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Conscience rights decision sure to end up in court

By Michael Swan
The Catholic Register

03/18/2015

TORONTO (CCN) — Some doctor, somewhere in Ontario, is heading for court. The only question is how and when, according to Catholic Civil Rights League president Phil Horgan.

By a vote of 21-3, the Ontario College of Physicians and Surgeons passed a new policy on March 6 which would require doctors with moral objections to refer for abortion, contraception and other controversial procedures. The policy is headed for either immediate judicial review or a test case, Horgan said.

The college claims its new policy intends to balance the competing rights of doctors who object to abortion for ethical or religious reasons with the right of patients to access a legal procedure.

“That’s a false paradigm,” Horgan said.

While the right to freedom of conscience and religion is written into the Constitution in the Charter of Rights and Freedoms, the absence of any law on abortion does not create an equivalent right to abortion, said the lawyer.

“That’s elevating patient autonomy into some sort of right.”

But getting a case in front of a judge may not be so easy, said Errol Mendes, a University of Ottawa professor of constitutional and human rights law. The Charter of Rights and Freedoms applies directly to governments and not to independent bodies, such as the college, Mendes said.

“As this is an association of medical practitioners, I’m not sure the court would actually allow this to be a Charter case,” Mendes, who is also a commissioner on the Ontario Human Rights Commission, told The Catholic Register. “If it’s not covered by the Charter, because it’s not governmental related, how (would a court hear the case)? Unless government sort of passes a law to that effect, it becomes a private issue.”

But the lawyers at the Evangelical Fellowship of Canada believe it is a Charter case.

“The CPSO is bound by the Charter and must not enforce policies that violate the rights or freedoms of either its members or their patients,” said a Feb. 19 EFC submission to the college.

“(T)here is no right for a patient to demand and receive a particular service from a specific physician. It is the health care system that is obligated, not the individual physician, and the system established for the delivery of services must respect the diversity and plurality of both those who access the system and those who provide the services.”

Like most of the submissions to the college’s consultation on the new policy, the EFC hones in on the policy’s requirement that doctors provide an “effective referral.”

“Providing an effective referral involves more than providing information about clinical options. Providing a referral means the doctor is convinced that in their judgment the best interest of the patient is served by a particular course of medical treatment or procedure . . . Some doctors believe that providing an effective referral is morally the same as providing the course of action or treatment itself. To compel them is a violation of their Charter rights and freedoms.”

The college has so far refused to say what penalties might apply to a doctor who defies the new policy, which calls for an “effective referral . . . in good faith, to a non-objecting, available and accessible physician, other health care professional or agency.”

Its best legal advice is that the new policy will withstand any challenge, said Dr. Marc Gabel, who chaired the policy working group and spearheaded the consultation.

“It will be reviewed again in the future,” Gabel said. “Life changes. Jurisprudence changes.”

Complaints will be investigated and the usual panel of physicians and members of the public will “evaluate the physician’s conduct as against the policy expectations,” said an FAQ issued with the new policy. The college warns that doctors found to have violated the policy may also be subject to complaints at the Ontario Human Rights Tribunal.

Action Life Ottawa executive director Louise Harbour was left wondering whether the college’s policy committee had determined the outcome of the consultation before it ever began. Her organization’s submission on the new policy was one of what Gabel called an “overwhelming majority” of 1,538 responses that objected to the new policy.

“It’s the second time that overwhelmingly the majority of submissions sent to the college were opposed to the draft policy,” said Harbour, referring to a similar policy which the college failed to pass in 2008.

In the end the majority of negative responses to the official, online consultation process was trumped by a poll commissioned by the college. The poll found 94 per cent of Ontarians would want objecting doctors to provide information, 92 per cent would want the doctor to identify another physician and 87 per cent said the objecting doctors should provide a referral.

“I think it will have to be challenged in court somehow,” Harbour said.

Barbara Hall, Chief Commissioner of the Ontario Human Rights Commission, wrote to the College of Physicians and Surgeons to say she found the policy struck the right balance.

“It acknowledges a physician’s right to freedom of conscience and religion,” she wrote in a Feb. 19 submission. “The draft policy recognizes that no right is absolute; the core of a right is more protected that the periphery; rights can be limited by the rights and freedoms of others; and that the aim is to respect the importance of both sets of rights.”

Doctor opinion, however, is deeply divided.

Among the three votes against the new policy on the college board of governors was Dr. Wayne Spotswood, a doctor who regularly performs and assists at abortions and refers for abortion. By not ever mentioning abortion in the wording of the new policy, Spotswood felt the college was being dishonest.

“There is nothing about abortion, and that’s what we are here contesting today,” he said.

Spotswood also questioned if it was necessary to force dissenting doctors to act against their conscience.

Windsor, Ont.’s Dr. Peter Tadros also argued against the new policy and voted against it. The policy would reduce doctors to “an educated, well-paid puppet on a string,” Tadros said. “We must respect what the physician holds in his heart. If we want doctors to act ethically, why do we force them to do what they regard as wrong?”

Among the medical bodies that objected to the new requirement of an “effective referral” were the Ontario Medical Association and the Canadian Medical Association.

“The issue of access when it comes to contentious medical services is a complex one that will require stakeholder collaboration to develop a more nuanced approach,” said the OMA submission. “We believe the college will have more success in achieving its goal if physicians are not forced to comply with a rigid process that may present serious moral dilemmas and diminish their dignity.”

The new policy was commended by both the Alberta and Saskatchewan colleges of physicians and surgeons. The Saskatchewan college will vote on a very similar policy later this month.

Though the Abortion Rights Coalition of Canada praised the aim of the new policy, it sought stringent policies to effectively outlaw all conscientious objection to abortion and contraception.

“So-called conscientious objection in reproductive health care should be generally banned because it is not genuine freedom of conscience — it is a veto of a patient’s right to health care, an abuse of authority over a dependent person, and an unjustified refusal to do the job one was trained and paid to do,” read the coalition’s submission. “Once you allow any degree of conscientious objection, you can’t effectively limit its exercise because it’s not possible to constrain religious beliefs by imposing a rational, evidence-based compromise (like your draft policy).”

The coalition submission goes on to predict that objecting doctors will “simply flout the policy.”

The coalition urges “dismissal or loss of licence as well as liability for costs and any negative consequences to victims.” Any doctor who questions abortion should be forced out of family medicine and obstetrics, said the coalition.

For the Catholic Organization for Life and Family the danger is that the Ontario college is absolutizing current popular bias on a difficult, complex and controversial problem.

“Recall that the medical establishment has often proposed practices which it subsequently repudiated — lobotomy and electric shock treatment to name two of many,” wrote COLF.

The practice of medicine is impoverished if it tries to dictate conscience to doctors, said the Canadian bishops’ pro-life organization.

“It risks turning them into mere dispensers of medical services whose good in a given situation is determined by persons other than themselves,” wrote COLF.

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