Divisional Court Decision Requires Ontario Doctors to Give Referrals

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SIHANOUKVILLE, Cambodia (Aug. 8, 2012) HOPE Worldwide volunteer Dr. Cornelia Haner, left, and Capt. William Brunner perform surgery together as a informational exchange aboard the Military Sealift Command hospital ship USNS Mercy (T-AH 19) during Pacific Partnership 2012. Pacific Partnership, an annual U.S. Pacific Fleet humanitarian and civic assistance mission now in its seventh year, brings together U.S. military personnel, host and partner nations, non-government organizations and international agencies to build stronger relationships and develop disaster response capabilities throughout the Asia-Pacific region. (Photo by Kristopher Radder/Released)120808-O-ZZ999-003 SIHANOUKVILLE, Cambodia (Aug. 8, 2012) HOPE Worldwide volunteer Dr. Cornelia Haner, left, and Capt. William Brunner perform surgery together as a informational exchange aboard the Military Sealift Command hospital ship USNS Mercy (T-AH 19) during Pacific Partnership 2012. Pacific Partnership, an annual U.S. Pacific Fleet humanitarian and civic assistance mission now in its seventh year, brings together U.S. military personnel, host and partner nations, non-government organizations and international agencies to build stronger relationships and develop disaster response capabilities throughout the Asia-Pacific region. (Photo by Kristopher Radder/Released)

On Wednesday evening, the Ontario Divisional Court released a decision which dismissed a claim launched by five doctors and three professional organizations regarding a an Ontario policy’s breach of their freedom of religion. The policy in question requires doctors who refuse to administer treatment or procedures on moral or religious grounds to provide referrals for doctors who will complete the procedure. The plaintiffs, representing 4,700 Christian doctors, submit that requiring the physicians to provide a referral forces them to participate in the procedure, therefore infringing on their Charter rights.

Ultimately, the Court found that while the policy did amount to an infringement of the plaintiffs’ freedom of religion, the infringement was within a reasonable limit. In making their decision, the three-member panel emphasized the constitutional right to publicly funded health care and the need to protect vulnerable communities. The claim was raised particularly in response to the procedure of “assisted dying”, but the policy applies broadly to any procedure which may be objectionable on moral or religious grounds.

Paying mind to the vulnerable state of individuals seeking the procedure, the Court emphasized the need to ensure that healthcare was accessible. The plaintiffs further submitted that even a simple referral was contrary to their conscience.

The judgment reinvigorates a discussion of striking the correct balance between the freedom of religion and potentially conflicting rights. In an article published by the Toronto Star on Wednesday evening, Udo Schuklenk, a bioethicist at Queen’s University, suggested that protections for conscientious objectors have no place in a profession such as medicine. He further suggested that such a referral policy would allow physicians to bypass their obligation to provide services such as abortions and contraception, if they are simply able to refer the patient to another physician. This will also likely have the greatest impact in remote communities with less healthcare options.

While freedom of religion is a fundamental freedom enshrined in the CharterSchuklenk raises a strong point as to how the freedom should be weighed against, for example, the requirements and obligations of a voluntarily obtained career. As it relates to health care, it is necessary for courts and physicians alike to prioritize equal access to effective health care. While it is likely that this claim will escalate to the Ontario Court of Appeal, the judgment appears to be logically sound and will likely be upheld.

This blog post was written by a CCLA-PBSC RightsWatch student. Views expressed do not necessarily reflect the views of the CCLA or PBSC

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