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Ontario Attorney General intervenes in doctors’ conscience rights case

By Deborah Gyapong
Canadian Catholic News

10/19/2016

OTTAWA (CCN) — The Ontario Attorney General is intervening on the side of the Ontario physicians’ college in defence of a policy that forces doctors to make abortion and euthanasia referrals.

The policy would also force physicians to perform abortions or euthanize patients under unspecified emergency circumstances, said Albertos Polizogopoulos, an Ottawa-based constitutional lawyer who is acting on behalf of parties who have mounted legal challenges on Charter grounds.

This intervention and the aggressive response of the College of Physicians and Surgeons of Ontario to the lawsuits by five Ontario doctors and three groups — the Christian Medical and Dental Society (CMDS) of Canada, Canadian Physicians for Life and the Canadian Federation of Catholic Physicians’ Societies — have caused legal costs to soar.

“The college’s Professional Obligations and Human Rights (POHR) policy requires a physician who objects to providing a procedure for religious or conscientious reasons to make an effective referral to another available, non-objecting, and accessible clinician or agency (or provide the procedure themselves in an emergency where it is necessary to prevent imminent harm to the patient),” said a spokesperson for the Ministry of the Attorney General Brendan Crawley in an email.

He said the college’s policy “applies to religious or conscientious objection” to providing “medical assistance in dying,” the term used for euthanasia or assisted suicide.

“Ontario’s position is that these policies strike a reasonable balance between the sincerely held religious beliefs of objecting physicians and the important state interest in ensuring vulnerable patients are able to access legally available medical procedures,” he said, noting that because the matter is before the courts, they can make no further comment.

In addition, the college is demanding to cross-examine all five doctors involved in the challenge, as well as all the expert witnesses.

“The college has been very aggressive in the way they are handling this case,” said Larry Worthen, a spokesperson for the five Ontario doctors and the three groups. “I think it’s extremely intimidating. (The doctors) are being cross-examined by their regulator, and not only that, they are being cross-examined about their religious beliefs.”

“We all have a right to our religious beliefs,” he said. “How can they be cross-examined about why their religious beliefs make them unable to refer for procedures that are basically morally wrong?”

“We are very concerned about this,” said Worthen, who is executive director of the CMDS Canada, and spokesperson for the Coalition for HealthCARE and Conscience, a nationwide organization that includes the three groups involved in the lawsuit, plus the archdioceses of Toronto and Vancouver, the Catholic Organization for Life and Family, the Canadian Catholic Bioethics Institute, the Catholic Health Alliance of Canada and the Evangelical Fellowship of Canada. The coalition has put out an appeal for funds and for political action on behalf of the litigants.

Polizogopoulos said it is surprising the college is seeking the cross-examine the doctors. “The doctors basically say: ‘Here’s what I believe; here’s what policy does: it forces me to violate my beliefs and the policy and my beliefs cannot be reconciled.’ ”

“This whole case turns on the religious beliefs of the applicants, so it makes sense, but I have never heard anyone, including the college, challenge the sincerity of the doctors’ beliefs,” he said. The college will even cross-examine the evangelical theologian who is testifying as an expert witness.

Though the college can do the cross-examination via video-conferencing, Polizogopoulos must travel to Oregon, North Carolina, Manitoba, Saskatchewan, and the Netherlands to be with the expert witnesses when they testify, driving up the costs.

Worthen said the coalition approached the college and the Government of Ontario to “ask for a workaround or an accommodation,” so patients could have other ways of accessing abortion or euthanasia without having to go through their physicians. They did not even get a meeting.

“In my view, it’s the future of Catholic health care that’s at stake,” Worthen said. “We’re concerned if we lose the case in Ontario, it will affect decisions of (physicians’) colleges across Canada.”

“Ontario has one of the most challenging policies in the country,” he said. “No other jurisdiction outside of Canada where assisted suicide is legal requires referral.”

Only Quebec, which has a slightly different policy, comes as close to demanding a referral as Ontario.

“If a patient complains and the (Ontario) college decides to act on it, the physicians could be disciplined and this includes the loss of their license,” said Worthen.

The groups and the doctors need to raise an additional $55,000 that was not budgeted for, having already spent about $75,000 on the action so far, Worthen said.

The parties have launched two legal applications that will be heard together, Polizogopoulos said. The first was launched in March 2015, after the college adopted a policy that governs all procedures, such as abortion and drug prescriptions, including abortifacient contraceptives. The only objections doctors can make are on medical grounds, he said.

After euthanasia and assisted suicide were legalized in June 2016, the college passed an additional policy regarding euthanasia that “refers to and incorporates” the earlier policy, he said.

The policy uses words like “emergency, and imminent harm” that are “vague and subjective, so we don’t know when and how” circumstances will arise that will require physicians to do what they see as a morally objectionable act, he said.

The lawsuit is seeking a declaration the college is “subject to and bound by the Canadian Charter of Rights and Freedoms,” and that the policies violate the Charter’s Section 2(a) provisions of freedom of religion and freedom of conscience.

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