Ontario Court of Appeal upholds lower court decision forcing doctors to refer patients to their death.

Alex Schadenberg
Executive Director - Euthanasia Prevention Coalition

The Ontario Court of Appeal in its decision concerning physicians conscience rights in Ontario, upheld the lower court decision. 

The Court found that physicians who challenged the College of Physicians and Surgeons of Ontario (CPSO) policy requiring physicians to make an "effective referral" for Medical Aid in Dying (euthanasia and assisted suicide) and other morally contentious issues, that their Charter rights were infringed by the policy, but the infringement is reasonable in a free and democratic society.

Link to Court of Appeal decision.

The CPSO policy is different than other jurisdictions since the policy requires an "effective referral" which means that a physician must refer patients to a physician who is willing to carry-out the act. In the case of euthanasia it means that a physician who opposes killing his/her patients must send his/her patients to a physician who will kill.

The CPSO defined effective referral this way:

Where a physician declines to provide medical assistance in dying for reasons of conscience or religion, the physician must not abandon the patient. An effective referral means a referral made in good faith, to a non-objecting, available, and accessible physician or nurse practitioner or agency.

There are some interesting comments in the Court of Appeal decision. Paragraph 16 emphasizes that the CPSO referral is a policy and not a standard, code or guideline. The Court of Appeal focuses on how the referral policy will not lead to professional misconduct for non-compliance possibly to encourage the CPSO and the objecting physicians to find a negotiated outcome.

Paragraphs 183 to 187 emphasize that a physician can retrain or change their specialty. I consider this to be paternalistic, at best, especially the concept that if I oppose killing patients I can be a foot doctor or have a specialty in athletic training.

The key problem with this decision is it negates the reality that an effective referral does force physicians, who oppose killing, to participate in the act. The court suggests that the decision "strikes a reasonable balance between patients' interests and physicians' Charter protected religious freedom" but in fact it is not a reasonable limit prescribed by law in a free and democratic society.

The objecting physicians only asked that they not be required to directly refer their patients and that Ontario bring-forth a policy similar to Alberta that enables physicians to inform patients that Medical Aid in Dying can be accessed through a government toll free number.

What is also missing in the decision is the fact that many patients seek a physician who will not kill them. We have the right to seek medical assistance from a physician who shares our beliefs. Why should people who believe in killing be the only healthcare consumers who have "rights" in the medical system?

I think another error in the decision is the assumption that MAiD (euthanasia and assisted suicide) are healthcare. 

In fact, the federal legislation legalized MAiD by defining it as an exception in the criminal code.

The defeat at the Ontario Court of Appeal is concerning, especially considering who is sitting on the Supreme Court of Canada, if an appeal is sought.

The physicians and organizations involved in the case need to fully examine the decision and possibly consider alternative solutions to this problem, such as, convincing Provincial governments to protect conscience rights, such as the  Manitoba legislation or helping to elect a federal government that will protect conscience rights through federal legislation, such as David Anderson's Bill C 418. 

• November, 2017 - the Manitoba Legislature unanimously passed Bill 34: The Medical Assistance in Dying (Protection for Health Professionals and Others) Act. 
• Dr Ramona Coelho: We are a nation of Laws and Conscience.
• Alex Schadenberg: Ontario doctors will leave the Province if they are forced to participate in assisted dying.
• Alex Schadenberg: Health professionals opposing euthanasia require conscience protection.
• Alex Schadenberg: Ontario doctors shouldn't be forced to refer their patients for euthanasia.