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.

Doctors Have an Alarmingly High Suicide Rate, and No One Is Sure How to Help Them

Gizmodo

Ed Cara

Medical doctors are more likely to die from suicide than members of any other profession in the US, suggests new research presented this week at the annual meeting of the American Psychiatric Association. And worse than that, few interventions seem to have helped make these suicides less common.

Studies have consistently shown that doctors die from suicide at a higher rate annually than people in any other profession, and some research has found that a majority of medical professionals suffer from serious work stress and burnout. But the authors behind this latest work wanted to not only get a clearer picture of how often these deaths happen, but whether any programs have successfully helped lowered rates. So they examined relevant, peer-reviewed studies dealing with both issues over the past 10 years. . . [Full Text]

Two-thirds of GPs will refuse to provide abortion pills

Doctors voted in closed forum to rule themselves out of service

Irish Independent

Eilish O’Regan

A majority of GPs say they will not provide abortion pills to women in the first 12 weeks of pregnancy if it becomes law, according to a survey of family doctors.

Nearly seven in 10 of the 497 GPs who voted in a closed doctors’ forum said they would not be involved in medical abortions.

Around 15.7pc said they would provide the service and 16.1pc were “unsure”.

The doctors are among 3,700 GPs who are registered with GPBuddy.ie, the online medical directory designed by GPs for Irish healthcare professionals.

They responded to a series of questions on the confidential forum.

Although the survey has its limitations, it indicates that, if rolled out nationwide, it would mean a substantial number of GPs would opt out of the abortion service.

However, they would be obliged to refer a woman seeking an abortion to a doctor who provides the procedure. . . [Full Text]

Catholic leaders attack ‘erosion of respect’ for doctors who oppose abortion

Christian Today

Harry Farley

Catholic heads in the UK are issuing a robust defence of the Church’s abortion teaching after criticism of bishops’ stance from within the Catholic hierarchy.

Describing having a termination as a ‘grave decision’ the two leaders of the Catholic Church in England, Wales and Scotland attack the ‘contradiction’ in abortion laws for disabled babies and praised politicians who try to change the law.

They also lambast an ‘erosion of respect’ for those who oppose abortion, saying doctors and nurses ‘face increasing difficulty in being able to combine their dedicated professional work with their personal conviction’.

Pointing to recent cases where doctors and pharmacists feel they cannot refuse to offer abortion services, the senior bishops write: ‘So much talent is being lost to important professional areas. Personal conscience is inviolable and no-one should be forced to act against their properly formed conscience in these matters. This is something which needs greater debate in our society.’ . . . [Full Text]

 

Ontario Today: Should doctors be forced to refer?

CBC Radio

Outline of the programme

00:00 Introduction

03:00  Dr. Sephora Tang, psychiatrist (objecting physician).  Discussion points include potential problem of access to euthanasia/assisted suicide faced by frail and isolated patients, those in rural areas or  “negative elements” in families, central referral service alternative, issue of complicity, physician-patient relationship.

12:16  Caller Dr. Terry, primary care (objecting physician). Discussion points include erosion of medical ethics, erosion of trust in physician-patient relationship, relationship between law and ethics, distinction in skill sets needed for euthanasia/assisted suicide vs. abortion.

19:25  Interviewer outlines points in position of the Canadian Medical Association

20:19  Caller Vivi. Favours compulsory referral because access to euthanasia/assisted suicide should be considered from patient perspective, not doctor’s.

22:32  Dr. Sephora Tang responds to points made by caller.

24:14  Interviewer outlines policy on effective referral of College of Physicians & Surgeons of Ontario [There are two relevant documents: POHR and MAID; Administrator]

24:34  Caller Dr. Ramona Coelho (objecting physician). Explains why she will not make effective referral.

25:42  Caller Dr. David Roussell, President, College of Physicians & Surgeons of Ontario (CPSO).  Interviewer puts to him opposition to effective referral by the Canadian Medical Association, more liberal policies in other provinces.  Dr. Roussell discusses College policy requiring effective referral.  Asserts that the College is primarily concerned with access to euthanasia/assisted suicide etc. by patients who might have difficulty doing do if their physician does not assist.  Notes that both Nova Scotia and Quebec have similar requirements, so Ontario is not alone.  Notes that referral does not always result in procedure being obtained.  Characterizes objections to effective referral as oversensitive.  Acknowledges that loss of licence to practice is one possible outcome of complaint against a physician for refusing to refer.

35:12  Caller Dr. Christine (objecting physician).  Emphasizes central care coordinating system and self-referral by patients would be more efficient and avoid conflicts of conscience.

37:20  Caller Dr. Roussell agrees that central coordination system and self-referral is promising, but asserts that this can “fall apart” in some cases.

38:25 Caller David.  Opposed to compulsory referral.  Believes it is safer to ensure diversity of views in society, especially in life and death matters, by protecting freedom of conscience.

41:30  Interviewer asks Dr. Roussell to respond to concerns about freedom of conscience.

42:00  Caller Dr. Roussell notes “private beliefs, religious or otherwise, are not the purview, shouldn’t be the purview of the College or the government . . . What we’re talking about here is from the public’s point of view. There’s a legally available service to, in most people’s minds, alleviate suffering, which is what medicine is supposed to be about.  And the battle’s been fought, the war’s been won, the law has been passed.  Why are we throwing up obstacles to a legally accessible service?  Especially throwing up obstacles at the last moment to people who are in some sense suffering.”

43:04 Caller Joel (medical student).  Supports compulsory referral.  “Doctors in Canada should not be practising medicine in Canada if they feel that their moral code supersedes what is law.”  He adds, “It is great for doctors to unite and object on some things” and refers to the Alberta system (which has proved acceptable to objecting physicians).  He believes that effective referral for euthanasia or assisted suicide does not make a physician a “conduit of death,” but means that the patient can access a specialist with appropriate training.  He characterizes acceptance of conscientious objection as a “slippery slope.”

44:45  Caller Erica.  Supports compulsory referral.  Her mother (whom she identified as a Christian) was suffering from multiple sclerosis.  She was joyful when euthanasia was legalized [Criminal Code amendments given Royal Assent in June, 2016; Administrator].  She was not euthanized/assisted with suicide until the end of December, 2016 because her physician (whom Erica also identified as a Christian) refused, and refused to refer her. Erica stated that this “absolutely shattered her.  It took her days to pick herself up and decide she was going to keep trying to find somebody.” Asserts that denying such people access to a medical procedure is unfair.

46:31  Interviewer notes that less than 75 physicians in Ontario are actually providing euthanasia/assisted suicide. Erica explains that a doctor was found after a CBC interview made her situation public.

47:28  Dr. Sephora Tang responds.  Notes that patients want access, and she does not wish to impede.  The system set up by the government made it impossible for patients to access euthanasia/assisted suicide on their own. If society wants people to have access, there are alternative ways to ensure access that should be considered.

48:07  Interviewer asks about patients being fearful of the “judgement” of their physicians.

48:27  Dr. Sephora Tang emphasizes importance of trust in physician-patient relationship.   It is better for the patient to know where she stands on some issues, so there “no guessing around that.”  It is possible to agree to disagree.

49:16  Dr. Chantal (euthanasia/assisted suicide provider).  Supports compulsory referral, because “patients need access.”  Abortion clinics are not an appropriate comparison.  Referral must include all relevant medical information.  “No medical information is necessary for a physician to do an abortion,” but is needed prior to performing euthanasia/assisted suicide.  To expect patients to go to hospitals and doctors to gather all of the relevant medical information is “completely unreasonable.”  Patients would be “significantly compromised” if objecting physicians refused to provide the relevant information.

Postscript from Dr. Christine (Reproduced with permission)

Just because a physician may conscientiously object to formal participation by the administrative/legal/ethical agreement implied by a documentation-based referral (re: linking billing numbers between 2 practitioners for review +/- enactment of a desired procedure),this does NOT mean that an objecting physician would ever dare to obstruct the subsequently requested movement of health file information (which is first and foremost a property that emanates from the patient!) to the clinician to whom the patient wishes to receive lethal injections from. 

Furthermore:  If a patient seeks a care pathway that may end in MAiD, through a care coordination service in the ideal case, then there are administrative health professionals in all the offices who can and do link with each other to physically get the records moving. 

(Again, a physician is not the one pulling the files in a Norman Rockwell/1950’s-style office; we now have digital spigots to move information, and physicians are not required to unlock the content in our current collaborative environment of ConnectingOntario/PRO/OLIS).

 My original point in the call is that forcing a physician to fill out referrals (and limiting the power/responsibility to do this, to physicians) is ironically creating (rather than removing) a barrier to care. 

 (Incidentally – and not all people know this – it is also quite typical and not an exception for most referrals to come with inadequate background case information, even in non-controversial indications; doctors know how to probe for what’s missing [and often have to ask for information in several iterations and from multiple parties], and gaps from healthcare fragmentation are not so much a product of malfeasance as simply laziness…)

 

Don’t trample other folks’ rights with euthanasia

The Province

Gordon Clark

It’s not often that an issue comes along where I struggle to figure out where I stand, especially after considering various points of view. But like many people I’ve spoken with recently, I sure find myself conflicted about euthanasia which, thanks to last year’s Supreme Court of Canada ruling, is rapidly becoming transmogrified from murder into a publicly funded health-care service not much different than an emergency appendectomy.

The court has given the federal government until June 6 to draft the rules by which doctors will be permitted to end the lives of suffering people who consent to be killed. . . [Full Text]

Cardinal Thomas Collins: Don’t force physicians to act against their conscience

As Canada develops its assisted dying legislation, we should be careful to protect health care workers’ right to follow their conscience

Toronto Star

“Contemplating Suicide? We Can Help!” There was a time when such an advertisement pointed to a crisis line, where someone was standing by to counsel you and offer hope in a situation of intolerable pain.

We are in a very different time, now. In a few short months, assisted suicide, its grim reality hidden behind blandly deceptive terms like “medical assistance in dying,” will be declared an acceptable option in our country, enshrined in law. As the federal government prepares legislation to implement the Supreme Court’s decision, it is crucial to consider the effects of this fundamental change in our laws.

Death comes to us all – sometimes suddenly, and sometimes slowly. Although patients benefit from medication that controls pain, they are fully justified in refusing burdensome and disproportionate treatment that serves only to prolong the inevitable process of dying. But dying is simply not the same as being killed. We are grateful for physicians and nurses and others who offer medical assistance to patients who are dying, but it is never justified for them to kill a patient. . .[Full text]

 

 

 

MDs group disappointed by recommendation to require referrals for assisted death

Canadian Press

Sheryl Ubelacker

TORONTO — A parliamentary committee’s recommendation that doctors who object to assisted dying be required to at least refer patients to a willing colleague is not only disappointing, but has also led some physicians to consider leaving their practices, says the Canadian Medical Association.

The all-party committee, which released a set of recommendations Thursday aimed at helping the federal government draft legislation governing medically aided death, said Ottawa should work with the provinces and territories to establish a process that respects a doctor’s freedom of conscience, while respecting the needs of patients.

“At a minimum, the objecting practitioner must provide an effective referral for the patient,” the committee said. . . [Full text]

Doctors won’t impede assisted death, says CMA in open letter

Dr. Cindy Forbes

The Canadian Medical Association (CMA) would like to correct suggestions that timely patient access to assisted dying will be impeded by physicians choosing either not to provide the service or not to make a referral to a colleague or an agency.

The CMA would like to respectfully suggest that this is simply not true, and that many years of international evidence definitively shows this to be the case.

This should not be a debate between patient access or the right to conscientious objection by health care professionals; we absolutely can accomplish both. Put simply, there are other ways besides a referral to ensure access, without requiring a physician to violate his or her moral integrity. And none of these in any way involve abandonment of the patient in a time of great distress.

Access to assisted dying will not be constrained if we do not impose mandatory referral requirements on physicians who see referral as being complicit in the act itself. Nor does this in any way involve imposing the moral views of the physician on the patient he or she serves. . . [Full text]