Physicians and the Ontario Human Rights Code:
Ontario Human Rights Commission attempts to suppress freedom of
doctors free conscience unconscionable"
Reproduced with permission
Samuel Gale Professor of Law and Professor in
the Faculty of Medicine, McGill University's Centre for Medicine, Ethics
A shorter version of this article appeared in the
Calgary Herald on 17 September, 2008
. . .the problem lies in classifying as
discrimination a refusal to provide or refer for a service, such as
abortion, euthanasia, or artificial reproduction, that the physician
believes - and many other Canadians believe - is morally and ethically
wrong. Such refusals should be treated differently from refusals of morally
and ethically neutral services . . .
The College of Physicians and Surgeons of Ontario (CPSO - the regulatory
and licensing authority for physicians and surgeons practicing in Ontario)
has issued a draft policy entitled
"Physicians and the Ontario Human Rights Code". It deals with
physicians' obligations under the Code with respect to engaging in medical
acts to which they may have a conscientious objection and referring patients
for such procedures.
Now, it seems, this matter is also under consideration in Alberta. The
College of Physicians and Surgeons of Alberta (CPSA) began a consultation
process Sept. 2 which ends Nov. 3, and, it's reported, among other issues
physicians' freedom of conscience will be considered. Consequently, what
happens in Ontario is of more than usual importance to all of us.
The Ontario policy states that "[p]hysicians should be aware that
decisions to restrict medical services offered, to accept individuals as
patients or to end physician-patient relationships that are based on moral
or religious belief may contravene the Code, and/or constitute professional
misconduct." In short, the policy makes clear that some conscientious
objections may not be tolerated by the CPSO.
The Ontario Human Rights Commission (OHRC) elaborated on the policy by
pointing out that a refusal to provide a service requested by the patient
can only be justified if the physician does not have the "clinical
competence" to perform it and that a duty to refer exists in such cases. The
Commission also warns that "physicians should not express personal judgments
about the beliefs, lifestyle, identity or characteristics of the patient or
The College also puts physicians on notice that if their conduct
constitutes discrimination under the Human Rights Code, there is no defence
based on moral or religious belief: A "physician's refusal ... on the basis
of a prohibited ground is prima facie discrimination, even if the
refusal is based on the physician's moral or religious belief. This means
that the physician could be subject to a human rights complaint."
And, if the physician's refusal is also professional misconduct, it would
result in disciplinary proceedings and penalties ranging from reprimands, to
fines and loss of a license to practice medicine.
The latest development is that the Ontario Medical Association has spoken
out for protection of physicians' freedom of conscience and against the
policy, which is scheduled to be voted on by the CPSO on September 18th.
The CPSO say they have modified the policy to take account of the OMA's
concerns, but are reported to be refusing to release the modified document
before it is voted on.
Needless to say, the "state of affairs" described above has caused deep
concern for many physicians. What has led to it this approach and what might
be the consequences of adopting it?
First, it reflects a recently emerging view of some people that
physicians are mere technicians able to provide services that patients want
and have a right to access. Physicians have a duty to provide these services
and no right to bring their moral or ethical reservations into play. To do
so is discrimination.
Think of having your car repaired: For a mechanic to refuse to service
your car just because you were a woman would be discrimination and a human
rights offence. Some say physicians' refusal of medical services for moral
or ethical reasons is the same thing.
Unlike the mechanic, however, a physician who refuses to be involved, for
instance, in abortion, is not providing the service to one patient but not
another, or basing his refusal on any characteristic of the patient. Rather,
he is refusing the service to all patients and doing so because of the
nature of the procedure, which he believes is morally and ethically wrong.
And, unlike medicine, usually car repairs don't raise moral and ethical
issues. But what if you were a bank robber preparing a getaway car and told
the mechanic that? Suddenly automotive repair would become an ethical and
moral issue. Would a refusal still be wrong or might it even be required?
And referring the bank robber to another mechanic would make you complicit
in the wrongdoing.
The practice of medicine always and unavoidably involves ethical and
moral issues, although when we all agree on how they should be dealt with,
we might not be consciously aware of them in day-to-day practice. It's only
when something goes wrong or there is a conflict of values that the ethical
issues flash up on the big screen. Treating physicians as mere technicians
fails completely to take that omnipresent ethical aspect into account.
Treating physicians as mere technicians is also the antithesis of the
traditional concept of a physician, as a professional with ethical and legal
obligations to exercise good professional judgment. Most notable among those
obligations is to "first do no harm", which means that a physician may not
simply fulfill a patient's request, but must make an independent judgment as
to its acceptability.
At its extreme, treating physicians as mere technicians can result in an
argument that bizarre requests should be fulfilled: For instance, some
people argue that if a person wants their healthy right leg amputated, they
have a right to do so. On a more everyday level, patients' lifestyle choices
- the OHRC warns failure to honour them could be discrimination - can be a
problem. Some women who rejected physicians' lifestyle advice to change
their diet if they wanted to lose weight and instead demanded Phenphen, a
weight-loss drug, died as a result.
Treating physicians as mere technicians denies that respect is required
for physicians' freedom of conscience and their ethical and moral values.
Quite apart from the serious wrong to physicians that denial inherently
constitutes, such an understanding of the physician- patient relationship
would do a great disservice, not only, to the medical profession and society
in general, but also to patients, because maintaining respect in any human
encounter, including for patients in the physician-patient encounter,
requires that respect be mutual.
In stark contrast to fostering such mutual respect, here's the OHRC's
startling view of a physician's obligation in the physician-patient
encounter: "It is the Commission's position that doctors, as providers of
services that are not religious in nature, must essentially "check their
personal views at the door" in providing medical care." The OHRC makes clear
that physicians' "personal views" include their deepest and most important
ethical and moral beliefs and values. Obviously, that raises serious
problems for physicians, but again it also raises problems for patients:
Would any of us really want to be treated by a physician who had complied
with a directive to "park your ethics and values with your car outside the
It's true that sometimes acting on personal views can be discrimination:
Refusing to treat a patient simply because they were homosexual is
discrimination and wrong. But that's not the issue here. Rather, the problem
lies in classifying as discrimination a refusal to provide or refer for a
service, such as abortion, euthanasia, or artificial reproduction, that the
physician believes - and many other Canadians believe - is morally and
ethically wrong. Such refusals should be treated differently from refusals
of morally and ethically neutral services, such as refusals to rent an
apartment to a person or serve them in a restaurant on the basis of a
prohibited ground of discrimination. We can all agree that is wrong.
Although many Canadians believe that a big difference between the United
States and Canada is that Canadians have a consensus on basic values and
Americans don't, this issue of physicians' freedom of conscience might show
us that that is not true. In short, we might also be involved in the culture
wars, but in a much less high profile way.
The reality is that in many mature Western democracies, we have many
competing societal values, with abortion at the eye of the storm. For
instance, even leaving aside the United States, exactly the same issue of
forcing physicians, who have conscientious objections, to do or refer for an
abortion has just erupted in the state of Victoria in Australia.
Abortion is so central to our values disputes, because respect for human
life is the foundational value of our kind of society and abortion involves
defining what that respect requires.
In Canada, having achieved a black hole on abortion law - there is no law
- pro-choice advocates are not content with having the freedom to act
according to their values; they want to make others, for whom it would be a
breach of their values, act likewise. And they want to have their beliefs
and values publicly affirmed. Obtaining official rulings from Human Rights
tribunals that physicians have no freedom of conscience protection regarding
abortion establishes that their values should predominate as the societal
In short, these people claim freedom of values belief for themselves, but
refuse to respect others' freedom. That's why they will not tolerate a
respect-for-freedom-of-conscience exception. No matter what our values or
views, we should all be concerned by such totalitarianism.