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Canada Ontario’s top court rules religious doctors must offer patients an ‘effective referral’ for assisted dying, abortion

Physicians who object on moral grounds to providing health-care services such as assisted dying, abortion and birth control must offer their patients an “effective referral” to another doctor, Ontario’s highest court has ruled.

In a unanimous decision released Wednesday, the Court of Appeal for Ontario reaffirmed a lower court’s conclusion that it was a reasonable limit on the religious freedom of doctors to require them to connect their patients with willing providers of medical assistance-in-dying (MAID) and other contentious health services.

Vulnerable patients “seeking MAID, abortion, contraception and other aspects of sexual health care, turn to their family physicians for advice, care, and, if necessary, medical treatment or intervention,” Chief Justice George Strathy wrote.

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“Given the importance of family physicians as ‘gatekeepers’ and ‘patient navigators’ in the health care system, there is compelling evidence that patients will suffer harm in the absence of an effective referral.”

The Court of Appeal for Ontario is now the highest court in the country to have ruled on the thorny question of how the conscience rights of doctors should be balanced against the rights of patients to access publicly funded health services – a question that became more pressing after the legalization of assisted dying three years ago.

Around the time the federal law was enacted in June of 2016, the College of Physicians and Surgeons of Ontario (CPSO) – which licenses doctors and regulates the practice of medicine – adopted a MAID policy that made it clear that physicians who refused to provide assisted deaths were obligated to meaningfully connect their patients with doctors who would.

A year earlier, the CPSO had updated its human rights policy to add a broader effective referral requirement that was likeliest to apply in cases where religious doctors objected to providing abortion, contraception and medical care for transgender patients.

Groups representing more than 1,500 Christian, Catholic and anti-abortion doctors in Ontario challenged the CPSO’s policies in court, arguing that referring patients was the moral equivalent of presiding over assisted deaths and abortions.

“There are doctors out there who are faced with a decision to make between their conscience and their careers. We don’t feel anybody should be put in that type of position,” said Larry Worthen, the executive director of the Christian Medical and Dental Society of Canada, one of the groups that brought the legal challenge.

The others were the Canadian Federation of Catholic Physicians’ Societies and Canadian Physicians for Life. Five individual doctors also joined the challenge.

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The groups and doctors said they would be willing to provide patients with a general phone number or website for the provincial government’s MAID co-ordinating service, but they argued that to go beyond that would violate their faith.

“I don’t think the Court completely understood the implications” of effective referrals, Mr. Worthen added.

He said the Christian Medical and Dental Society of Canada and its counterparts have not yet decided whether to appeal Wednesday’s ruling to the Supreme Court of Canada.

Ramona Coelho, a family doctor in London, Ont., is still hopeful a solution can be found that would allow her to avoid formally referring MAID patients.

She is a practising Catholic whose work with refugees and other vulnerable patients has reinforced her opposition to presiding over – and referring for – physician-assisted death.

“I feel like this decision is going to exclude from mainstream medicine most people of faith,” Dr. Coelho said. “Almost all world religions, all their moral theologians agree that a referral creating that direct pathway is not permissible.”

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Nancy Whitmore, the registrar and chief executive officer of the CPSO, praised the Court for ensuring that all patients can access the care they need.

“Our effective referral policy ensures equitable access to health care, particularly on the part of the more vulnerable members of our society while respecting the rights of all of those involved,” Dr. Whitmore said by e-mail.

Shanaaz Gokool, the chief executive officer of the advocacy group Dying with Dignity Canada, said she was “thrilled” that Ontario’s top court dismissed the religious doctors’ appeal.

Dying with Dignity, which intervened in the case, supported the CPSO’s position that it would harm vulnerable patients to leave them with nothing more than an information number when they were trying to access a legal doctor-assisted death.

“We think this represents a real victory for patients’ rights to equitable access to health care in the province of Ontario,” Ms. Gokool said.

There were at least 2,614 medically assisted deaths in Canada between January 1 and Oct. 31, 2018, according to Health Canada’s most recent interim tally, released last month.

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