On the question of whether the policies in question were “prescribed by law,” the court found that where a government policy is authorized by statute and has set out a general norm or standard that is meant to be binding and is sufficiently accessible and precise, the policy is legislative in nature and constitutes a limit that is “prescribed by law.”
The court went on to find that the lower court did not err in identifying the purpose of the effective referral requirements as “the facilitation of equitable patient access to health care services.” The policies, in the eyes of the court, struck an appropriate balance in identifying a purpose that is more specific than the “animating social value” of the policies, but broader than a “virtual repetition” of the effective referral requirements. The Court of Appeal also agreed with the Divisional Court that, as a matter of logic and common sense, requiring objecting physicians to give an effective referral for MAID, abortion or reproductive health care services will promote equitable patient access to those health care services.
On the issue of “minimum impairment,” the Court of Appeal found that alternatives identified by the appellants were flawed. While less impairing of the appellants’ rights, they were focused on their rights and not on the objective of the effective referral requirements or the interests of vulnerable patients. The evidence showed that the appellants’ proposed “generalized information” model, like other self-referral models, would impair equitable access to health care rather than promote it.
In terms of the balancing of society’s interests with those of individuals, the court found that the policies’ requirements enhanced equitable access to MAID, abortion and other services, and also reduced or eliminated barriers, delays, anxiety and stigmatization of vulnerable patients.
On the other hand, the court accepted that deleterious effects included the burden and anxiety associated with a choice between a physician’s deeply held religious beliefs and complicity in acts they regarded as sinful. In the end, the court agreed with the Divisional Court’s conclusions that patients should not bear the burden of managing the consequences of physicians’ religious objections. It recognized that the issues raised in the proceeding presented difficult choices for religious physicians who objected to the policies, but contrary to the argument regarding the need to leave practice, felt that objecting physicians did have choices.
In the result, the Ontario Court of Appeal held that the policies struck a reasonable balance between patients’ interests and physicians’ Charter-protected religious freedom. The policies were “… reasonable limits prescribed by law that are demonstrably justified in a free and democratic society.”
It would not be surprising if one or more of the appellants sought leave to appeal the Court of Appeal decision to the Supreme Court. The issue is one common to all jurisdictions in Canada.
In terms of the impact on Alberta physicians, at present there is no similar formal requirement for an “effective referral” in Alberta; however, there are certain guidelines and standards that need to be followed when there is a referral.
Physicians in Alberta who receive a request for MAID but who decline for religious reasons must ensure that the patient has timely access to Alberta Health Services’ “central coordination service.” There is, however, no requirement of providing “effective referrals.” Thus in Alberta, the onus remains on the patient to find a MAID provider, not with the physician.
Covenant Health has a number of links on its website to various policies and procedures associated with patients in Covenant facilities looking for MAID. Readers, however, may remember the news reports from a few months ago regarding Covenant’s reluctance to allow MAID assessments in its facilities.
The College of Physicians & Surgeons of Alberta website has several links to various PDFs that outline guidelines for referrals.
CPSA Standards for Referrals
CPSA Establishing the Physician-Patient Relationship
CPSA Transfer of Care
Alberta Health Services QURE (Quality Referral Evolution) Quality Referral Pocket Checklist
References available upon request.
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