Mandatory referrals by conscientious objectors uphold equality and are consistent with human rights standards
Christian Medical and Dental Society of Canada v College of Physicians and Surgeons of Ontario [2019] ONCA 393
Summary
Two policies required Ontario medical professionals to refer their patients to alternative health care providers, even if the medical professionals conscientiously objected on religious grounds to providing the health care.
There were two key issues in this case:
Did the mandatory referral policies infringe the right to freedom of religion? If so, were the means chosen to limit the right demonstrably justified?
Were the mandatory referral policies discriminatory?
The Ontario Court of Appeal balanced the rights of patients to access equitable health care with the rights of physicians with religious convictions and held that:
While the policies infringed the right to religious freedom, this was justified and reasonable in the circumstances; and
The policies did not discriminate against physicians with a religious belief.
Facts
This case was brought by five individual family physicians who conscientiously objected on religious grounds to performing a range of medical procedures, and three organisations representing the interests of such physicians (the Christian Society). The medical procedures under consideration included abortion, contraception, infertility treatment, erectile dysfunction medication, gender reassignment surgery and voluntary assisted dying. These procedures are time sensitive and any delay can inhibit access entirely. Patients needing these procedures are frequently already in vulnerable positions and can be left to navigate the health care system alone. They may experience social, educational, linguistic, cultural and geographic barriers, have a disability or drug addiction, or lack the necessary skills, abilities and resources.
The College of Physicians and Surgeons of Ontario is the governing regulatory body for the Ontario medical profession (the College). The College undertook consultation and analysis of alternative referral models, before setting the two mandatory referral policies. The policies required physicians with a conscientious objection on the basis of religion or conscience to providing a medical procedure or pharmaceutical to provide patients with an "effective referral" in good faith to a non-objecting, available and accessible alternative health care provider.
The policies also required conscientiously objecting physicians to perform the procedure personally in the case of an emergency where necessary to prevent imminent harm to the patient. After the Christian Society accepted that they would not object to performing an abortion to save a pregnant woman's life, the Court did not consider this further.
The Canadian Charter of Rights and Freedoms includes the right to freedom of conscience and religion (s 2(a)), and to equality and non-discrimination (s 15(1)). The Charter acknowledges rights can be limited if the means chosen are demonstrably justified in a free and democratic society (s 1). If an infringement of a right is prescribed by law (the parties accepted in this case that the policies were prescribed by law), a right can be limited if the:
objective of the infringement is sufficiently important to override the right; and
means chosen are reasonable and demonstrably justified. This requires balancing the rights of individuals, groups and society by considering whether the means (a) are rationally connected to the object (the means cannot be arbitrary, unfair or based on irrational considerations); (b) impair the right as little as possible; and (c) are proportionate with its salutary and deleterious effects (R v Oakes [1986] 1 SCR 103).
The Christian Society claimed that their rights to freedom of conscience, religion and non-discrimination under the Charter were infringed because the referral requirement meant physicians would be complicit in health care that offended their religious beliefs.
The Divisional Court dismissed the Christian Society’s arguments and found that the effective referral requirement was an appropriate balance of rights under the Charter. The Christian Society appealed to the Court of Appeal, reiterating its earlier arguments and emphasised the following:
the infringement was an unjustified and unreasonable limit on religious freedom;
there was no rational connection between the policies and the objective;
reasonable alternatives were available to the College which achieved the same result, such as providing patients with general, publically-available resources and services (a "self-referral" or "generalized information" model); and
physicians cannot simply change specialty or sub-specialty.
The College denied that the referral requirement infringed the freedom of conscience or religion (saying that an effective referral only involved minor administrative changes, and this was so trivial or insubstantial that there was no infringement), but also asserted that any infringement was justified under the Charter. The College maintained that the self-referral model unreasonably places the burden on the patient to find a physician to obtain the health care they seek. The College also denied that the policies were discriminatory in nature.
Decision
The Court of Appeal dismissed the appeal and supported the decision of the Divisional Court. The policies were consistent with the physician’s rights to freedom of religion and non-discrimination.
Mandatory referrals are consistent with the right to freedom of religion
Was the right of freedom to religion infringed?
Yes. The Court found that some physicians were not free to practice medicine in accordance with their religious belief.
The Court said that the infringement was neither trivial nor insubstantial. The Court referred to the central role of religion in the lives of the physicians, expert theological evidence that referral was not morally neutral, and the potential that physicians would be forced to abandon their specialty or face disciplinary consequences.[1]
Was the objective of the effective referral requirement sufficiently important to override the right?
Yes. The objective of the policies was characterised as being to facilitate equitable access for patients to health care services. The Court accepted evidence that there was a real risk of a deprivation of equitable access to health care (particularly the more vulnerable members of society) in the absence of an effective referral.
Were the means chosen to limit the right reasonable and demonstrably justified?
Yes. The Court held that the mandatory referral requirement was a reasonable limit, demonstrably justified in a free and democratic society, on the physicians’ right to freedom of religion.
(a) Rational connection: There was a clear logical connection between mandatory referrals and the promotion of equitable patient access to health care.
(b) Minimal impairment: The Court accepted that the effective referral requirement minimally impaired the right to freedom of religion.
The Court found that there was a reasoned apprehension of harm to vulnerable patients in the absence of effective referral requirements (at [125] and [160]), stating effective referral was key to ensuring access to health care (at [120]) and highlighting:
Barriers that can inhibit access to health care: any delay (decisions around these procedures are time-sensitive); difficulty in patients discussing these procedures, even with a trusted family doctor; and stigmatisation within the medical community.
Vulnerable patients: these private, emotional and challenging issues “frequently confront” patients in already vulnerable positions, such as drug addiction, disabilities or economic, linguistic, geographic or cultural barriers (at [121]).
Role of doctors: physicians are a key point of access to health care services (at [118]), acting as “gatekeepers” and “patient navigators” (at [124]).
The Court held that the effective referral requirements fell within the range of reasonably available alternatives (at [152]). The alternatives to the effective referral requirements in the policies suggested by the Christian Society were “fatally flawed” and would “impair equitable access to health care” (at [160]). The Court afforded a measure of deference to the College’s policy judgment (at [155]) and held the College was not required to:
“choose the least intrusive or the least restrictive means” or the “lowest common denominator” restriction (at [152] and [154]).
choose the least ambitious means to protect vulnerable groups (at [154]; Irwin Toy Ltd v Quebec (Attorney General) [1989] 1 SCR 927, 999).
compromise the objective of the equitable access to healthcare in order to minimise the burden on physicians (at [156]-[157]).
In particular, a “self-referral” model would not address the needs of vulnerable patients needing timely access to health care (at [147]).
(c) Salutary and deleterious effects:
The Court held that the policies were a reasonable balance between the patients’ interests and physician’s right (at [187]). The Court held that the burden on physicians did not outweigh the harm to vulnerable patients (at [186]) because:
Patients bear the burden of a physician’s conscientious objection, and any referral is already a compromise for patients’ health care (at [185]).
Physicians could implement other practice structures or use their skills, training and commitment in other ways (at [186]).
Physicians do not have a legal right to practice medicine – this is a privilege that comes with a number of duties and responsibilities (at [187]).
Generally, a patient’s interest in receiving clinically appropriate health care will prevail over a physician’s interest (at [187]).
Mandatory referrals and non-discrimination
The Court dismissed the discrimination claim. The Christian Society had failed to demonstrate that the policies imposed a detriment in a way that reinforced, perpetuated or exacerbated the disadvantage to the physicians.
The policies represent an appropriate balance between the physicians' religious beliefs and equitable access of patients to health care – ensuring patient access to health care by preventing delay to access, loss of eligibility, stigma and emotional distress. The burdens imposed on physicians are intrinsically linked to the practice of medicine. The Divisional Court also recognised that there was no Charter right to practice medicine (at [131]).
Physicians who did not regard the policy as acceptable could change specialities.
Mandatory referrals and freedom of conscience
There was insufficient evidence to support an analysis of the freedom of conscience, and in any case the Court's view was that the case was intrinsically about religion.
Commentary
The Ontario Court of Appeal confirmed that duties on doctors to refer are consistent with human rights standards and strike the appropriate balance between equitable access to health care and freedom of religion.
The decision aligns with the international human rights framework, which applies to Australia. While the right to hold a religious belief is absolute, the right to manifest it can be limited where prescribed by law and necessary to protect health or to protect the rights and freedoms of others.
Doctors do not have a right to practice their profession unfettered by regulatory rules and standards. Health professionals do have a right to freedom of conscience and religion. However this must be balanced against the rights of patients to life, health, autonomy and non-discrimination. Doctors have a duty of care to all their patients, which requires them to act in their patients’ best interests. Patients must be able to access the services they require without discrimination or delay.
Health practitioners choose their profession, and their specialty, and are in a position of power and authority in relation to their patients and the public. This is especially true for doctors who decide to practice in regional and remote locations. Encountering a doctor with a conscientious objection to a health service such as abortion can impede timely access to vital health services, which in turn can imperil a patient’s physical and psychological health. Doctors should not be permitted to abandon their patients.
This case also demonstrates the effectiveness of a Charter of Human Rights and Responsibilities to allow all people to take action against governments and lawmakers to protect their rights. In this case, the Court expressly noted that it did not have institutional competence to make policy decisions (at [155]), and granted the regulator a degree of discretion in setting policies within a reasonable latitude of what was consistent with the rights to equitable access to health care and freedom of religion.
The full judgment is available here. The decision of the Division Court is available here.
Adrianne Walters (Senior Lawyer) and Jordan Tsirimokos (Secondee Lawyer) at the Human Rights Law Centre
[1] A relevant factor in the Divisional Court’s decision was that the concerns of sole practitioners were not addressed by generic guidance on referral options (at [109]).