Advocating for Freedom & Equality in Health Care

On June 13-15 the Ontario Divisional Court heard oral arguments in the matter of Christian Medical and Dental Society et al v College of Physicians and Surgeons of Ontario. The case arose following the release of the respondent College’s policies on medical assistance in dying (MAID) and human rights obligations. The policies require that doctors who are unable to directly perform controversial procedures (such as euthanasia/assisted suicide and abortion due to conscientious or religious beliefs) must nevertheless facilitate such procedures by taking a number of positive steps to provide an “effective referral” to a willing and available physician.

In court, the applicants (the Christian Medical and Dental Society and a number of other faith-based physicians’ groups and individual health care professionals) argued that the policies violated physicians’ freedom of religion and equality rights under the Charter of Rights and Freedoms. The College, in its response, argued that the effective referral requirement represented a proportionate balancing between the rights of patients and physicians.

The applicants were represented by Christian Legal Fellowship member Albertos Polizogopoulos. Christian Legal Fellowship, the Evangelical Fellowship of Canada, the Assembly of Catholic Bishops of Ontario also intervened as a coalition to serve as friends of the court in support of the right to religious freedom, equality, and conscience in health care. The coalition was represented by CLF Legal Counsel Deina Warren and Executive Director & General Counsel Derek Ross. The coalition’s written arguments (factum) can be found here. Below are the arguments which formed the basis of the oral submissions presented by the coalition to the Divisional Court on June 15. The court has reserved its decision.


Introduction

Good morning Your Honours. My name is Deina Warren, and together with Mr. Derek Ross, Executive Director of Christian Legal Fellowship, we are counsel for a coalition of interveners: The Evangelical Fellowship of Canada, the Assembly of Catholic Bishops of Ontario, and Christian Legal Fellowship.

The EFC represents over 40 denominations and 100 organizations; the ACBO is the regional association of the Archbishops and Bishops of each of the 14 Archdioceses and Dioceses across Ontario and CLF is a national association of more than 650 lawyers, law students and others from more than 30 denominations. Together, this group of interveners represents a broad spectrum of Christian thought but fundamentally agree upon and advocate for maintaining space for religious individuals and religion within the public square and within the professions.

In the time we have been given we will briefly frame and identify the issue and then canvas three main points relating to:

  • The public interest
  • State neutrality
  • Religious equality

Identifying the Issues

Do doctors have to change their religious belief and conscientious convictions upon the release of every Supreme Court decision?

Do regulators have the ability to mandate - with statutory authority and punitive powers - that change in belief?

Or in the face of a refusal to change, can regulators oblige doctors to practice against the very core of their ethical and moral standards?

By virtue of its policies, the CPSO would seem to answer “yes” to those questions.

In this case the CPSO essentially asserts that it ought to be the sole moral arbiter about what is conscionable and unconscionable, what is ethical and unethical, what it means to live according to conscientious and/or religious conviction and what is in all patients’ best interests.

How?

By compelling doctors to facilitate acts they believe are morally, ethically, clinically and professionally objectionable.

By insisting that doctors participate in the process of assisted suicide.

By insisting that doctors set aside fundamental, bedrock principles that are thousands of years old - namely do no harm, and do not kill.

But this position, as expressed in the CPSO policies, does not reflect a proportionate balancing that minimally impairs the Charter rights of religious freedom, freedom of conscience and religious equality.

Far from minimally impairing, the CPSO Policies compel doctors to a course of action which they would not otherwise have chosen [Big M, p336].

The position of these interveners is that

  • The compulsion is neither justifiable nor necessary for any “public interest” reason
  • The compulsion runs afoul of state neutrality
  • The compulsion results in an unjustified violation of religious equality

The Compulsion is not Justified by Reference to the Public Interest

We defer to the Applicants’ position and argument on the proper scope of the CPSO’s statutory authority, but to the extent that the “public interest” is considered relevant, we submit compulsion is still unjustified, for several reasons.

Religious Freedom vs Public Interest

The public interest and the Charter rights of CPSO members are not two competing weights on opposite ends of the scale. However else it may be defined, the public interest is not inherently antithetical to, but must account for, religious freedom and religious equality as essential and inherent components of its meaning.

Section 2(a) rights in particular are the “absolutely necessary thing” of the political tradition underlying the Charter [Big M p 346] and represent the “hallmark of an enlightened and healthy democracy” [Amselem para 1]. They are “broad and jealously guarded” [Same- Sex Marriage Reference para 53]. These rights are not rendered void by virtue of the claimants practicing in a regulated profession. 

Protecting religious freedom and religious equality is, in itself, a social good that is beneficial to society (an idea we discuss further in our factum).

But beyond the inherent value of religious freedom and the necessity of its “broad and robust” protection in a free and democratic society, protecting religious freedom actually benefits patients.

Religious Freedom vs Patient Interests

Protecting religious freedom and religious equality has been invariably equated by the CPSO in this case with harming patients’ interests. But this characterization is problematic for a number of reasons.

First, it is difficult to comprehend how it could possibly be in the public interest to expect patients to receive health care from professionals who have been required by their regulatory body to abandon moral thought and conviction upon licensure. The coercive Policies ignore statements from organizations such as the Canadian Medical Association that it is “in a patient’s best interest and in the public interest for physicians to act as moral agents, and not as technicians or service providers devoid of moral judgment” [para 19 factum].

Second, the Policies betray an inherent assumption that all patients see their doctors and their medical care through the same lens as the CPSO. All patients’ interests should be taken into consideration, not just those who may seek assisted suicide and euthanasia. Patients are not a monolithic, uniform block.

As the CPSO points out a number of times in its facta, Ontario is a diverse, multi-faith society, and the medical profession ought to reflect that diversity. Having a diverse medical profession actually empowers and includes patients by allowing them to choose professionals whose beliefs and practices align with their own. It would be a grave mistake to assume that respecting and accommodating religious freedom is at odds with the best interests of patients.

Third, can we even be certain that assisted suicide is in a patient’s best interest? We submit this is not a closed debate. Arguably this court hearing is proof of that very fact. For those who believe it is in patients’ best interest, this viewpoint is reflected in the fact that assisted suicide is legal in certain circumstances and publicly funded. But just because something is legal does not mean it is advisable or recommended. The Federal Minister of Health [Philpott, news article LFPress March 27/17] recently echoed that very same sentiment in the context of marijuana. It bears repeating that just because something is legal does not mean it is advisable or recommended.  

Whether assisted suicide is actual, beneficial medical care and an appropriate medical solution to suffering is, like any medical treatment, a question to be determined by the medical community. And the medical community may disagree - just like there is disagreement on innumerable treatment options, diagnoses, prognoses and diagnostic tests. That does not justify a universal mandate of participation. By legalizing treatment but not mandating universal participation, the Supreme Court, Federal Parliament and other jurisdictions within our own borders have respected the autonomy of the medical profession, and the value and importance of protecting religious freedom.

They have also thereby acknowledged their own institutional limitations and adopted a posture of humility when it comes to what is fundamentally an existential, philosophical, and moral concern. The CPSO should be required to do the same.

Religious Freedom vs Patient Access

Lastly in terms of apparent conflicts, this case has been characterized as a conflict between religious freedom and patient access, but again, we respectfully submit this too is a false and superficial conflict.

First, there is no evidence that effective referrals are necessary to ensure access to assisted suicide, or other procedures/pharmaceuticals. Further, evidence from other jurisdictions shows that access can be effectively managed without effective referrals [para 23 factum]. There are options that are equally effective and minimally impairing of religious freedom, rights to conscience, and religious equality.

Second, this is not a case of two rights being in conflict - there is no right to demand assisted suicide be provided or facilitated by any one physician. We wish to highlight the Ontario Court of Appeal’s decision in R v Mernagh [paras 25-31 factum].

Mernagh held that when the blanket criminal prohibition against marijuana was struck down, allowing an exception for medical use, it did not create a “right to use” marijuana. Decriminalization did not translate into an obligation for doctors to ensure it is provided to every patient that asks for it, even where doctors are the sole gatekeepers to the marijuana.

Justice Doherty’s concurring reasons in Mernagh are particularly germane to this case.  He found that a doctor can refuse to provide the declarations necessary to access treatment for many reasons, including that the doctor “views the use of marihuana as medically contraindicated”; this alone suggests that a doctor’s ethically-informed clinical judgment is a sufficient reason not to participate in a regime. Furthermore, Justice Doherty held that although this non-participation “is certainly limiting the availability of the medical exemption”, the doctor’s “decision is not attributable to the government or any form of governmental action” and any “refusals based on the doctor’s exercise of his or her judgment are inherent” in the regime created by the legislature [Mernagh, para 147; factum para 31]

Additionally, the majority judgment noted, at para 88

[88]   In any event, evidence that a physician refused to sign a medical declaration for a patient who reported that marihuana relieved his or her symptoms is not, on its face, evidence of arbitrariness or bias.  Physicians have been fixed with the responsibility of being gatekeepers, but they remain bound by their own ethics and codes of conduct.

And at paras 114-115 that

[114] The final set of interveners go even further.  Appearing jointly, the Canadian AIDS Society, the Canadian HIV/AIDS Legal Network and the HIV & AIDS Legal Clinic Ontario argue that requiring patients to go to great lengths to get a physician to sign a medical declaration is arbitrary, unprincipled and not in accordance with the patients’ rights to procedural fairness.  Physicians, they submit, are acting as agents of the state under the MMAR and as such should be unbiased, give full consideration of the issue and provide written reasons.  They should not be able to avoid making a decision and their decisions should be subject to review.

[115] We do not accept this submission.  In our view, the MMAR require physicians to act as medical professionals and not quasi-judicial officials.

The Supreme Court and Parliament have similarly made medical oversight a constitutionally valid component of the Criminal Code exemption for assisted suicide. Thus, individual decisions, whether concerning participation in the scheme as a whole or decisions in respect of individual patients, cannot be said to render the exemption - or access to it - illusory. The very exercise of individual medical judgment is a component of the exemption created by Carter and Bill C-14.

The Compulsion Runs Afoul of State Neutrality

Even if this Court disagrees with our submission that compulsion is not justified by reference to the public interest or with our argument about the resolution of apparent conflicts, the fact remains that the compulsion runs afoul of state neutrality.

Requiring doctors to renounce, deny, hide or work in direct contradiction to their beliefs is not state neutrality but universal neutrality.

State neutrality does not mean that the CPSO can require neutrality of individuals to whom it issues licences;

it does not mean that the CPSO can mandate alignment with a particular belief before issuing a medical licence;

it does not mean that the CPSO can make professional discipline contingent on whether a doctors’ beliefs align with those of the CPSO.

And we submit it is clear that the CPSO in this case is professing belief. It is strongly adhering to faith in assisted suicide as a social good and requiring all of its members to make the same profession of faith.

But neutral states safeguard religious minorities by remaining neutral with respect to religious issues and by encouraging “everyone to participate freely in public life regardless of their beliefs” [Saguenay, para 75].

Neutral states respect religious differences, they do “not seek to extinguish them” [Loyola, para 45]

Neutral states do not seek to purge “religiously informed moral consciences from the public sphere” [NSBS para 19]

Neutral states do not create preferential space for people with atheistic beliefs [Saguenay, para 120]

Neutral states are “made up of diverse communities with disparate beliefs that cannot and need not be reconciled” and matters of policy must be adopted “in the context of making room for diverse communities to hold and act on their beliefs” [TWU v. LSBC CA para 185]

Neutral states must “admit of and accommodate differences” where citizens - doctors included - “are free to think, to disagree, to debate and to challenge the accepted view without fear of reprisal” within a free and democratic society [TWU v. LSBC CA para 193]

The very faith that has founded innumerable hospitals in this province is a holistic, undivided faith. The state cannot pick and choose the convictions of faith that suit its own purposes. It cannot embrace the belief that doctors ought to serve “the least of these” and jettison the belief that it is wrong to kill.

Neutral states do not compel doctors to violate their consciences and sincerely held religious beliefs, particularly when there are other ways to accomplish statutory objectives that minimally impair religious freedom and religious equality.

The Compulsion Violates Religious Equality

Perhaps because the CPSO and other parties fail to see an infringement of religious freedom that is more than trivial or insubstantial, the claim to section 15 equality rights has been summarily disregarded, with the CPSO going so far as to suggest that equality is not even a relevant claim [CPSO factum, para 160]. We submit it is relevant and not repetitious of section 2(a) freedom of religion and conscience claims because it applies a different test and asks different questions.

The test was outlined yesterday by Mr. Polizogopoulos so we won’t repeat it in detail, but the first part asks if there is a distinction based on, in this case, the enumerated ground of religion.

The Policies create a distinction between those who live and practice according to religious beliefs that require them to conscientiously object and those who do not.

The second part asks if the distinction creates disadvantage by perpetuating prejudice or stereotyping. Taken from the CPSO’s factum (POHR/499), here are some of the ways in which conscientious objectors - or the allowance for conscience objectors within the profession - are characterized:

  • Fail to align with the fundamental values of the profession [46]
  • Fail to respect patient autonomy and dignity [48]
  • Does not meet fiduciary duty to patients [48]
  • Conscientious objection results in adverse patient outcomes [51]
  • Conscientious objection results in suffering, deterioration, no access to care [51]
  • Don’t place priority on patients’ interests [58]
  • Undermine trust of doctor-patient relationship [58]
  • Abusing position of knowledge [59]
  • Failure to adhere to “patient-centered care” model [62]
  • Incapable of respecting patients’ wishes unless also accede to them [62]
  • Exacerbating position of vulnerable patients [65]
  • Breaches obligations of health advocate [66]
  • Undermine very goal of single-payer healthcare system [66]
  • Exacerbate barriers to care [79]
  • Results in devastating physical and emotional consequences for patients [81]
  • Contributes to patients’ sense of shame, exposure to moral judgment [84]
  • Not in accordance with majority views [100]
  • Undermines safe, reliable, professionally delivered medical services [130]
  • Do not practice in a manner consistent with standard of practice [130]
  • Only qualified for radiology or pathology [158]

Conscientious objectors are further accused of being obstructionist, and seeking to exploit “loopholes” to “impose” their own beliefs on patients [factum para 36]. It is prejudicial to characterize physicians with religiously founded conscientious conviction as having limited capacity as medical professionals because of those religious beliefs.

In addition to suffering such accusations and prejudice, these physicians are subject to potential disciplinary measures in ways that other physicians are not. While the CPSO suggests the Policies are not coercive, that they are without penalty built in, the Policies nonetheless inform discipline decisions. And frankly, it would be odd to so rigorously defend as necessary to the very functioning of the health system in Ontario these Policies if the intention were to leave them unenforced and dormant.

In this case, the very ability of religious physicians to practice medicine is at risk. The concerns about the logical outcome of this type of prejudice and stereotype are not unfounded. As referenced in our factum [para 37] there have already been calls to ban all doctors, medical students and potential medical students with conscientious objections from entering or remaining in practice. Where a rule bars an entire class of persons from certain forms of employment solely on the ground that they have a religiously-grounded moral framework discriminates against them on the ground of their personal characteristic.

This violation of religious equality cannot be justified in a free and democratic society - even if there is a pressing and substantial objective, and even if the Policies are rationally connected to the objective, they are not minimally impairing.

Conclusion

We return to the first questions we raised in our submissions: Do doctors have to change their religious belief and conscientious convictions upon the release of every Supreme Court decision? And can the CPSO compel citizens to either alter their convictions or give up their profession?

Every time a court renders something legal, it must be celebrated and actively facilitated by all, and those who disagree must be squeezed out of the public square - or at least that appears to be the CPSO’s interpretation of Carter and the de-criminalization of assisted suicide. This is fundamentally at odds with the notion of protecting religious freedom, the principle of state neutrality, and the right to religious equality and, we submit, cannot be justified.

Subject to any questions, those are our submissions. 


Representatives of the parties and counsel at the Divisional Court hearing of CMDS et al v. CPSO. Pictured L-R: Deina Warren (CLF Legal Counsel), Faye Sonier (ED & General Counsel, Canadian Physicians for Life), Albertos Polizogopoulos (Counsel for the applicants), Larry Worthen (CMDS Executive Director), Bruce Clemenger (EFC President), Derek Ross (CLF ED & General Counsel)

Representatives of the parties and counsel at the Divisional Court hearing of CMDS et al v. CPSO. Pictured L-R: Deina Warren (CLF Legal Counsel), Faye Sonier (ED & General Counsel, Canadian Physicians for Life), Albertos Polizogopoulos (Counsel for the applicants), Larry Worthen (CMDS Executive Director), Bruce Clemenger (EFC President), Derek Ross (CLF ED & General Counsel)