By MIKE MANNO
On the last day of January the Superior Court of Justice for Ontario unanimously held that policies promulgated by the College of Physicians and Surgeons of Ontario (CPSO) requiring doctors to either provide suicide assistance for patients, or refer them to another doctor that will, trumped the religious rights of the doctors.
After the adoption of the policies, it wasn’t long before a collation of several Christian medical groups and several individual providers filed suit, alleging that the policies violated the Canadian Charter of Rights and Freedoms.
“I find that the objective of the Policies is of sufficient importance to warrant overriding the Individual Applicants’ rights of religious freedom,” wrote Justice Herman J. Wilton-Siegel for himself and two other members of the court.
“It is important in this context to note that there is no constitutionally protected right to practice medicine,” the court wrote.
At issue were policies adopted by CPSO, the governing body for the Ontario medical profession, which stated, “Where physicians are unwilling to provide certain elements of care for reasons of conscience or religion, 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.”
Additionally, the emergency provision in the rules stated, “Physicians must provide care in an emergency, where it is necessary to prevent imminent harm even where that care conflicts with their conscience or religious beliefs” (emphasis mine).
In short, the policies required doctors to refer abortion patients and those wishing physician assisted suicide to other physicians or, in an emergency, perform the requested service themselves. Compliance or non-compliance with the policies can be used to determine if a particular medical provider has committed professional misconduct:
“[W]hile the Policies do not establish legally binding rules of professional misconduct and therefore do not provide any penalty for non-compliance, the more important consideration is that the Policies set broad expectations of physician behavior and are intended to have normative force. . . . [They] are expected to be persuasive in disciplinary hearings alleging professional misconduct. The Policies thereby engage a constitutional question of law that is of general importance — the appropriate balance between the right of religious freedom or equality rights of a medical professional and the right of patients to equitable access to health care,” wrote the court.
After a discussion of the respective rights of the parties, Justice Wilton-Siegel found that the “Policies infringe on the rights of religious freedom” of physicians.
However, the court then considered CPSO’s arguments in favor of the policy: First, the policies were adopted in a “professional sphere” within the context of a regulated practice; second, the act of referral is not the equivalent of participation in a disapproved procedure; third, a referral is not an endorsement of the procedure; fourth, there is no legal coercion for a physician to comply since there is no built-in penalty for non-compliance; and finally, since the challengers have told the court that they will not comply with the policies and compromise their religious beliefs, there is no “chilling effect” on their religious preferences.
The court, now sweeping aside the religious freedom argument, opined: “[The] Policies represent an attempt to take into account the actual circumstances of religious physicians. An important feature of the effective referral requirement…is that they represent an effort to balance the rights of patients to access health care…with the rights of physicians whose religious convictions treat…certain medical services as immoral or sinful….The fact that this accommodation does not go far enough for the Applicants does not detract from this reality.”
And it described the challenge to the policy as “a claim to be free to practice medicine unfettered and in accordance with their religious practices, not a claim to be free from religious discrimination.”
Then the court rationalized, “I find that the objective of the policies is of sufficient importance to warrant overriding the Individual Applicants’ rights of religious freedom.” Finally, “Accordingly, I conclude that the effective referral requirements of the Policies are rationally connected to the goal of the Policies of ensuring access to health-care services in Ontario, and, in particular, to the goal of ensuring equitable access to such medical services.”
The court also upheld the provisions of the emergency rule which require physicians to provide services for emergency contraception and abortion. It noted that there are some procedures in which there is a limited time frame for medical intervention to be successful. “Delay may mean that patients become ineligible to access the care they seek and require more complicated and risker inventions such as surgical abortions.”
Summarizing, the court concluded, “Applicants do not have a common law right or a property right to practice medicine. . . . Rather, a license to practice medicine is granted by statute subject to regulation pursuant to the principles set out [by law]. These statutes grant the CPSO the authority to regulate physicians with a view to, among other things, protecting the public interest. . . . In this case, physicians are assumed to accept this authority of the CPSO, including the authority of the CPSO to address the requirements of professionalism in the practice of medicine.”
“It would appear that, for these physicians, the principal, if not the only, means of addressing their concerns would be a change in the nature of their practice if they intend to continue practicing medicine in Ontario.”
The reaction to the ruling was swift. Dr. Ryan Wilson, president of the Canadian Physicians for Life, said in a statement:
“This is a disappointing decision and puts our doctors — doctors who entered the field of medicine to provide quality, compassionate, and patient-centered care — in an impossible position. They don’t believe ending a patient’s life is medicine, and they don’t believe they can offer hope and healing in one room while assisting in killing a patient in another. Ultimately it is patient care that suffers, as our doctors will retire early, relocate, or change fields. For many, their religious and conscience rights are being violated and they won’t be able to practice medicine in Ontario.”
Alex Schadenberg, executive director of the Canadian-based Euthanasia Prevention Coalition, has reported that last year his nation experienced a massive push to normalize euthanasia, including physician-assisted suicide. The number of reported deaths in Canada suggests that his country may soon be competing with Belgium and the Netherlands as one of the worst killing nations.
And in the United States the Patients’ Rights Council reports that the American Nurses Association has adopted a position that supports allowing the stopping of eating and drinking. The refusal of food and water is a practice used to hasten death in several countries where physician prescribed death is outlawed.
The effort to promote assisted suicide is a worldwide movement, part of the culture of death. We’ll be dealing with this in future columns.
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