Court challenge raises issue of “reasonable apprehension of bias”

Sean Murphy*

Documents filed in an important Canadian court case bring into question the value and purpose of “public consultations” held by medical regulators, at least in the province of Ontario.

In March, 2015, the College of Physicians and Surgeons of Ontario (CPSO) approved a highly controversial policy, Professional Obligations and Human Rights.  The policy requires physicians  to facilitate services or procedures to which they object for reasons of conscience by making an “effective referral” to a colleague or agency willing to provide the service.  A constitutional challenge to the policy was dismissed by  the Ontario Divisonal Court in 2018.[1] An appeal of that ruling will be heard by the Ontario Court of Appeal on January 21-22, 2019.

Among the thousands of pages filed with the trial court are a number dealing with the public consultation conducted by the CPSO from 10 December, 2014 to 20 February, 2015.  In response to its invitation to stakeholders and the public, the CPSO received 9,262 submissions about the proposal, the great majority of which opposed it.[2]

College officials  finalized the wording of the policy on 19 January, 2015,[3]   a month before the consultation ended; only about 565 submissions would have been received by then.[4]  727 submissions had been received  by the time the policy was sent to the Executive Committee on 28 January,[5]  which promptly endorsed it and forwarded it to the College Council for final approval.[6]

According to the briefing note supplied to the Council, by 11 February, 2015 the College had received 3,105 submissions.[7]  Thus, the final version of the policy was written and approved by the College Executive before about  90% of the submissions in the second consultation had been received.

Submissions received by CPSO from 10 Dec 2014 to 20 Feb 2015

During the first 40 days ending 11 February, the College received an average of about 18 submissions per day.  Assuming someone spent eight full hours every working day reading the submissions, about 22 minutes could have been devoted to each.  Three staff members dedicated to the task could have inceased this average to about an hour, so the first 700 submissions could conceivably have received appropriate attention.

Time available for analysis of submissions

However, this seems unlikely in the case of more than 8,000 submissions received later.

By 11 February about 183 submissions were arriving at the College every day, increasing to about 684 daily in the last ten days of the consultation – one every two minutes.   A College staffer working eight hours daily without a break could have spent no more than about two minutes on each submission, and only about one minute on each of those received in the last ten days  – over 65% of the total.

A minute or two was likely sufficient if College officials deemed consultation results irrelevant because they had already decided the outcome.  This conclusion is consistent with the finalization and approval of the policy  by the six member College Executive (which included the Chair of the  working group that wrote it [8]).  To do this weeks before the consultation closed was contrary to normal practice.  CPSO policy manager Andréa Foti stated that working groups submit revised drafts to the Executive Committee  after public consultations close[9] – not before.

One would expect government agencies that invite submissions on important legal and public policy issues would allow sufficient time to review and analyse all of the feedback received before making decisions. The CPSO’s failure to do so does not reflect institutional respect for thousands of individuals and groups who responded in good faith to its invitation to comment on the draft policy.  Rather, such conduct invites a reasonable apprehension of bias that is unacceptable in the administration of public institutions.

1. The Christian Medical and Dental Society of Canada v. College of Physicians and Surgeons of Ontario, 2018 ONSC 579 (Can LII)  [CMDS v CPSO].

2. CMDS v CPSO, supra note 1  (Respondent’s Application Record, Volume 1, Tab 1, Affidavit of Andréa Foti [Foti] at para 121.

3.    Foti, supra note 2 at para 133.

4. Estimated daily average based on the total received by 28 January (727).

5. CMDS v CPSO, supra note 1  (Respondent’s Application Record, Volume 4, Tab WW, Exhibit “WW” attached to the Affidavit of Andréa Foti: Executive Committee Briefing Note (February, 2015) (CPSO Exhibit WW) at 1724.

6. CMDS v CPSO, supra note 1  (Respondent’s Application Record, Volume 4, Tab XX, Exhibit “XX” attached to the Affidavit of Andréa Foti: Proceedings of the Executive Committee – Minutes – 3 February, 2015) (CPSO Exhibit XX) at 1746-1748.

7. “Council Briefing Note: Professional Obligations and Human Rights – Consultation Report & Revised Draft Policy (For Decision)” [CPSO Briefing Note 2015].  In College of Physicians and Surgeons of Ontario, “Annual Meeting of Council, March 6, 2015” at 61.

8. Dr. Marc Gabel. See CPSO Exhibit WW, supra note 4 at 1722 (note 1), and CPSO Exhibit XX, supra note 5 at 1746.

9. Foti, supra note 2 at para 36.

An effective referral is still a referral

Sanasi Jayawardena, Alexandra A Majerski

We are writing to respond to Dr. Steven Bodley’s letter: “Just the Facts on Effective Referral.” . . . The College of Physicians and Surgeons of Ontario’s (CPSO’s) effective referral policy for MAiD does not go far enough in protecting the religious freedom of physicians. . . It is unfortunate that the CPSO does not acknowledge that the provision of an “indirect” referral still renders the referring physician complicit. . . . medical students training in Ontario must now seriously consider taking their skills and talents to another province or jurisdiction in which they can practice their vocation in a manner that upholds their integrity. . . [Full Text]

Thousands step up in support of doctors’ conscience fight

The Catholic Register

Michael Swan

An Ontario campaign to pressure politicians over the protection of health care conscience rights is “democracy in action,” said an organizer.

The Coalition of HealthCARE has so far collected 19,000 names and e-mail addresses in its “Call for Conscience Campaign.” That does not include results from the Archdiocese of Toronto.

The non-partisan campaign was launched to oppose and raise awareness about regulations that force doctors to refer for assisted suicide and euthanasia against their moral convictions.

By the end of March, people who have signed up during the campaign should receive instructions about how to e-mail all the candidates in their ridings in the run-up to Ontario’s June 7 provincial election. . . [Full text]

The courts keep inventing new rights, turning our Charter on its head

National Post
Reproduced with permission

John Carpay

If I told you that I wanted to rob a home or store, would you sell me a gun? Presumably not. But what about giving me the name and contact info of another person who is willing to sell me a gun? If you wanted to avoid any participation in my planned robbery, you would refuse to provide a referral.

When it comes to female genital mutilation (the cutting and removal of some or all of a young girl’s external genitalia) the College of Physicians and Surgeons of Ontario (CPSO) recognizes that referring is as bad as providing. The CPSO prohibits this practice, common in many African and Middle Eastern countries. Female genital mutilation causes infection, disease and death in many girls, and life-long health problems for millions of women.

The CPSO policy prohibits physicians from performing, and from referring for, female genital mutilation procedures. Both performing and referring constitute professional misconduct. The reasoning is obvious. If mutilating a girl is wrong, then it’s also wrong to provide a referral for this barbaric procedure.

College of Physicians and Surgeons of Ontario in Toronto, Ont. on Tuesday April 9, 2013.

Sadly, the CPSO abandoned this common-sense approach in the case of Christian Medical and Dental Society vs. CPSO. This court case was about a challenge to the CPSO policy requiring all doctors in Ontario to provide referrals for abortion, assisted suicide, and other medical procedures which some doctors view as harmful to patients and morally wrong. In court the CPSO argued that “a referral is neither an endorsement of the service for which the referral is provided, nor a guarantee that it will be provided.” The CPSO argued that providing a referral is trivial and insignificant, so a doctor would not be violating her conscience when referring a patient for a procedure that the doctor considers harmful. If the CPSO’s courtroom arguments are true, then why prohibit referring for female genital mutilation?

The Ontario Superior Court of Justice ruled that the CPSO policy violates the Charter freedom of religion and conscience, but then justified this violation as necessary to ensure “equitable” access to health-care services.

Abortion and assisted suicide are both legal medical procedures. Plenty of doctors are available to provide the one, the other, or both. Having to ask two, three or more doctors for a particular medical service is inconvenient for patients, to be sure.

But does the Charter provide citizens with a legal right to be free from inconvenience? Beyond a bald declaration, the court provides no explanation as to how or why being inconvenienced is a violation of the Charter. Nor does the court explain why it is necessary to force every single doctor in Ontario to provide referrals for abortion and assisted suicide. In other words, even if many doctors refuse to provide referrals for these services, the public would still have ready access to both.

The purpose of the Charter is to protect citizens from government. For example, the Charter should protect health-care workers (and everyone else) from being pressured or coerced by a government body to do what one believes to be wrong.

Conversely, there is no Charter right to force another human being to provide a service that runs contrary to their conscience. Interactions between citizens should be free from coercion. A patient’s power to compel a doctor to do what the doctor believes to be harmful is as destructive as a doctor’s power to compel a patient to do what the patient believes to be harmful.

The doctors who challenged the CPSO policy were not merely asking the court to be spared an inconvenience. Rather, an Ontario doctor who refuses to violate her conscience risks expulsion from the medical profession.

In upholding the CPSO policy, the court confuses fundamental Charter freedoms with personal interests and desires. The court has dismissed the Charter’s protection from government coercion as less important than a newly invented “right” to compel our fellow citizens (in this case doctors) to do what we want them to do. The court has turned the Charter on its head.

Lawyer John Carpay is president of the Justice Centre for Constitutional Freedoms (Jccf.ca), which intervened in Christian Medical and Dental Society of Canada vs. College of Physicians and Surgeons of Ontario.

 

Obliged to Kill

The Assault on Medical Conscience

The Weekly Standard
Reproduced with permission

Wesley J. Smith*

A court in Ontario, Canada, has ruled that a patient’s desire to be euthanized trumps a doctor’s conscientious objection. Doctors there now face the cruel choice between complicity in what they consider a grievous wrong – killing a sick or disabled patient – and the very real prospect of legal or professional sanction.

A little background: In 2015, the Supreme Court of Canada conjured a right to lethal-injection euthanasia for anyone with a medically diagnosable condition that causes irremediable suffering – as defined by the patient. No matter if palliative interventions could significantly reduce painful symptoms, if the patient would rather die, it’s the patient’s right to be killed. Parliament then kowtowed to the court and legalized euthanasia across Canada. Since each province administers the country’s socialized single-payer health-care system within its bounds, each provincial parliament also passed laws to accommodate euthanasia’s legalization.

Not surprisingly, that raised the thorny question of what is often called “medical conscience,” most acutely for Christian doctors as well as those who take seriously the Hippocratic oath, which prohibits doctors from participating in a patient’s suicide. These conscientious objectors demanded the right not to kill patients or to be obliged to “refer” patients to a doctor who will. Most provinces accommodated dissenting doctors by creating lists of practitioners willing to participate in what is euphemistically termed MAID (medical assistance in dying).

But Ontario refused that accommodation. Instead, its euthanasia law requires physicians asked by a legally qualified patient either to do the deed personally or make an “effective referral” to a “non-objecting available and accessible physician, nurse practitioner, or agency .  .  . in a timely manner.”

A group of physicians sued to be exempted from the requirement, arguing rightly that the euthanize-or-refer requirement is a violation of their Charter-protected right (akin to a constitutional right) to “freedom of conscience and religion.”

Unfortunately, the reviewing court acknowledged that while forced referral does indeed “infringe the rights of religious freedom .  .  . guaranteed under the Charter,” this enumerated right must nonetheless take a back seat to the court-invented right of “equitable access to such medical services as are legally available in Ontario,” which the court deemed a “natural corollary of the right of each individual to life, liberty, and the security of the person.” Penumbras, meet emanations.

And if physicians don’t want to commit what they consider a cardinal sin, being complicit in a homicide? The court bluntly ruled: “It would appear that, for these [objecting] 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.” In other words, a Catholic oncologist with years of advanced training and experience should stop treating cancer patients and become a podiatrist. (An appeal is expected.)

This isn’t just about Canada. Powerful political and professional forces are pushing to impose the same policy here. The ACLU has repeatedly sued Catholic hospitals for refusing to violate the church’s moral teaching around issues such as abortion and sterilization. Prominent bioethicists have argued in the world’s most prestigious medical and bioethical professional journals that doctors have no right to refuse to provide lawful but morally contentious medical procedures unless they procure another doctor willing to do as requested. Indeed, the eminent doctor and ethicist Ezekiel Emanuel argued in a coauthored piece published by the New England Journal of Medicine that every physician is ethically required to participate in a patient’s legal medical request if the service is not controversial among the professional establishment—explicitly including abortion. If doctors don’t like it? Ezekiel was as blunt as the Canadian court:

Health care professionals who are unwilling to accept these limits have two choices: select an area of medicine, such as radiology, that will not put them in situations that conflict with their personal morality or, if there is no such area, leave the profession.

For now, federal law generally supports medical conscience by prohibiting medical employers from discriminating against professionals who refuse to participate in abortion and other controversial medical services. But the law requires administrative enforcement in disputes rather than permitting an individual cause of action in civil court. That has been a problem in recent years. The Obama administration, clearly hostile to the free exercise of religion in the context of health care, was not viewed by pro-life and orthodox Christian doctors as a reliable or enthusiastic upholder of medical conscience.

The Trump administration has been changing course to actively support medical conscience. The Department of Health and Human Services recently announced the formation of a new Conscience and Religious Freedom Division in the HHS Office for Civil Rights, which would shift emphasis toward rigorous defense of medical conscience rights.

Critics have objected belligerently. The New York Times editorialized that the new emphasis could lead to “grim consequences” for patients—including, ludicrously, the denial by religious doctors of “breast exams or pap smears.”

The American College of Obstetricians and Gynecologists joined the Physicians for Reproductive Health to decry the creation of the new office – which, remember, is merely dedicated to improving the enforcement of existing law – warning darkly that the proposal “could embolden some providers and institutions to discriminate against patients based on the patient’s health care decisions.”

The Massachusetts Medical Society joined the fearmongering chorus, opining that the new office could allow doctors to shirk their “responsibility to heal the sick.” Not to be outdone in the paranoia department, People for the American Way worried the new office might mean that “other staff like translators also refuse to serve patients, which could heighten disparities in health care for non-English-speaking patients.”

The Ontario court ruling is a harbinger of our public policy future. Judging by the apocalyptic reaction against the formation of the Conscience and Religious Freedom Division, powerful domestic social and political forces want to do here what the Ontario court ruling – if it sticks on appeal – could do in that province: drive pro-life, orthodox Christian, and other conscience-driven doctors, nurses, and medical professionals from their current positions in our health-care system.


Wesley J. Smith is a senior fellow at the Discovery Institute’s Center on Human Exceptionalism and a consultant to the Patients Rights Council.

Physicians seek leave to appeal Ontario court ruling against physician freedom of conscience

Introduction

Physicians and physician associations are seeking leave to appeal a decision of the Ontario Divisional Court to the effect that physicians must collaborate in providing procedures and services to which they object for reasons of conscience, even if that means collaborating in euthanasia and assisted suicide.  The appeal will be costly.  Faye Sonier, Chief Executive Office of one of the associations that brought the challenge, has issued a plea for donations to support the appeal by Canadian Physicians for Life, the Christian Medical and Dental Society, and the Canadian Federation of Catholic Physicians’ Societies.

Plea for donations to support the appeal of the Ontario Divisional Court decision

The time has come to further our fight to defend the conscience rights of doctors in Ontario. I’m asking you to support our efforts in this fight by making a donation today

As you know, the College of Physicians and Surgeons of Ontario (CPSO) decision was released on January 31. The court found the religious freedom rights of Ontario doctors are significantly violated by the CPSO’s policies, but that those violations can be justified to ensure patient access to healthcare. 

After lengthy consultation with the parties involved in our legal coalition and with over a dozen constitutional lawyers, we’ve decided to request permission from the Ontario Court of Appeal to appeal the decision.

We are pursuing an appeal as the decision was troubling and problematic on many fronts. We have numerous grounds of appeal from which to choose and we will narrow our focus in the coming days.

This is an important step in a process:

  • to ensure that policies that serve only to restrict the constitutional freedoms of physicians do not go unchallenged;
  • to dissuade other provinces from acting similarly;
  • and to communicate that patient access to healthcare is not hindered by maintaining the respect for conscientious objectors in the medical field.

The three physician groups involved in this legal fight, Canadian Physicians for Life, the Christian Medical and Dental Society, and the Canadian Federation of Catholic Physicians’ Societies, are joining together to raise the $125,000 needed for this next step of litigation.

We’re coming to you to ask for your financial support.

Much of the legal costs will be accrued up front as we must conduct research and prepare our written arguments to file the legal documents requesting the opportunity to appeal.  One-time donations made here will directly support this legal fight.

Physicians for Life is a registered charity and issues tax receipts.

Sincerely,

Faye Sonier
Executive Director & General Legal Counsel

P.S. Thank you so much for enabling CPL to continue this battle to defend conscience rights by making your donation today. This case is urgent, and we need funds as soon as possible to ensure that our legal counsel can be in the best position possible to further this fight.

Physicians are not solely responsible for ensuring access to medical assistance in dying

Diane Kelsall

Patients’ rights to access to medical assistance in dying (MAiD) trumps the religious rights of physicians under the Canadian Charter of Rights and Freedoms  –  or so says the Ontario Superior Court of Justice. But ensuring equitable access to health care is a societal responsibility and does not rest solely on the individual physician. Surely there is a way forward that ensures access for patients requesting MAiD without trampling on physician rights enshrined in law.

 


Kelsall D.  Physicians are not solely responsible for ensuring access to medical assistance in dying. CMAJ February 20, 2018 190 (7) E181; DOI: https://doi.org/10.1503/cmaj.180153

Court decision on assisted suicide referrals opens door for other challenges

The Catholic Register

Michael Swan

While doctors who lost their right to practise medicine according to their conscience contemplate a legal appeal, a prominent pro-euthanasia organization suspects faith-based hospitals, nursing homes and hospices may be next to face demands to accommodate euthanasia and assisted suicide.

Dying With Dignity, Canada believes an Ontario Divisional Court decision that compels doctors to refer for euthanasia and assisted suicide may become a springboard to court challenges aimed at the conscience rights of institutions which refuse to assist in the death of patients.

“It’s really interesting. I think that the question is going to be debated in the coming days and weeks, if not months, by lawyers,” Dying with Dignity CEO Shanaaz Gokool told The Catholic Register.

In a unanimous Jan. 31 decision, a panel of three judges agreed that the religion rights of doctors under the Charter are violated by a policy which demands a formal referral for assisted suicide and other procedures. But the judges nonetheless ruled against the doctors because, they said, there is a greater public interest in ensuring “equitable access to such medical services as are legally available.” . . . [Full Text]

Apparently it’s OK to violate doctors’ Charter rights

National Post
Reproduced with permission

Raymond J. de Souza

What happens to fundamental rights when a free and democratic society ceases to be one? That’s the question raised by a decision of the Ontario Superior Court last week.

The court was petitioned by doctors who want nothing to do with “medical assistance in dying,” namely they do not want to use their expertise and professional status to procure the death of their patients. The College of Physicians and Surgeons of Ontario (CPSO) has a policy that requires physicians who do not want to administer lethal treatment to their patients to arrange for their patients to see someone who will. It’s called an “effective referral.” Doctors are therefore mandated to “effect” something that they object to.

Consider a patient who, after a bit of intensive internet research, asks his doctor for a particular drug or course of therapy. The doctor refuses. In her professional judgment the treatment is not in the best interests of the patient. The patient then asks the doctor to arrange for that same treatment from another physician, to “effect” that treatment despite her judgment that it is not appropriate.

The doctor would likely remind the patient that he is free to seek a second opinion, or even seek out another doctor altogether. But the patient’s wish does not override her professional opinion; the doctor is not a waiter taking an order.

What if the patient instead asks to be killed? Then, according to the CPSO, the doctor becomes a service provider, not a professional with a different judgment, much less a citizen with conscientious objections. A doctor can refuse to prescribe the latest weight-loss drug, but must “effect” a lethal injection.

The court, in a unanimous decision, found that the CPSO policy violates doctors’ charter right to religious freedom. (It did not rule on freedom of conscience, but presumably the same would apply.) It further found that the infringement was neither “trivial” or “insubstantial.”

So the court found a serious infringement of a fundamental freedom guaranteed by the charter, and yet upheld the “effective referral” policy, finding that it was a “reasonable limit on religious freedom, demonstrably justified in a free and democratic society.”

Reasonable to whom? Not to the physician who finds abortion abhorrent, and now must to some degree facilitate it. Not to the doctor who wants her infirm patients to know that she would never hasten their deaths, but now is required to co-operate in just that.

The charter permits infringements on rights that are “demonstrably justified in a free and democratic society.” But what happens when society is no longer keen on certain freedoms or certain democratic rights? Or at least when the judges hearing the case think fundamental freedoms not quite so fundamental after all?

The Ontario judges simply decided that they did not think (in this case) that the right to religious freedom was that important. How do we know that? Because the judges accepted that there is “no evidence that conscientious objection results in a failure of access.” So even though a religious or conscientious objection does not impede what a particular policy is attempting to provide, it still can be infringed upon.

Indeed, what makes the Ontario decision all the harder to fathom is that in other provinces there is no equivalent of the CPSO “effective referral” policy. In the internet age, it is not hard for willing doctors to make themselves known. In some provinces the government itself keeps a registry that patients can access. There is no need — as currently demonstrated in other parts of Canada — to force doctors to effect that to which they object.

The only logic that holds the Ontario decision together is that freedom of religion and freedom of conscience are relatively unimportant in a “free and democratic society.” Indeed, the CPSO decision sets the bar of “reasonable limits” so low that it is hard to imagine what would constitute an unreasonable limit.

The answer to that of course is clear, though left unstated. An unreasonable limit is one the judges don’t like. A reasonable one is one that they do.

A palliative-care physician in Ontario who does not wish to participate in assisted suicide now has very good reason to move to Alberta, where she will not be required to effect it. How that helps patients in Ontario is not clear.

It is all quite unreasonable. At least it would be in a free and democratic society.

 

Canadian court rules that state can compel participation in homicide and suicide

News Release

For immediate release

Protection of Conscience Project

Three judges of the Ontario Superior Court of Justice Divisional Court have unanimously ruled that, notwithstanding religious convictions to the contrary, Ontario  physicians can be forced to help patients access any and all services and procedures, including euthanasia and assisted suicide.

“In the end,” observed Project Administrator Sean Murphy,  “the ruling effectively gives the state the power to compel citizens to be parties to homicide and suicide, even if they believe it is wrong to kill people or help them kill themselves.”

The Protection of Conscience Project jointly intervened in the case with the Catholic Civil Rights League and Faith and Freedom Alliance on the issue of freedom of conscience.  The court acknowledged the submission, but explicitly limited its ruling to the exercise of freedom of religion.  It did not address freedom of conscience.

The court approved the reasoning of the College of Physicians and Surgeons of Ontario, the state medical regulator.  The College argued that “physicians must be prepared to take positive steps to facilitate patient access” to euthanasia and assisted suicide, and that there is “no qualitative difference” between euthanasia and “other health services.”

With respect to options of objecting physicians, the court observed that they are free to change their field of practice in order to avoid moral conflicts.  The judges added that those who fail to do so are to blame for any psychological distress they might experience if compelled to violate their convictions.  It appears that they were unconcerned that this might further reduce the number of family and palliative care physicians, noting that there was “no evidence” that coercive policies would adversely affect physicians “in any meaningful numbers.”

Dr. Shimon Glick, advisor to the Project and Professor Emeritus of the Faculty of Health Sciences at Ben Gurion University of the Negev in Israel, described the ruling as “sad.”  Commenting on the decision, Project Advisor Professor Roger Trigg of Oxford said, “once the perceived interests of the State override the moral conscience of individuals  – and indeed of professionals- particularly in matters of life and death, then we are treading a slippery slope to totalitarianism.”

“Even the first steps- that may not seem important to some,” he warned, “are taking us in that direction.”

Professor Trigg’s warning was echoed by Professor Abdulaziz Sachedina, a leading Islamic scholar and philosopher who also serves on the Project Advisory Board.  Professor Sachedina asked, “Are we  going to submit to “totalitarian ethics” reflected in such court decisions, making suicide a tempting option without any regard to conscientious objection?”

The decision concluded legal proceedings launched jointly by five Ontario physicians, the Christian Medical and Dental Society of Canada, Canadian Physicians for Life, and the Canadian Federation of Catholic Physicians’ Societies.  They are considering the possibility of appeal.

Contact:
Sean Murphy, Administrator
Protection of Conscience Project
E-mail: protection@consciencelaws.org


The Protection of Conscience Project is a non-profit, non-denominational initiative that advocates for freedom of conscience in health care. The Project does not take a position on the morality or acceptability of morally contested procedures. Since 1999, the Project has been supporting health care workers who want to provide the best care  for their patients without violating their own personal and professional integrity.