Canada

A Request from the

Ontario Human Rights Commission

In June 2008 the Ontario Human Rights Commission requested the CPSO to re-word their policy on providing services to patients since physicians are expected to act in a morally neutral manner today, to leave their belief system at the door of their office, and to provide the service the patient requests. Activists are encouraged to report physicians who fail to do this. They will be prosecuted by the Human Rights Tribunals and found guilty of unprofessional conduct.

CPSO Policy: The Physicians Relationship to the Human Rights Code

The CPSO policy of September 18th 2008 is ambiguous, leaving complaints against physicians in the hands of the Human Rights Tribunals. .The full text of the CPSO policy can be seen on http://www.cpso.on.ca/Policies/Human_Rights.html.

Moral or Religious Beliefs

If physicians have moral or religious beliefs which affect or may affect the provision of medical services, the College advises physicians to proceed cautiously with an understanding of the implications related to human rights.

The College recognizes that personal beliefs and values and cultural and religious practices are central to the lives of physicians and their patients.

Be aware that the Ontario Human Rights Commission or Tribunal may consider decisions to restrict medical services offered, to accept or not accept individuals as patients or to end physician-patient relationships that are based on a physician´s moral or religious beliefs to be contrary to the Code.

Ontario Physicians and the Law

The Human Rights Code says there is no defence for refusing to provide a service on the basis of one of the prohibited grounds. A physician who refuses to provide a service or refuses to accept an individual as a patient on the basis of a prohibited ground such as sex or sexual orientation may be acting contrary to the Code, even if the refusal is based on the physician´s moral or religious belief.

The constitutional law in this area is unclear and so the College is unable to advise physicians how the Commission, Tribunal or Courts will decide cases where they must balance the rights of physicians with those of their patients.

There are some general principles the Courts have articulated when considering cases where equality rights clash with freedom of conscience and religion. These may be applicable to circumstances in which a physician´s religious beliefs conflict with a patient´s requests:

• There is no hierarchy of rights in the Charter: freedom of religion and conscience, equality rights are of equal importance

• Freedom to exercise genuine religious belief does not include the right to interfere with the rights of others

• Neither the freedom of religion nor the guarantee against discrimination are absolute. The proper place to draw the line is between belief and conduct. The freedom to hold beliefs is broader than the freedom to act on them

• The right to freedom of religion is not unlimited; it is subject to such limitations as are necessary to protect public safety, order, health, morals, or the fundamental rights or freedoms of others

• The balancing of rights must be done in context. In relation to freedom of religion, Courts will consider how directly the act in question interferes with a core religious belief. Courts will seek to determine whether the act interferes with the religious belief in a manner that is more than trivial or insubstantial. The more indirect the impact on a religious belief, the more likely Courts are to find that the freedom of religion should be limited.

Ontario College Expectations

The Ontario College has its own expectations for physicians who limit their practice on the basis of moral or religious belief. The College expects physicians to:

• Communicate clearly and promptly about any treatments or procedures the physician chooses not to provide because of his or her moral or religious beliefs.
• Provide information about all clinical options that may be available or appropriate based on the patient´s clinical needs or concerns.
• Physicians should neither express personal judgments about the beliefs, lifestyle, identity or characteristics of a patient or an individual who wishes to become a patient, nor promote their own religious beliefs.
• Advise patients or individuals who wish to become patients that they can see another physician with whom they can discuss their situation and help the patient or individual make arrangements to do so.