Advice to the Profession: Professional Obligations and Human Rights

The Professional Obligations and Human Rights policy articulates physicians’ professional and legal obligations to provide health services without discrimination. The key values of professionalism articulated in the College’s Practice Guide — compassion, service, altruism and trustworthiness — and physicians’ obligations under the Ontario Human Rights Code form the basis for the expectations in the policy. This Advice document is intended to help physicians interpret and understand the College’s expectations.

Effective Referrals: What Physicians Need to Know

The College recognizes that physicians have the right to limit the health services they provide for reasons of conscience or religion. However, physicians’ freedom of conscience and religion must be balanced against the right of existing and potential patients to access care.

When physicians limit the health services they provide for reasons of conscience or religion, the College requires that they provide patients with an ‘effective referral’.

What is an effective referral?

Physicians make an effective referral when they take positive action to ensure the patient is connected in a timely manner to a non-objecting, available, and accessible physicians, other-health-care professional, or agency that provides the service or connects the patient directly with a health-care professional who does.

The objective is to ensure access to care and respect for patient autonomy. An effective referral does not guarantee that a patient will receive a treatment or signal that the objecting physician endorses or supports the treatment. An effective referral also does not necessarily require that a referral in the formal clinical sense be made and does not require the physician to assess or determine whether the patient is a suitable candidate or eligible for the treatment to which the physician objects.

An effective referral involves taking the following steps:

1. The physician takes positive action to connect a patient with another physician, healthcare provider, or agency. The physician can take these steps themselves or assign the task to someone else, so long as that person complies with the College’s expectations.
2. The effective referral must be made to a non-objecting physician, healthcare provider, or agency that is accessible and available to the patient. The physician, healthcare provider, or agency must be accepting patients/open, must not share the same religious or conscience objection as the physician making the effective referral, and must be in a location that is reasonably accessible to the patient or accessible via telemedicine where appropriate.
3. The effective referral must be made in a timely manner, so that the patient will not experience an adverse clinical outcome due to a delay in making the connection. A patient would be considered to suffer an adverse outcome due to a delay if, for example, the patient is no longer able to access care (e.g., for time sensitive matters such as emergency contraception, an abortion, or where a patient wishes to explore medical assistance in dying), their clinical condition deteriorates, or their untreated pain or suffering is prolonged.

What are some examples of an effective referral?

The following are examples of the steps physicians can take to ensure their patient is connected in a timely and appropriate manner. The examples provided are not exhaustive and the steps needed to ensure a connection is made depend on the patient’s circumstances. Physicians will need to use their judgement, considering the patient’s particular circumstances, when determining how to meet this obligation.

The physician or designate contacts a non-objecting physician or non-objecting healthcare professional and arranges for the patient to be seen or transferred¹.

The physician or designate connects the patient with an agency charged with facilitating referrals for the healthcare service, and arranges for the patient to be seen at that agency. For instance, in the medical assistance in dying (MAID) context, in appropriate circumstances an effective referral could include the physician or designate contacting Ontario’s Care Coordination Service (CCS). The CCS would then connect the patient with a willing provider of MAID-related services.

A practice group in a hospital, clinic or family practice model identifies patient queries or needs through a triage system. The patient is directly matched with a non-objecting physician in the practice group with whom the patient can explore all options in which they have expressed an interest.

A practice group in a hospital, clinic or family practice model identifies a point person who will facilitate referrals or who will provide the healthcare to the patient. The objecting physician or their designate connects the patient with that point person.

What is the basis for physicians’ right to limit the health services they provide for reasons of conscience or religion and why has the College set out an effective referral requirement?

The Canadian Charter of Rights and Freedoms (the “Charter”) protects the right to freedom of conscience and religion.² Although physicians have this freedom under the Charter, the Supreme Court of Canada has determined that no rights are absolute and that there is no hierarchy of rights; all rights are of equal importance.³ The right to freedom of conscience and religion can be limited, as necessary, to protect public safety, order, health, morals, or the fundamental rights and freedoms of others.⁴

Where physicians choose to limit the health services they provide for reasons of conscience or religion, this may impede access to care in a manner that violates patient rights under the Charter and Code.⁵ Should a conflict of rights arise, the aim of the courts is to respect the importance of both sets of rights to the extent possible.

The balancing of rights must be done in context.⁶ In relation to freedom of religion specifically, courts will consider the degree to which the act in question interferes with a sincerely held 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 less direct the impact on a religious belief, the less likely courts are to find that freedom of religion is infringed.⁷ Conduct that would potentially cause harm to and interfere with the rights of others would not automatically be protected.⁸ The Court of Appeal for Ontario has confirmed that where an irreconcilable conflict arises between a physician’s interest and a patient’s interest, physicians’ professional obligations and fiduciary duty require that the interest of the patient prevails.⁹

The College has outlined expectations, set out below, for physicians who have a conscientious or religious objection to the provision of certain health services including that they make an effective referral. These expectations accommodate the rights of objecting physicians to the greatest extent possible, while ensuring that patients’ access to healthcare is not impeded.

Other Frequently Asked Questions

What is the duty to accommodate and what does this duty look like?

The legal, professional, and ethical obligation to provide services free from discrimination includes a duty to accommodate. Accommodation is a fundamental and integral part of providing fair treatment to patients. The duty to accommodate reflects the fact that each person has different needs and requires different solutions to gain equal access to care.

Examples of accommodation may include: enabling access for those with mobility limitations, permitting a guide dog to accompany a patient into the examination room, ensuring that patients with hearing impairment can be assisted by a sign-language interpreter, being considerate of older patients who may face unique communication barriers, providing reasonable flexibility around scheduling appointments where patients have family-related needs,¹⁰ ensuring signage reflects diverse family configurations (e.g., families with two mothers or two fathers), and/or creating forms to accommodate patients’ gender identity and expression.

The policy discusses physicians’ legal duty to accommodate the needs of patients up to the point of undue hardship. When would an accommodation be considered to impose undue hardship?

An accommodation is considered to cause undue hardship if it imposes excessive costs, or gives rise to health or safety concerns.

The Ontario Human Rights Commission has stated that:

• ‘Costs’ include the actual, present financial cost of carrying out an accommodation measure, as well as any reasonably foreseeable costs that may arise.
• ‘Health and safety risks’ include risks to the person requesting the accommodation, as well as to other employees and/or the general public.

Determinations of whether the duty to accommodate has been satisfied and whether an accommodation imposes an undue hardship are made by the Ontario Human Rights Tribunal and the courts.

For further detail, physicians are advised to consult the policies of the Ontario Human Rights Commission, including Policy and Guidelines on Disability and the Duty to Accommodate.

The policy says that “physicians must not promote their own religious beliefs when interacting with patients, or those seeking to become patients, nor attempt to convert them.” What is meant by “promoting religious beliefs”? Does this mean that physicians can never discuss religious or spiritual beliefs with their patients?

No. The College recognizes that patients’ spiritual and religious beliefs can play an important role in the decisions they make about health care, and can offer comfort if patients are faced with difficult news about their health. It is appropriate for physicians to inquire about and/or discuss patients’ spiritual and religious beliefs when those are relevant to patient decision-making, or where it will enable the physician to suggest supports and resources that may assist the patient.

However, as noted in the policy, physicians must not attempt to convert patients to their own religion, imply the physician’s religion is superior to the patient’s beliefs (spiritual, secular or religious), or otherwise make personal moral judgments about the patient’s conduct that are based in the physician’s religion.

What will happen if the College receives a complaint that a physician has not complied with this policy?

Physicians must comply with their legal obligations and the expectations set out in the Professional Obligations and Human Rights policy.

If the College receives a complaint that a physician has not complied with policy, the complaint will be investigated. A panel consisting of physicians and members of the public will consider the circumstances of the case and evaluate the physician’s conduct as against the policy expectations. The College will consider any concerns regarding the professional obligations set out in this policy in accordance with its duty to serve and protect the public interest.

If physicians do not comply with their legal obligations under the Ontario Human Rights Code, they may be the subject of a separate complaints process: a complaint to the Ontario Human Rights Commission and Tribunal. This process is separate from the College’s complaints processes.

Endnotes

^1. A transfer of care in this situation would be specific to the care to which the physician objects. A transfer is not equivalent to ending the physician-patient relationship. Physicians must not terminate the physician-patient relationship simply because the patient wishes to explore a care option to which the physician has a conscientious objection.

^2. Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11, s 2(a).

^3. Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835 at p 839.

^4. R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295 at para 95.

^5. R. v. Morgentaler, [1988] 1 S.C.R. 30 at pp 58-61; Human Rights Code, R.S.O. 1990, c. H. 19.

^6. Ontario Human Rights Commission, Policy on Competing Human Rights, (Ontario: Jan 26, 2012).

^7. Syndicat Northcrest v. Amselem, [2004] 2 S.C.R. 551 at paras 59-61.

^8. Syndicat Northcrest v. Amselem, [2004] 2 S.C.R. 551 at paras 59-61.

^9. See para. 187 Christian Medical and Dental Society of Canada v. College of Physicians and Surgeons of Ontario, 2019 ONCA 393.

^10. Ontario Human Rights Commission, Submission Regarding College of Physicians and Surgeons Policy Review: Physicians and the Ontario Human Rights Code, (Ontario: August 1, 2014).