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When Courts Constrain Conscience

The Ontario Appeal Court ruling forcing medical professionals to closely participate in health care they deem unethical undermines Canada’s Charter and affronts the Universal Declaration of Human Rights, argues bioethicist Christina Lamb.

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When Courts Constrain Conscience May 27, 2019  |  By Christina Lamb
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Ontario’s highest court recently upheld the policy requiring Ontario physicians to provide referrals for health-care services that they consider immoral or unethical. The court substantially endorsed the decision of the lower court in this case. In brief, both courts found obligatory referrals violate the religious freedom of physicians who conscientiously object, but the violation is justified for reasons such as the right of equitable access to lawful health care services. 

In Canada, freedom of conscience is specifically protected by the Charter of Rights and Freedoms and is upheld – in the form of a right to conscientious objection – by national regulatory bodies across Canadian health care disciplines. On the international stage, freedom of conscience is guaranteed in article 19 of the Universal Declaration of Human Rights. 

The popular rationale for obligatory referrals is that they exempt health care professionals from directly performing health-care services they perceive to be unethical. In reality, however, referrals require health-care professionals to provide information that will ensure patients can obtain these services ­– or even connect their patients to physicians who are willing to provide them. When health care professionals provide referrals, they are closely participating in the unethical practice.

Referrals prevent health care professionals from having comprehensive discussions with their patients to ensure that all courses of action are available. If a physician conscientiously objects to a patient’s request for a service but is obliged to refer, the physician cannot provide the patient with the full range of options. More specifically, discussion of the option to not follow through with the request is precluded. 

Rather, physicians would be required to provide the patient with all the information available on the care requested by the patient and, regardless of the physician’s professional, clinical judgement, would have to provide that patient with a direct referral to procuring that service. The requirement is an ethical problem. 

Consider the physician who has an adult patient requesting information about assisted death. Physicians who ethically disagree with ending patients’ lives should be able to have a comprehensive conversation including ascertaining a patient’s reasons for the request and providing them with an understanding of all the options the physician considers relevant and ethically advisable. 

If a physician believes that assisted death is not an appropriate clinical option, they can openly and compassionately discuss why this is the case, and should not be required to then provide the patient with information that would connect them to another physician willing to euthanize them. The physician can clearly convey that she has fulfilled her professional obligations to inform patients of all possible care options, up to and including the options they do not find clinically or ethically relevant. Here, the patient is not denied care but is informed of all options and is left to make the autonomous decision about what to do, which would be the same outcome in all care requests. If a physician does not think the request is in the patients’ best interest, they may autonomously find another physician willing to euthanize them, which resembles a patient seeking a second opinion on her own initiative. 

Obligatory referrals also force health care professionals to provide optional care. In Canada, services such as euthanasia and abortion are legal or not punishable by law, respectively. Canadians can seek out these options if they wish. All health-care professionals are correspondingly free to offer these services but not required to provide them, just as Canadians are not required to seek them out. When health-care professionals are required to refer to optional services, it is a disproportionate restriction on their liberty to act as health-care professionals in Canada, as well as on their fundamental human rights to conscience and freedom from discrimination. Obligatory referrals unfairly discriminate against health care professionals. 

Should the case on obligatory referrals reach the Supreme Court of Canada, the Court would do well to reconsider the decisions from Ontario to unduly restrict the physician’s rights to conscience and religion which, in this case disproportionally favoured patient’s access to optional care over provider’s ethical disclosure of all care options. Such a decision would go a long way to repairing the damage to the human rights of Ontario physicians. 

Christina Lamb, RN,PhD, Bioethicist, is an Assistant Professor in the Faculty of Nursing, University of Alberta.


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