By: Daphne Gilbert, Associate Professor at the University of Ottawa Faculty of Law, and Portia Larlee, JD (anticipated 2021)
For more on this topic, see Daphne’s article in issue 43:2 of the Dalhousie Law Journal
No time to waste: Provinces should adopt an effective referral model
Canadians who meet legislated criteria are constitutionally entitled to access Medical Assistance in Dying (MAiD) within Canada’s publicly-funded health care system. More than 7000 Canadians have already received MaiD, and it is becoming a more socially acceptable end-of-life option with each passing month.
However, across Canada, publicly-funded faith-influenced institutions refuse to provide MAiD and some individual physicians profess strong religious and conscientious objections to providing the service. This means some patients who choose MaiD must adapt to a new non-objecting physician or move to a different institution that provides MAiD. Patients who are forced to move to another institution might end up further away from support systems and family members and some patients will find the transfer physically challenging or impossible. Access to MAiD should be unimpeded by politics, professional regulatory regimes, and religion.
An effective referral requirement does not violate physicians’ section 2(a) Charter rights
To balance the rights of conscientious and religious objectors with the rights of Canadians wanting to access MAiD, all provincial regulatory bodies should require at least an “effective referral” model for individual objectors. This means that physicians who are unwilling to provide MAiD for reasons of conscience or religion must make a timely referral to a non-objecting, available, and accessible physician.
In Ontario, five physicians and several physician advocacy organizations unsuccessfully challenged that province’s effective referral requirement in Christian Medical and Dental Society of Canada v College of Physicians and Surgeons of Ontario (CPSO). The CPSO sees an effective referral regime as the appropriate compromise between a patient’s right to MAiD and a physician’s religious or conscience objections to the service. The applicants argued that the policy violated section 2(a) of the Charter.
The Court agreed that some of the individual appellants are not free to practice medicine in accordance with their religious beliefs because of the effective referral requirement, but concluded that the infringement of section 2(a) was justified under section 1 of the Charter. An effective referral requirement is minimally impairing of physician rights. The Court acknowledged two important contextual factors in its decision. The Court noted first that physicians are “gatekeepers” and a “key point of access” to medical services for most patients. It can be difficult to find a family physician in Canada, and for most patients, their family doctor is key to navigating a complex system of specialists and follow-up treatment. Effective referral policies protect patients who depend on their family doctor for coordination of care and initial counselling and information provision.
The second important contextual factor is the nature of the services to which the appellants objected. In addition to MAiD, the appellants objected to providing effective referrals for other services including abortion, contraception, infertility treatments, vasectomies, and gender reassignment surgery. The Court accepted that these issues are difficult for patients to raise and discuss, and noted that it “is impossible to conceive of more private, emotional or challenging issues for any patient.” The combination of stigma and the vulnerability of patients in need of these services heightens the importance of the family physician’s gatekeeper role. In that context, the effective referral policy was minimally impairing.
CPSO is a well-reasoned unanimous decision that may offer some leverage in achieving stronger protections for patients in other provinces. However, an effective referral model for individual objecting physicians is meaningless for hospitalized patients in faith-influenced institutions that refuse to allow MAiD to be performed by any physician on the premises.
Faith-influenced hospital protection under section 2(a) to be litigated
While it may be a fair compromise for a professional regulatory body to allow individual physicians to offer an effective referral for services they object to on a conscience or religious basis, this is an inadequate accommodation for an entire hospital. Faith-influenced institutions are dispersed throughout the country but in some provinces like Alberta, they dominate the health care scene.
The Supreme Court of Canada has yet to decide whether an institution can claim section 2(a) protection. In Loyola High School v Quebec the four-person plurality decision declined to address the question. The minority decision, however, provides some guidance. It found Loyola High School, a Catholic high school, could claim 2(a) protection because its “primary mission” was to offer Catholic education.
The minority decision in Loyola sets out the test for institutional section 2(a) protection: “an organization meets the requirements for s. 2(a) protection if (1) it is constituted primarily for religious purposes, and (2) its operation accords with these religious purposes.” A publicly-funded faith-based institution would not likely meet this test. A hospital is not constituted “primarily for religious purposes.”
However, in applying the test, the minority deviated somewhat from the strictness of its own language. In application, the minority asked if Loyola’s claimed belief that it must teach from the Catholic perspective is consistent with its organizational purpose and operation. This emphasis on “consistency” with purpose is not the same as requiring an organization to be “constituted primarily for the purpose” to qualify for protection under section 2(a).
Faith-influenced hospitals may have an easier time arguing for an institutional right to deny MAiD, if a court focuses on how consistently an institution operates within its stated purpose. For example, faith-influenced hospitals may argue that the sanctity of life, a foundational spiritual belief, is an operating or guiding principle of how health care is organized and delivered in these institutions. Still, a publicly-funded faith influenced institution would not likely satisfy either step of the test. Unlike Loyola College, Catholic hospitals are not organized to give Catholics a community or collective opportunity to live out their spiritual needs, and they do not primarily fulfill that purpose as medical institutions. To resolve this issue, the Supreme Court of Canada will need to take a firm position on whether and when institutions can claim a section 2(a) right and whether a faith-influenced hospital is operating within a primarily religious purpose.
Whether faith-influenced hospitals should have the right to deny access to MAiD is much more than a constitutional quandary. The decision to end one’s life is arguably the most profound decision an individual can make. Individual physicians should not prioritize their own conscientious or religious beliefs over those of their patients. Publicly-funded faith-influenced hospitals should not take a moral stance on this complex social issue, and they should not oppose the Charter-protected rights of patients. The dignity of some of the most vulnerable members of our society is at stake.