Ontario Court decides it’s reasonable to force doctors to refer for assisted suicide



February 7, 2018


Ontario doctors who have religious or conscientious objections to practices such as abortion or doctor-assisted suicide (euphemistically called Medical Assistance in Dying) will nevertheless have to give effective referrals to their patients for the procedures. Either that, or they’ll have to change their medical specialties into areas where these things are not an issue. That’s the upshot of a unanimous ruling of a 3-judge panel of the Ontario Superior Court, issued on January 31st.

The ruling addresses a legal challenge filed by the Christian Medical and Dental Society of Canada (CMDS), several other organizations, and five individual doctors, who all argued that a referral policy by the College of Physicians and Surgeons of Ontario (CPSO) was a violation of Charter guarantees to freedom of conscience and freedom of religion. But the Court found that the referral provisions represented “reasonable limits on religious freedom, (which are) demonstrably justified in a free and democratic society” and that there is “no factual foundation establishing an infringement of the rights of … religious physicians.”

The court has essentially told Christian doctors to either retrain for another speciality or leave medicine altogether

The court also suggested that doctors who couldn’t in good conscience refer for the procedures in question were free to change their specialties. The ruling says that “the principal, if not the only, means of addressing their concerns would be a change in the nature of their practice if they intend to continue practicing medicine in Ontario. In short, they would have to focus their practice in a specialty or sub-specialty that would [not result in referral requests for objectionable procedures.]”

Larry Worthen, the Executive Director of the CMDS, says lawyers are still going over the wording of the ruling, but he thinks there’s a “very high likelihood” it will be appealed. The appeal deadline is February 15. “Our grounds of appeal, quite simply, are that this is overkill. This is over-reach.” He says while the court’s objective was to ensure “access” to medical services, the ruling “doesn’t present any proof that (the exercise of) conscientious objection would affect that access.”

As to the notion that doctors could simply “switch specialties”, Worthen says doctors are “astounded” by the notion that they don’t have a right to practice medicine in the speciality of their choice. “The specialties that are impacted by this are huge. Family medicine, oncology, internal medicine; these are all huge specialties where there are tremendous needs for doctors in these areas.” However, Worthen says, the court has essentially told Christian doctors to either “retrain for another speciality or leave medicine altogether.”

Sean Murphy of the British Columbia-based Protection of Conscience Project says the implications of the ruling are truly stunning because it “authorizes the state to compel citizens to become parties to homicide and suicide. If the state can force people to become involved in killing other people, there is virtually no limit to what it can demand.”

Once the perceived interests of the state override the moral conscience of individuals, particularly in matters of life and death, then we are treading a slippery slope to totalitarianism.

The ruling has also drawn international attention. Dr. Roger Trigg is the Senior Research Fellow at the Ian Ramsay Centre for Science and Religion at Oxford University in the UK. He says the ruling has broad implications for the direction of Canadian society. “Once the perceived interests of the state override the moral conscience of individuals – and indeed of professionals – particularly in matters of life and death, then we are treading a slippery slope to totalitarianism.”

In addition to considering an appeal of the court ruling, the CMDS is also launching what they’re labeling their “Call for Conscience” campaign.  “First of all,” Worthen says, “we need people to pray.” Beyond that, he says they’ve set up a website where Ontario residents can write letters to their MPP. Worthen says they’re hoping to turn this into a major issue in the upcoming provincial election campaign as well.  “We’ve got it all set up so that as soon as the candidates are assigned, people will be able to write to those candidates and ask them to look at this conscience issue.”

The courts seem to be changing the law to bind these doctors to the obligations of the Charter, simply by reason of their employment by the government. This is wrong.

André Schutten, lawyer and Director of Law and Policy with ARPA Canada, shared his frustration about the ruling. “This ruling, like many of the arguments in the TWU religious freedom case, perpetuates an inaccurate – no, a fundamentally flawed, application of the Charter. Instead of allowing doctors as citizens to benefit from the protection of the Charter, the courts seem to be changing the law to bind these doctors to the obligations of the Charter, simply by reason of their employment by the government. This is wrong.” Schutten explained that the court decision leaves it open to the Ontario legislature to change the law. “Manitoba has passed legislation protecting the conscience rights of doctors, while still allowing for doctor assisted suicide. Ontario can certainly do the same thing. We need to resurrect Bill 129 in Ontario. That bill would be constitutional, would protect doctors who practice ethical medicine, and it should be passed as soon as possible after the Ontario election.”

In the public square, religious freedom loses.

Deina Warren, a lawyer involved in the case, wrote an excellent analysis of the judgement. In it she points out some troubling implications. “Practicing medicine from a Christian ethical framework is characterized as one likely to shame patients,” she writes. “The Court reveals much about its own worldview in this [judgement]. It sees religious conviction as being at odds with an ethical practice. It sees religious conviction as being offensive to patients. It ignores the fact that many patients want a doctor who practices from a Christian ethic. And it equates declining to refer with “refusal to assist” the patient.” Warren concludes that, “In the public square, religious freedom loses.”

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