Earlier this week, Ontario's highest court heard a case that pits access to health care against the moral convictions of doctors. The case essentially tests the extent to which Canadians can follow their own moral compasses while operating in a professional capacity.
In Ontario, doctors can refuse to perform procedures or prescribe drugs that they consider immoral. However, the public body that regulates these doctors – the College of Physicians and Surgeons of Ontario (CPSO) – requires them to refer patients to doctors who are willing and able to provide the requested health care service.
Referrals are morally problematic for some doctors when it comes to issues such as abortion and assisted death. It wasn't all that long ago that helping someone to die was a crime in Canada, and even though the laws have changed, many doctors' opinions have not. Indeed, if a physician believes that abortion or assisted death amounts to murder, it is not hard to grasp why she would consider it unthinkable to make referrals for these procedures.
Violation of Charter rights
Given the closeness of referrals to actual performance of health care services, the first Ontario court to hear the CPSO case found that a duty to refer violates the Charter rights of doctors who conscientiously object. However, the court deemed it a reasonable limitation, upholding this violation of the Charter. The court identified within the Charter a "right to equitable access to all health care services" and concluded that obligatory referrals protect this right without unduly limiting the Charter rights of conscientious objectors.
The idea of a Charter right to equitable access to health care is debatable, as health care is not a freestanding Charter right. Moreover, inequitable access is a flaw and feature of our health care system. Quality of access varies across provinces, between urban and rural settings, and depending on the procedure. If we tolerate inequitable access due to funding constraints and geography, why not tolerate it for the sake of a human right such as freedom of conscience?
In any event, refusals to refer may not impair access. The lower court noted that there is "no study or direct evidence that demonstrates that access to health care is, or was, a problem that was caused by physicians objecting on religious or conscientious grounds to the provision of referrals."
When it comes to procedures such as abortion and assisted death, there is an important – but often overlooked – difference between saying that the Charter bars the state from criminalizing these procedures in certain circumstances, and saying that the Charter obliges the state to provide them, on demand, as health care. Canadian courts have said the former, not the latter.
Even so, the reality is that these procedures are lawful and the state has chosen to deliver them through our health care system. The Supreme Court foresaw clashes between access and conscience when it opened the door to assisted death in 2015. The Court cautioned that, in delivering assisted death, the Charter rights of "patients and physicians will need to be reconciled."
Certain provinces have taken steps that better reconcile these interests than requiring referrals without sacrificing access to health care. Alberta, for example, created a standalone public health office for assisted death that can be accessed by patients directly. In Quebec, doctors are not required to provide direct referrals for assisted death; they must lead patients to a designated health official or authority that will handle the referral.
Some might defend obligatory referrals because, in their view, the essence of a doctor's role is to provide health care as the state defines it. Yet the substance of health care – the human body, life and death – necessitates room for moral reflection. The idea of doctors who are robotically bureaucratic rather than morally sensitive is not one we should pursue. Indeed, so many elements of health care are fraught with ethical considerations, and if there is a sector of society in which freedom of conscience ought to be robust, this is it.
Freedom of conscience is a fundamental Charter freedom and a human right. It lets us live in alignment with our moral convictions. These convictions, like our identity and integrity, do not lend themselves to being left at home during work hours.