontlines through certificates of registration that authorize supervised practice of short duration. The temporary licences authorize practice for 30 days.
Undoubtedly, COVID-19 has affected how health professionals practice. Pharmacists across the country are not only experiencing changes in how they practice (for example, accepting emailed prescriptions, where appropriate) but the scope of their practice as well. The latter change is not permanent, although the disruptions in practice may be felt long after the COVID-19 emergency subsides.
On March 19, 2020, Health Canada issued a short-term section 56(1) exemption under the Controlled Drugs and Substances Act (CDSA) that would authorize pharmacists to prescribe, sell, or provide controlled substances in limited circumstances, or transfer prescriptions for controlled substances (the CDSA Exemption).