Thu 19 Feb 2015
You will likely have heard of the College of Physicians and Surgeons of Ontario’s (CPS) draft human rights policy, which would (in its current form) restrict physicians’ rights to freedom of conscience and religion. The new policy would require physicians with moral or religious objections to certain procedures (like abortion or euthanasia) to nevertheless facilitate such procedures by referring patients to a doctor willing to conduct such procedures—effectively forcing dissenting physicians to act in ways contrary to conscience, even though these rights are guaranteed by the Canadian Charter of Rights and Freedoms.
The CPSO is accepting comments from the public on the draft policy until February 20, 2015—which is tomorrow (Friday). I encourage you to make your concerns known by visiting their website here. To that end, I’m posting below the letter I have sent the CPSO. Feel free to draw attention to some of the same issues in your own letters.
The College of Physicians and Surgeons in Saskatchewan (CPSS) recently published a similar draft policy. I’ll be adapting my letter to the CPSO accordingly, and sending one to them as well. I hope you will too. You can contact the CPSS at email@example.com.
An open letter to the CPSO on their draft human rights policy
To whom it may concern:
I am writing to express my deep concern over the draft human rights policy released by the College of Physicians and Surgeons of Ontario in late 2014. As it currently stands, the policy would compel physicians to act contrary to their consciences, forcing countless doctors to provide services, or facilitate the provision of services, which they consider wrong for moral or religious reasons.
This is reprehensible.
Not only does such a policy ignore the basic rights of physicians, it also undermines confidence in the medical system at large. By forcing physicians to act in ways they consider immoral and unethical, the CPSO signals to wider Canadian society that it is not concerned about the personal integrity of its members. In fact, it suggests the CPSO considers personal integrity something to be discouraged among physicians.
In Canada, we are privileged to enjoy a number of rights and freedoms. I am pleased to see the CPSO committing itself to upholding these rights by producing a draft human rights policy. I am aghast, however, to see that a document purportedly devoted to respecting these rights nevertheless severely undermines the rights of physicians.
The draft policy correctly notes that the Canadian Charter of Rights and Freedoms protects physicians’ right to freedom of conscience and religion, but it is clear that the policy fails to appreciate the full implications of this right. Physicians ought not be forced to refer patients for treatments that the physicians, for reasons of conscience or religion, find objectionable. To require otherwise is to make the objecting physician a party to the treatment he finds objectionable
It’s all very good to say that physicians have the right to freedom of religion and conscience, but it must be further recognized that these freedoms apply not only to thought but also to action. It is not enough to say “Alright, you may believe such and such. You do not need to perform the act yourself, but you must refer patients to someone who will.” If, for example, a physician is opposed to abortion or assisted suicide for reasons of conscience or religion, forcing them to refer a patient for such a procedure impinges directly on the physician’s freedom. The physician will understand herself morally culpable for the final act, in that she facilitated its being carried out. She will have been forced to act in a way contrary to conscience.
As the Nova Scotia Supreme Court recently reminded us, and as the CPSO’s draft policy itself notes, rights in Canada are not hierarchical. When the rights of one individual come into competition with the rights of another, they are to be balanced. “If there are competing rights the issue is whether there are alternative measures by which both rights can be accommodated,” Justice Jamie Campbell writes in his judgment on TWU vs. NSBS. “That involves a consideration or whether one right has been disproportionately affected or the other disproportionately privileged.”
It seems clear that, if the CPSO adopts its draft policy without significant alteration, then the rights of physicians to freedom of conscience and religion will be disproportionately affected—and thus, that their freedom will be infringed upon. As Justice Campbell explains, “An infringement is made out when the claimant sincerely maintains a belief or practice that has a nexus with religion, and the impugned measure interferes with the claimant’s ability to act in accordance with those beliefs in a way that is more than trivial or insubstantial. Trivial or insubstantial interference is interference that does not threaten the belief or conduct.”
Requiring physicians to facilitate a treatment they consider morally objectionable, perhaps even evil, is neither trivial nor insubstantial. Consequently, the draft policy as it stands infringes upon physicians’ rights.
The CPSO should rewrite its draft policy to more clearly protect the freedoms of physicians, including their right to act in accordance with conscience in choosing not to refer patients for treatments they find morally objectionable.
Sincere good wishes,