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Another setback in conscience fight

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  • May 22, 2019

An Ontario Court of Appeal ruling that upheld limits on health care workers’ conscience rights shows the need for governments legislation to protect those who can’t be part of a procedure that runs up against their moral or religious beliefs, said the executive director of Canadian Physicians for Life.

“What is required is a system approach that the government comes in and says access to these services can be provided through a system-wide infrastructure and it doesn’t require an individual physician to be an access point,” said Nicole Scheidl, whose organization was one of three, along with five doctors, that launched an appeal of an Ontario divisional court ruling limiting conscience rights in the health sector.

Scheidl was reacting to a May 15 ruling that upheld a College of Physicians and Surgeons of Ontario requirement that doctors in the province must give referral for medical services such as assisted dying and abortion that conflict with their moral or religious beliefs. In a 74-page ruling, a three-judge panel unanimously agreed with a 2018 divisional court decision that upheld the referral requirement. The divisional court found the policy infringes upon doctors’ religious freedom, but said the benefits to the public outweigh the cost to physicians.

The appeals’ court said “the issues raised in this proceeding present difficult choices for religious physicians who object to the policies, but they do have choices.” The CPSO policies “represent a compromise,” the court wrote.

“They strike a reasonable balance between patients’ interests and physicians’ Charter-protected religious freedom.”

“The court has recognized the importance of ensuring patients get access to the care they need,” said CPSO CEO Dr. Nancy Whitmore. “Our effective referral policy ensures equitable access to health care.”

Scheidl said the decision, while disappointing, was not a surprise “given the way the courts have ruled on religious freedom in this country.” She said the court refused to deal with conscientious objection “based solely on conscience,” instead basing it on religious grounds.

“What they are saying here in this decision is that people with religious convictions are a barrier and impediment to access when in reality they’re the ones who have been out in the forefront, giving people access to health care who never had access before,” said Scheidl.

What is needed, she said, is legislation that “makes room for everyone in health care.”

Dr. Ryan Wilson, president of Canadian Physicians for Life, is concerned the decision will force some physicians into an impossible position, and in turn affect patient care.

“Ultimately it is patient care that suffers as our doctors will retire early, relocate or change fields,” said Wilson. “For many, their religious and conscience rights are being violated and they won’t be able to practise medicine in Ontario.”

In the end, he said, everyone is focused on the same thing — good patient care.

“We think that the province can focus their efforts based on access but it shouldn’t fall on the physician,” said Wilson.

Deacon Larry Worthen, executive director of the Christian Medical and Dental Society (CMDS), one of the organizations that launched the appeal, said there are ways to keep from compromising conscience rights. There is plenty of information a patient seeking an assisted death or abortion can access, programs like Telehealth — a free, confidential service dispensing health advice or information — that wouldn’t force someone to violate their moral framework.

Scheidl did find some positives out of the court’s decision in that “they boxed the College of Physicians and Surgeons in in saying that it’s not a matter of professional misconduct,” though Worthen said it could still be the basis of complaint, however frivolous it may be.

Wilson said the organizations will need time to digest the ruling and that an appeal “is not off the table.”

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