Doctors challenge Ontario policy requiring referral for services that clash with morals

The debate over Ontario doctors' right to refuse to provide medical services that clash with their moral or religious beliefs is headed to court.

A group of five doctors and three professional organizations is challenging a policy issued by the College of Physicians and Surgeons of Ontario that requires doctors who have a moral objection to the treatment sought by a patient to refer them to another medical professional who can provide the service.

The group — which includes the Christian Medical and Dental Society of Canada, the Canadian Federation of Catholic Physicians' Societies and Canadian Physicians for Life — says the policy contravenes doctors' right to freedom of religion and conscience under the Charter of Rights and Freedoms.

It wants the court to immediately strike down the part of the policy that requires a referral "made in good faith, to a non-objecting, available and accessible physician, other health-care professional or agency."

Policy established in 2015

The college, meanwhile, argues the two-year-old policy is meant to prevent harm to the public and ensure access to care while recognizing that individual doctors may be morally opposed to some treatments and procedures.

It says compelling doctors to refer patients seeking an abortion, contraception or medically assisted death — services among those deemed problematic by the group — to another doctor is not the same as forcing them to participate in that particular treatment.

"At its core, the human rights application calls upon the court to consider whether the self-governing body regulating Ontario's 40,000 physicians can set professional expectations for its members even though some physicians may see those expectations as implicating their Charter rights," the college said in court documents filed ahead of Tuesday's hearing.

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"It is the college's position that not only can it do so, it should do so, in furtherance of its duty to regulate the practice of medicine in the interest of Ontario's large and diverse patient population."

The college says allowing doctors to simply refuse certain services without a referral can cause harm to patients, particularly those seeking help with sexual health, where stigma and embarrassment already pose significant barriers.

"Physicians' means of communicating their objections may mean that patients do not receive accurate or objective medical information about services," it says in the documents.

Patients, particularly those from vulnerable communities, "can also be harmed by the moral judgment and stigmatization that a physician's refusal to assist communicates to patients," it says.

Changing treatments

It also says the list of treatments and procedures that doctors may object to is long and continuously changing, and sometimes has more to do with the characteristics of the patient than the service itself.

The group argues there is no evidence that allowing doctors to opt out of certain services without offering a referral has harmed anyone.

"Contrary to the respondent's efforts to characterize it as such, this case is not about women's rights, LGBT rights, homeless rights, refugee rights, mental health rights or addicts' rights," it says in court documents.

"This case is about whether the government can compel physicians to violate their consciences and their sincerely held religious beliefs," either directly or indirectly through a referral, it says.

It specifically points to policy as it applies to medically assisted dying, saying it "forces the applicants and other physicians to be complicit in the taking of human life."

The policy was established in 2015 under the guidance of a working group and was subjected to external consultations, which the college says it took into consideration. It says the working group weighed other options, such as having patients refer themselves, but found those wouldn't achieve equitable and reasonable access to treatment.

The referral, it says, doesn't have to be in writing and can de delegated to office staff.

The court is expected to hear arguments from both sides over three days and give its ruling at a later date.