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Ontario court rules doctors who oppose assisted death must refer patients

Ontario’s Divisional Court said the referral rule was a reasonable limit on doctors’ freedom of religion because it protects vulnerable patients from harm.

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In the first Canadian test of conscience rights for doctors who oppose assisted death, an Ontario court has upheld regulations requiring the objectors to refer their patients to physicians willing to perform the procedure.

Groups representing 4,700 Christian doctors had challenged Ontario's regulations requiring the referrals, saying that making such a referral was morally equivalent to participating in an assisted death.

But Ontario's Divisional Court said the referral rule was a reasonable limit on doctors' freedom of religion because it protects vulnerable patients from harm. And those patients, it said, have a constitutional right to equitable access to publicly funded health care.

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Without the policy of "effective referral," equitable access would be "compromised or sacrificed, in a variety of circumstances, more often than not involving vulnerable members of our society at the time of requesting services," Justice Herman Wilton-Siegel wrote in the 3-0 ruling on Wednesday.

The ruling comes as the faith-based medical community struggles to find a middle ground in the era of assisted dying, which has made it more difficult for some patients to obtain an assisted death in a timely manner. Some hospitals run by Catholic, Jewish or other religious groups have declined to offer assisted dying, transferring such patients to other facilities.

The preamble to the federal law on medical assistance in dying says doctors have a right to freedom of conscience and are not required to perform or assist in the provision of an assisted death. But Ontario's regulations say doctors must provide an "effective referral." The Supreme Court paved the way for assisted death by ruling three years ago that individuals suffering irremediably have a right to control their passage into death.

Ramona Coelho, a family practitioner in London, Ont., said the ruling puts her in a bad position. "I couldn't bring myself in good conscience to do it," she said in an interview when asked about referring patients to willing physicians.

"I'm not saying patients shouldn't have access, but when we live in a pluralistic society, can't we do it in a way that we don't make people feel compromised?"

Shanaaz Gokool, chief executive of Dying With Dignity, applauded the ruling.

"It's a stunning decision that really puts the rights of the most vulnerable residents of this province ahead of the rights of clinicians" who object on religious grounds. "It's a fair balance of rights."

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Ontario has set up a co-ordination centre to help patients seek physicians to assist in death. But some patients, Ms. Gokool said, are not healthy enough to speak and don't have family or a support team that can contact the centre; they may therefore need their doctor to make the referral.

Steven Bodley, president of the College of Physicians and Surgeons of Ontario, said in a statement that the goal of the referral policy is "to protect the public, prevent harm to patients and facilitate access to care for patients in our multicultural, multifaith society, by guiding all physicians on how to uphold their professional and ethical obligations of non-abandonment and of patient-centred care within the context of Ontario's public health-care system." He described the ruling as a victory for vulnerable patients.

As of Dec. 31, 1,030 patients had received an assisted death in the 18 months since the new law took effect.

The physicians who challenged the rule had told the court that other provinces and other countries have policies that do not require direct or indirect referrals, but Justice Wilton-Siegel disagreed, saying other jurisdictions use different wording to largely the same effect.

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