Professional Obligations and Human Rights
Approved September, 2008 | Reviewed and Updated March, 2015

...effective referral: taking positive action to ensure the patient is connected¹ to a non-objecting, available, and accessible² physician, other health-care professional, or agency.³ For more information about an effective referral, see the companion Advice to the Profession document.Project Annotation (i)

***

Limiting Health Services for Legitimate Reasons

The duty to refrain from discrimination does not prevent physicians from limiting the health servicesProject Annotation (ii) they provide for legitimate reasons (for instance, because the care is outside their clinical competence or contrary to their conscience or religious beliefs).¹⁰

5. While physicians may limit the health services they provide for legitimate reasons, they must do so in a manner that respects patient dignity and autonomy, upholds their fiduciary duty to the patient, and does not impede equitable access to care for existing patients, or those seeking to become patients [Emphasis in original].

***

Conscience or Religious Beliefs

The College recognizes that physicians have the right to limit the health services they provide for reasons of conscience or religion.

However, physicians' freedom of conscience and religion must be balanced against the right of existing and potential patients to access care. The Court of Appeal for Ontario has confirmed that where an irreconcilable conflict arises between a physician's interest and a patient's interest, physicians' professional obligations and fiduciary duty require that the interest of the patient prevails.13, Project Annotation (iii)

The College has outlined expectations, set out below, for physicians who have a conscientious or religious objection to the provision of certain health services. These expectations accommodate the rights of objecting physicians to the greatest extent possible,Project Annotation (iv) while ensuring that patients' access to healthcareProject Annotation (ii) is not impeded.

9. Where they choose to limit the health services they provide for reasons of conscience or religion, physicians must to do so in a manner that respects patient dignity, ensures access to care,Project Annotation (ii) and protects patient safety [Emphasis in original].

Respecting Patient Dignity

10. Where physicians object to providing certain elements of care for reasons of conscience or religion, they must communicate their objection directly and with sensitivity to existing patients, or those seeking to become patients, and inform them that the objection is due to personal and not clinical reasons [Emphasis in original].Project Annotation (v)
11. In the course of communicating their objection, physicians must not express personal moral judgments about the beliefs, lifestyle, identity, or characteristics of existing patients, or those seeking to become patients. This includes not refusing or delaying treatment because the physician believes the patient's own actions have contributed to their condition [Emphasis in original].
    1. Furthermore, physicians must not promote¹⁴ their own religious beliefs when interacting with patients, or those seeking to become patients, nor attempt to convert them [Emphasis in original].

Ensuring Access to Care

12. Physicians must provide information about all clinical options that may be available or appropriate to meet patients' clinical needs or concerns [Emphasis in original].
13. Physicians must not withhold information about the existence of any procedure or treatment because it conflicts with their conscience or religious beliefs [Emphasis in original]. 
14. Where physicians are unwilling to provide certain elements of care for reasons of conscience or religion, they must provide the patient with an effective referral [Emphasis in original].
    1. Physicians must provide the effective referral in a timely manner to allow patients to access care [Emphasis in original].
    2. Physicians must not expose patients to adverse clinical outcomes due to a delayed effective referral [Emphasis in original].
15. Physicians must not impede access to care for existing patients, or those seeking to become patients [Emphasis in original].
16. Physicians must proactively maintain an effective referral plan for the frequently requested services they are unwilling to provide[Emphasis in original].

Protecting Patient Safety

17. Physicians must provide care in an emergency, where it is necessary to prevent imminent harm, even where that care conflicts with their conscience or religious beliefs[Emphasis in original].¹⁵

POHR notes

1.  An effective referral does not necessarily, but may in certain circumstances, involve a 'referral' in the formal clinical sense, nor does it necessarily require that the physician conduct an assessment of the patient to determine whether they are a suitable candidate for the treatment to which they object.

2.  'Available and accessible' means that the health-care provider must be in a location the patient can access, and operating and/or accepting patients at the time the effective referral is made.

3.  In the hospital setting, practices may vary in accordance with hospital policies and procedures.

10.  For more information see the College's Accepting New Patients and Ending the Physician-Patient Relationship policies.

13.  See para. 187 Christian Medical and Dental Society of Canada v. College of Physicians and Surgeons of Ontario, 2019 ONCA 393.

14.  This includes implying that the physician's religion is superior to the patient's beliefs (spiritual, secular or religious).

15.  This expectation is consistent with the College's Providing Physician Services During Job Actions policy. For further information specific to providing care in health emergencies, please see the College's Public Health Emergencies policy.

---

Advice to the Profession: Professional Obligations and Human Rights
Effective Referrals: What Physicians Need to Know

The College recognizes that physicians have the right to limit the health services they provide for reasons of conscience or religion. However, physicians' freedom of conscience and religion must be balanced against the right of existing and potential patients to access care.Project Annotation (i)

When physicians limit the health services they provide for reasons of conscience or religion, the College requires that they provide patients with an 'effective referral'.

What is an effective referral?

Physicians make an effective referral when they take positive action to ensure the patient is connected in a timely manner to a non-objecting, available, and accessible physicians, other-health-care professional, or agency that provides the service or connects the patient directly with a health-care professional who does.Project Annotation (ii)

The objective is to ensure access to care and respect for patient autonomy. An effective referral does not guarantee that a patient will receive a treatment or signal that the objecting physician endorses or supports the treatment.Project Annotation (iii) An effective referral also does not necessarily require that a referral in the formal clinical sense be made and does not require the physician to assess or determine whether the patient is a suitable candidate or eligible for the treatment to which the physician objects.

An effective referral involves taking the following steps:

1. The physician takes positive action to connect a patient with another physician, healthcare provider, or agency. The physician can take these steps themselves or assign the task to someone else,Project Annotation (iv) so long as that person complies with the College's expectations.
2. The effective referral must be made to a non-objecting physician, healthcare provider, or agency that is accessible and available to the patient. The physician, healthcare provider, or agency must be accepting patients/open, must not share the same religious or conscience objection as the physician making the effective referral, and must be in a location that is reasonably accessible to the patient or accessible via telemedicine where appropriate.
3. The effective referral must be made in a timely manner, so that the patient will not experience an adverse clinical outcome due to a delay in making the connection. A patient would be considered to suffer an adverse outcome due to a delay if, for example, the patient is no longer able to access care (e.g., for time sensitive matters such as emergency contraception, an abortion, or where a patient wishes to explore medical assistance in dying), their clinical condition deteriorates,Project Annotation (v) or their untreated pain or suffering is prolonged.Project Annotation (vi)

What are some examples of an effective referral?

The following are examples of the steps physicians can take to ensure their patient is connected in a timely and appropriate manner. The examples provided are not exhaustive and the steps needed to ensure a connection is made depend on the patient's circumstances. Physicians will need to use their judgement, considering the patient's particular circumstances, when determining how to meet this obligation.

The physician or designate contacts a non-objecting physician or non-objecting healthcare professional and arranges for the patient to be seen or transferred¹.Project Annotation (ii)

The physician or designate connects the patient with an agency charged with facilitating referrals for the healthcare service, and arranges for the patient to be seen at that agency. For instance, in the medical assistance in dying (MAID) context, in appropriate circumstances an effective referral could include the physician or designate contacting Ontario's Care Coordination Service (CCS). The CCS would then connect the patient with a willing provider of MAID-related services.Project Annotation (vii)

A practice group in a hospital, clinic or family practice model identifies patient queries or needs through a triage system. The patient is directly matched with a non-objecting physician in the practice group with whom the patient can explore all options in which they have expressed an interest.Project Annotation (viii)

A practice group in a hospital, clinic or family practice model identifies a point person who will facilitate referrals or who will provide the healthcare to the patient. The objecting physician or their designate connects the patient with that point person.Project Annotation (ii)

What is the basis for physicians' right to limit the health services they provide for reasons of conscience or religion and why has the College set out an effective referral requirement?

The Canadian Charter of Rights and Freedoms (the “Charter”) protects the right to freedom of conscience and religion.² Although physicians have this freedom under the Charter, the Supreme Court of Canada has determined that no rights are absolute and that there is no hierarchy of rights; all rights are of equal importance.³ The right to freedom of conscience and religion can be limited, as necessary, to protect public safety, order, health, morals, or the fundamental rights and freedoms of others.⁴

Where physicians choose to limit the health services they provide for reasons of conscience or religion, this may impede access to care in a manner that violates patient rights under the Charter and Code.⁵ Should a conflict of rights arise, the aim of the courts is to respect the importance of both sets of rights to the extent possible.Project Annotation (ix)

The balancing of rights must be done in context.⁶ In relation to freedom of religion specifically, courts will consider the degree to which the act in question interferes with a sincerely held religious belief. Courts will seek to determine whether the act interferes with the religious belief in a manner that is more than trivial or insubstantial. The less direct the impact on a religious belief, the less likely courts are to find that freedom of religion is infringed.⁷ Conduct that would potentially cause harm to and interfere with the rights of others would not automatically be protected.⁸ The Court of Appeal for Ontario has confirmed that where an irreconcilable conflict arises between a physician's interest and a patient's interest, physicians' professional obligations and fiduciary duty require that the interest of the patient prevails.^{9, Project Annotation (x)}

The College has outlined expectations, set out below, for physicians who have a conscientious or religious objection to the provision of certain health services including that they make an effective referral. These expectations accommodate the rights of objecting physicians to the greatest extent possible,Project Annotation (xi) while ensuring that patients' access to healthcare is not impeded.

Advice to the Protession (POHR) Notes

2.  Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11, s 2(a).

3.  Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835 at p 839.

4.  R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295 at para 95.

5.  R. v. Morgentaler, [1988] 1 S.C.R. 30 at pp 58-61; Human Rights Code, R.S.O. 1990, c. H. 19.

6.  Ontario Human Rights Commission, Policy on Competing Human Rights, (Ontario: Jan 26, 2012).

7.  Syndicat Northcrest v. Amselem, [2004] 2 S.C.R. 551 at paras 59-61.

8.  Syndicat Northcrest v. Amselem, [2004] 2 S.C.R. 551 at paras 59-61.

9.  See para. 187 Christian Medical and Dental Society of Canada v. College of Physicians and Surgeons of Ontario, 2019 ONCA 393.