Ontario doctors challenge policy forcing referrals for medically assisted dying

Rules forcing Ontario doctors to offer medically assisted dying — or at least a timely referral — infringe on their constitutional right to object on conscientious or religious grounds, several physicians' groups told a divisional court tribunal this week.

Their lawyer is asking the tribunal for a judicial review of the College of Physicians and Surgeons of Ontario's (CPSO) recent policy on assisted dying, which requires doctors to perform an "effective referral."

But several groups including the Christian Medical and Dental Society of Canada, the Canadian Federation of Catholic Physicians' Societies and Canadian Physicians for Life, along with five individuals, are arguing the policy is the moral equivalent of offering the procedure themselves.

As of April, more than 365 patients in Ontario died using medical assistance since the practice became legal in Canada one year ago, in June 2016.

Freedom of conscience

"Doctors should have the right to exercise their freedom of conscience in deciding what treatment would be best for that patient," argued Ottawa psychiatrist Sephora Tang, one of 168 doctors who signed a letter informing the CPSO they won't abide by the policy.

She said it's not the goal of doctors who object to impede patients' access to medically assisted dying, but they don't want to be forced to provide it.

The president of the CPSO, Dr. Dave Roussell, said in an interview that the policy considers the issue from the perspective of the patient. 

"Is it not one of our fundamental precepts in medicine to not abandon our patients," said Roussell.

"And from the point of view of the patient, if they seek a service from a doctor, they shouldn't have to figure out where a doctor stands on this issue or that issue, they they should just be able to ask for a service."

Ontario only jurisdiction forcing referral

But Dr. Jim Lane, president of the Canadian Federation of Catholic Physicians' Societies, questions why Ontario is the only province to insist on the referral.

There's been many jurisdictions in the world that have approved assisted suicide, or euthanasia, but none of them have forced their doctors against their conscience to refer or perform these procedures.- Dr. Jim Lane, Canadian Federation of Catholic Physicians' Societies

"That's what's so bizarre about the whole thing," said Lane. "There's been many jurisdictions in the world that have approved assisted suicide, or euthanasia, but none of them have forced their doctors against their conscience to refer or perform these procedures."

Lane said other jurisdictions have managed to find ways to allow doctors who object to opt out without jeopardizing patients' access to care.

Lane's group is urging Ontario to create a coordination centre for referrals, like Alberta has done. That will take the onus off individual doctors, and avoid the moral hazard facing those opposed to referring cases.

But Roussell said that while many patients are able to help themselves, the policy is aimed at helping the most vulnerable, particularly palliative patients.

"A patient may need help navigating the system," he said. "In the case of medical assistance in dying it may be a frail, elderly, bedridden patient, perhaps in an institution, and there's no way that person is going to be able to navigate the system.

"And if the first doctor they ask turns them away, they may not be able to get access."

Roussell also disputes the claim that Ontario is the only province with a policy around referrals, pointing to Quebec's college, which requires doctors who object to connect patients seeking medically assisted death with a referral agency. And Nova Scotia's college requires a so-called effective transfer of care, "which sounds like a referral to me," he added.

Abortion referrals unnecessary

Trenton, Ont., family doctor Donato Gogliotta, another person who signed the letter and one of the five doctors attached to the court case, said the policy could also open a can of worms when it comes to abortion because it will force physicians who object for religious or moral reasons to refer patients, or risk censure from the college.

"For 30 years, there has been no problem with access for pregnant women who want to terminate their pregnancy, in spite of the fact that referrals were not necessary," said Gogliotta. "So this is a deviation from that tradition."

The broad nature of the policy is why religious organizations are keen to draw the legal line through this court case, according to Lane.

There are a number of intervenors acting on both sides of the case, including the Ontario Attorney General, intervening on the side of the college.

The divisional court will finish hearing the case Thursday before the tribunal retires to deliberate.