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CMDS et al v. College of Physicians and Surgeons of Ontario [2017-2019]

23 January 2019
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Update (Jan 23, 2019) -- On January 21-22, the hearing took place in the appeal of the legal challenge to the Ontario requirement that doctors provide effective referrals for procedures they object to on grounds of conscience, such as euthanasia and assisted suicide. The EFC was granted leave to intervene before the the Ontario Court of Appeal. Here is an update from EFC President, Bruce Clemenger, after the two-day hearing:

Background

The EFC participated in a College of Physicians and Surgeons of Ontario (CPSO) consultation on a draft policy in February 2015. In its communication that month to the CPSO, the EFC underlined that a referral is a professional recommendation for a particular course of action and is understood by some doctors to be the moral equivalent of providing the treatment itself. The EFC urged the CPSO to respect and protect the freedom of conscience of physicians and delete the requirement to provide a referral.

The CPSO updated its Professional Obligations and Human Rights policy in March 2015. The policy states, “Where physicians are unwilling to provide certain elements of care for reasons of conscience or religion, an effective referral to another health-care provider must be provided to the patient…. Physicians must provide care in an emergency, where it is necessary to prevent imminent harm, even where that care conflicts with their conscience or religious beliefs.”

The CPSO passed its Medical Assistance in Dying policy in June 2016. The policy specifies that physicians who object to providing medical assistance in dying for reasons of conscience or religion must provide an effective referral.

The legal challenge to the CPSO policies was launched by five doctors and several organizations, including the Christian Medical and Dental Society of Canada, an EFC affiliate. The EFC is a co-intervener in this case with the Assembly of Catholic Bishops of Ontario and Christian Legal Fellowship. The case was first heard in 2017, and an appeal of that decision was heard in January 2019.

2017 Case: Our legal factum submitted in April 2017 argues that the CPSO policies violate the foundational and constitutionally protected freedom of conscience and religion. It is in the public interest to protect the freedom of conscience of health-care professionals. This case was heard by the Ontario Superior Court of Justice June 13-15, 2017, and a transcript of our oral presentation is available at the CLF blog. A ruling was released Jan. 31, 2018 and the EFC published a response the same day.

2019 Case: We were granted intervenor status in the appeal of this case and we filed our factum on Oct. 15, 2018. The appeal was heard January 21-22, 2019 and we now await a decision.

Related materials

→ Lawyer Derek Ross summarizes the issues in the appeal case in a Three Questions Interview from December 13, 2018
→ See TheEFC.ca/Concience to learn about provincial letter-writing campaigns on the issue of conscience for healthcare professionals and to see a letter that the EFC sent in support of a new federal private member's bill aimed at protecting conscience (November 2018)
→ Lawyer Albertos Polizigopoulos summarized the issues in the original case in a Three Questions Interview on June 6, 2017
→ EFC Vice-President David Guretzki tackled the issue on 100 Huntley Street on June 13, 2017 (skip to minute 20)
→ Listen to a June 13, 2017 Lighthouse News podcast to hear an interview on the issue with EFC President Bruce Clemenger
→  Read the EFC’s response to the lower court decision from Jan. 31, 2018.