First, Do No Harm: Physicians’ Conscience Rights and Ontario’s Referral Policy

In June of 2016, Bill C-14 received royal assent. The legislation enables patients with grievous and irremediable medical conditions to seek medical assistance in dying (“MAID”). In response to the legislation, the College of Physicians and Surgeons of Ontario (“the College”) passed a new policy regarding medical assistance in dying.¹ The CPSO Policy requires that health care providers with conscientious objections to MAID provide patients with an effective referral to “a non-objecting, available, and accessible physician, nurse practitioner or agency.”² When drafting Bill C-14, Parliament anticipated the legislation would result in some health care providers being asked to give assistance that would be contrary to their conscience or religious beliefs.³ The legislative background to Bill C-14 assures health care providers that “[f]reedom of conscience and religion are protected from government interference by paragraph 2(a) of the Charter. Nothing in the Bill compels health care providers to provide such assistance or could otherwise impact their paragraph 2(a) rights.”⁴

The College maintains the CPSO Policy does not conflict with freedom of religion rights under s. 2(a) of the Canadian Charter of Rights and Freedoms⁵ because an “effective referral” does not constitute the provision of MAID.⁶ However, many physicians and health care providers regard the referral as participation in assisted death. The Christian Medical and Dental Society of Canada, along with other physician advocacy groups, has requested a judicial review of the CPSO Policy. The claimants contend the CPSO Policy infringes upon their constitutional right to object on conscientious or religious grounds. The Ontario Divisional Court heard oral arguments from June 12 to 14, 2017, and released its decision on January 31, 2018.⁷

The case raises important questions about the implications of Bill C-14 on s. 2(a) rights. According to Syndicat Northcrest v. Amselem,⁸ a s. 2(a) challenge requires claimants to show a practice or belief that calls for a particular line of conduct.⁹ While opposition to medically assisted death is not universal among people of religious faith, certain religions take an uncompromising position against any form of euthanasia. The Catechism of the Catholic Church, for example, states that it is morally unacceptable to put an end to the lives of handicapped, sick, or dying persons.¹⁰ Many individuals feel their faith demands that they refrain from assisting in suicide. Furthermore, the objection to medically assisted death need not be a religious one. Physicians could see MAID as subverting their objective of preserving life.

The point of contention is whether giving a referral to a willing physician constitutes assisting in death. This may be a matter of personal interpretation. The Catechism states that “an act or omission which, of itself or by intention, causes death in order to eliminate suffering constitutes a murder gravely contrary to the dignity of the human person.”¹¹ Can the act of giving a referral be construed as causing death?

Criminal law causation principles offer interesting perspectives on this question. The referral could be viewed as a link in the chain of causation, culminating in the patient’s assisted death. Alternatively, referral to another physician could be characterized as an intervening act that breaks the chain of causation and absolves the objecting physician of any moral responsibility.¹² It could also be argued that “but for” the referral, the patient would not have received assistance in dying.¹³ The College characterizes withholding a referral as impeding access to MAID.¹⁴ Conversely, providing a referral can be understood as affording access to MAID. In this view, a referral can be seen as a “significant contribution” to the assisted death.¹⁵ For a physician who views a referral as contributing to a medically assisted death, the CPSO Policy would certainly interfere with their ability to act in accordance with their religious beliefs in a manner that is more than trivial or insubstantial.¹⁶

According to R. v. Big M Drug Mart Ltd.,¹⁷ coercion includes indirect control limiting alternative courses of conduct.¹⁸ The CPSO Policy expressly limits an objecting physician’s options. The physician can either personally assist the patient in dying or refer the patient to someone who will. On the other hand, withholding a referral limits patients’ choices. The Canadian Civil Liberties Association argues the CPSO Policy protects patients’ rights to be free from religious coercion while receiving a government service.¹⁹

While the CPSO Policy does not compel the physician to provide direct assistance in dying, R. v. Edwards Books and Arts Ltd.²⁰ indicates a coercive burden can also be indirect.²¹ If a physician does not comply with the CPSO Policy, he or she could face a fine or the loss of his or her licence.²² Edwards Books states there is coercion if a provision burdens an individual in a way that his or her faith does not.²³ Physicians with conscientious objections in Ontario face the burden of choosing between committing an act they view as wrongful and facing professional sanction.

As of May 31, 2017, the Ontario Ministry of Health and Long-Term Care (“the Ministry”) established the Care Coordination Service (“CCS”) to improve access to information on MAID.²⁴ The service includes a toll-free referral support line to help Ontario physicians arrange referrals for patients who request MAID. The College indicates contacting the CCS constitutes an effective referral pursuant to the CPSO Policy.²⁵ The implementation of the CCS raises the following question: Is the physician’s role necessary in this process? According to the Ministry, CCS can also be accessed directly by patients and their caregivers.²⁶ If patients can be connected to willing doctors or nurse practitioners directly through the CCS, why compel unwilling physicians to play the role of “middle man”? Considering the availability of this option, the CPSO Policy does not minimally impair physicians’ conscience rights. In Carter v. Canada (Attorney General),²⁷ the Supreme Court of Canada noted that the Charter rights of patients and physicians would need to be reconciled in the context of MAID.²⁸ Promoting the CCS may be an effective way to improve patient access to MAID, while still accommodating the conscience rights of health care providers in a reasonable way.

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^* B Ed (University of Saskatchewan), JD Candidate (University of Saskatchewan)

¹ College of Physicians and Surgeons of Ontario, “Policy Statement #4-16: Medical Assistance in Dying” (Toronto: CPSO, June 2016) [CPSO Policy].

² Ibid at 5.

³ Canada, Department of Justice, Legislative Background: Medical Assistance in Dying (Bill C-14) (Ottawa: Department of Justice, 2016) at 21.

⁴ Ibid.

⁵ Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11, s 2(a) [Charter].

⁶ CPSO Policy, supra note 1 at 5.

⁷ The Christian Medical and Dental Society of Canada v College of Physicians and Surgeons of Ontario, 2018 ONSC 579. This comment was written before the decision was released. The Court held that the CPSO Policy infringes religious freedoms (ibid at para 87), but the infringement is justified under s. 1 of the Charter (ibid at para 212).

⁸ 2004 SCC 47, [2004] 2 SCR 551.

⁹ Ibid at para 56.

¹⁰ 2nd ed (Vatican City: Liberia Editrice Vaticana, 2000) [Catechism].

¹¹ Ibid.

¹² See generally R v Maybin, 2012 SCC 24, [2012] 2 SCR 30.

¹³ See generally R v Smithers (1977), [1978] 1 SCR 506, 75 DLR (3d) 321.

¹⁴ CPSO Policy, supra note 1 at 5.

¹⁵ See generally R v Nette, 2001 SCC 78, [2001] 3 SCR 488.

¹⁶ See R v Edwards Books and Art Ltd., [1986] 2 SCR 713 at 716, 35 DLR (4th) 1 [Edwards Books].

¹⁷ [1985] 1 SCR 295, 18 DLR (4th) 321 [cited to SCR].

¹⁸ Ibid at 336-37.

¹⁹ Christian Medical and Dental Society of Canada v College of Physicians and Surgeons of Ontario, Ont Ct J (Prov Div) (Factum of the Intervener at para 6), online: <https://ccla.org/cclanewsite/wp-content/uploads/2017/05/CAN_DMS_107043845_v1_CCLA-Intervention-Factum.pdf>, archived: <https://perma.cc/6WLY-KNY9>. 

²⁰ Edwards Books, supra note 16.

²¹ Ibid.

²² Alex McKeen, “Doctors challenge Ontario policy on assisted-death referrals”, The Toronto Star (13 June 2017), online: <https://www.thestar.com/news/gta/2017/06/13/group-of-doctors-challenge-policy-requiring-referral-to-services-that-clash-with-morals.html>, archived: <https://perma.cc/9QPR-23UG>.

²³ Supra note 16 at 758-59.

²⁴ See Ontario, Ministry of Health and Long-Term Care, “Ontario Establishing Care Coordination Service to Support Patient Access to End of Life Options”, Health Bulletin (29 May 2017), online: <http://www.health.gov.on.ca/en/news/bulletin/2017/hb_20170529.aspx>, archived: <https://perma.cc/KT9Y-F7WD>.

²⁵ College of Physicians and Surgeons of Ontario, “FACT SHEET: Ensuring Access to Care: Effective Referral” (Toronto: CPSO), online: <http://www.cpso.on.ca/cpso/media/documents/policies/policy-items/medical-assistance-in-dying-effective-referral-factsheet.pdf>, archived: <https://perma.cc/P75C-JUPH>.

²⁶ Supra note 24.

²⁷ 2015 SCC 5, [2015] 1 SCR 331.

²⁸ Ibid at para 132.