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Lawyers debate conscience rights at Ottawa law school

By Deborah Gyapong

Canadian Catholic News

03/22/2017

OTTAWA (CCN) — Legal experts squared off on physicians’ conscience rights March 16 in a debate hosted by the University of Ottawa’s law school.

Albertos Polizogopoulos, who is representing five Ontario doctors challenging the College of Physicians and Surgeons of Ontario’s policies requiring effective referral on procedures such as abortion and euthanasia, argued for conscience rights, saying they are protected under Section 2(a) of the Canadian Charter of Rights and Freedoms.

Referrals should not be required and the law supports his stance, he said.

The Charter protects the conscience rights of the physicians but there is no Charter right to receive a particular drug or procedure from a particular doctor, Polizogopoulos said.

The Carter decision did not “create a right” to euthanasia or assisted suicide, it “merely struck down” the law against assisted suicide in the Criminal Code, he said.

“The Charter is binding on the College and it protects physicians,” he said.

Refusal to do certain procedures or prescribe certain drugs on conscientious grounds is not a form of discrimination in the same way a female Muslim doctor’s refusing to treat male patients or a physician’s refusing to treat gay patients would be, he said.

Queen’s University Senior Contracts Negotiator Ricardo Smalling argued physicians’ conscience rights must be balanced with the rights of patients who are “seeking care” in their “weakest” moments.

Highlighting the “subjective nature of conscience,” Smalling said eliminating conscientious objection “is the only way to ensure there is a predictable framework that guarantees a patient’s health care.”

Physicians have a right to their religious beliefs but they should know that if abortion or “medical aid in dying” is legal, they “may be required by the state to do these services,” he said.

“If you join and then decide, ‘I will not do it,’ that is unreasonable and should not be accommodated,” Smalling said. He acknowledged there might be an argument to grandfather in those who were licensed before euthanasia and assisted suicide were made legal.

Physicians “willingly join the profession” and “know the physicians’ college can change its code,” but those changes “do not affect the ability to hold beliefs,” he said.

Physicians refusing to provide care on conscience grounds means “patients are not getting the care they are also entitled to under (the Charter’s) Section 2(a) rights” and “now have the views of the physician imposed on them.”

In any job environment, an employee doesn’t “tell the boss, ‘Sorry, I’m not doing this today,’ ” Smalling said.

Both legal experts referred to the Oakes Test as a way of examining whether a limit to a Charter right is “reasonably and demonstrably justified.”

The Oakes Test, from a 1986 Supreme Court Case R vs. Oakes, says the limit must be “fair and not arbitrary” and “rationally connected to that objective”; limit the impairment as much as possible; and be proportional to the objective.

Polizogopoulos said the measures by the College to limit physicians’ conscience rights fail the Oakes Test because there is “no pressing and substantial reason” for the policy.

“(Smalling) cannot point you to one case prior to this policy where somebody’s access to a particular procedure was impeded,” he said.

Smalling, however, argued the College must consider the rights of all the parties that will be affected.

The rights of the physicians are minimally impaired, because he or she “has the right to all their beliefs; they can go to church and manifest their beliefs,” he said. All that’s being asked is “for those hours when you are at work, you don’t manifest them. To me, that’s minimum impairment.”

It’s “not saying to the physician, ‘you don’t have the right to hold those views’ — I’m not forcing you — I’m going to give you a choice do it, or change your specialty or leave the profession.”

The Charter exists to protect people from coercion, from being compelled to take a course of action, Polizogopoulos said, noting he does not do family law, criminal law or real estate. He said he has no moral objections to them, but should he be forced to practice real estate law?

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