Barrie Lawyers Discuss: Effective Referrals Required of Objecting Physicians: Christian Medical and Dental Society
On May 15, 2019, the Ontario Court of Appeal released its decision on Christian Medical and Dental Society of Canada v. College of Physicians and Surgeons of Ontario, 2019 ONCA 393 (CanLII). A group of physicians brought forth the appeal, after unsuccessfully challenging a pair of policies established by the College of Physicians and Surgeons.
These policies require objecting physicians to `effectively refer` patients to an accessible provider and were instituted in 2015 following the Supreme Court of Canada’s nullification of several provisions prohibiting assisted suicide (Carter v. Canada (Attorney General), 2015 SCC 5 (CanLII)).
This main issue on this appeal was whether the effective referral requirements infringed the appellant`s section 2(a) Charter rights (i.e. freedom of religion to object to referrals) in a way that is unjustified under section 1 of the Charter. The Court ultimately confirmed the lower court’s finding that the infringement is justified.
By affirming the lower court`s finding that effective referral adequately reconciles the conflict between a patient`s access to medical services and a physician`s freedom of religion, Ontario`s Court of Appeal set a strong precedent for access to religiously contentious medical services. While the exact impact is unknown, some reasonable inferences can be made.
Section 2(a) of the Canadian Charter of Rights and Freedoms guarantees everyone the “freedom of conscience and religion.” This includes the freedom to practice religion, the freedom from compulsory religion, and equality between religions. In order to determine what constitutes a breach of section 2(a), the Courts developed the two-stage Amselem test:
“First, that he or she sincerely believes in a practice or belief that has a nexus with religion; and second, that the impugned state conduct interferes, in a manner that is more than trivial or insubstantial, with [their] ability to act in accordance with that practice or belief.”
Law Society of British Colombia v. Trinity Western University, 2018 SCC 32 (CanLII).
The Christian Medical and Dental Society asserted that compulsory effective referrals were an infringement that interfered with a sincere belief that was more than trivial or insubstantial and the Court agreed.
However, under section 1 of the Charter, these fundamental freedoms are not fully guaranteed, but are instead subject “to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” This stage of analysis is known as the Oakes test, which essentially provides the Court with the constitutional ability to rescue prima facie infringements. While the test has three broad stages, the only truly contested one was the third:
 “[T] he means chosen must be reasonable and demonstrably justified – this is a “form of proportionality test” which … requires a balancing of the interests of society with the interests of individuals and groups and has three components:
(i) the measure must be rationally connected to the objective – i.e., carefully designed to achieve the objective and not arbitrary, unfair or based on irrational considerations;
(ii) the means chosen should impair the Charter right or freedom as little as possible; and
(iii) there must be proportionality between the salutary and deleterious effects of the measure.”
Christian Medical and Dental Society of Canada v. College of Physicians and Surgeons of Ontario, 2019 ONCA 393 (CanLII).
Therefore, the effective referral policy had to be justified as the most minimally impairing measure on the objecting physicians religious freedoms with societal benefits that outweigh individual costs to freedom. By undertaking this cost-benefit analysis, the Court determined that effective referral was a reasonable and justifiable compromise that balances the two interests. According to the decision, effective referral is the key to accessing health care services of all kinds in an equitable manner. Furthermore, by virtue of evidence and logic, it is reasonable to expect that the effective referral requirement will make a “positive difference in ensuring access to healthcare, and in particular equitable access to health care.”
The precedent set by the decision, asserts that effective referral is required of all physicians who object to certain treatments on religious grounds.
An effective referral is dissimilar to a formal referral, as the former must merely be “made in good faith, to a non-objecting, available, and accessible physician, nurse practitioner or agency”, rather than following rigidly formalistic protocols. This effective referral must be made in a timely manner to allow the patient to access the objected services. If the physician fails to follow the policy, they may face professional misconduct proceedings with these refusals acting as evidence to their alleged misconduct.
Medical Services Protected
The medical services to which the effective referral requirement applies to is broad. Although the court does not provide an exhaustive list, it appears to apply to all “medical procedures or pharmaceuticals [that are objected to] on the basis of religion or conscience.” This includes (as explicitly enumerated by the Court), but is not limited to, medical assistance in dying (MaiD), abortion, contraception, fertility treatments, and gender re-assignment treatments.
In addition, it would presumptively include opioid/steroid injections, medical marijuana, as well as many other progressive treatments.
Implications for Personal Injury Litigation
While the ruling’s impact on constitutional law is inherently explicit, its effects on personal injury litigation will be more subtle. Greater access to these services, especially injections and medical marijuana, will result in more clients or patients receiving the treatment and medications they rightfully deserve.
By allowing religious objections without any referral process, many patients, who are already vulnerable due to their health, socio-economic, or educational status, with incur real risks of being unable to access medical services. In balancing this detriment with a physician’s religious freedom, the Court concluded that the effective referral requirement was demonstrably justified, as the policies strike a reasonable balance between the patients’ interests and the physicians’ Charter-protected rights; upholding the policies as a result.