Get the facts: Court challenge to the CPSO’s policy on effective referral

A court challenge filed in Ontario could have broad implications for patient access to assisted dying across Canada.

New rules issued by the College of Physicians and Surgeons of Ontario (CPSO) have become a flashpoint in the debate over what responsibilities doctors have to patients who request physician-assisted dying.

In June 2016, the CPSO, which regulates the practice of medicine in the province of Ontario, released its updated Medical Assistance in Dying policy. The document sets out guidelines for how doctors in Ontario must treat requests for assisted death.

Most of the procedural rules laid out in the policy are virtually identical to those that are in place in the other provinces and territories. The CPSO’s policy on patient referrals, however, has attracted the attention of the national news media and is now the target of a legal challenge launched by a coalition of doctors who oppose physician-assisted dying.

What is effective referral, and why is it so important?

Doctors who, for moral or religious reasons, object to assisted dying are not obliged to provide it — the Supreme Court’s decision in Carter v. Canada makes this perfectly clear.

But is it acceptable for those same doctors to refuse patients who request assisted dying, or want more information about it, a referral to another provider? We don’t think so. Sick and dying Ontarians generally do not have the wherewithal to strike out on their own and find a doctor who is willing to help them with their request. In effect, refusing these individuals a referral could deny them rightful access to a peaceful death.

Fortunately, the CPSO has taken a powerful stand against patient abandonment, requiring objecting doctors to provide an “effective referral” to patients who request assisted dying. In its Medical Assistance in Dying policy, the College defines what constitutes an effective referral:

“An effective referral means a referral made in good faith, to a non-objecting, available, and accessible physician, nurse practitioner or agency. The referral must be made in a timely manner to allow the patient to access medical assistance in dying. Patients must not be exposed to adverse clinical outcomes due to delayed referrals.”

The CPSO says, in its view, a physician who gives an effective referral is not “assisting” in the provision of medical assistance in dying. Rather, an effective referral “ensures access to care and demonstrates respect for patient autonomy.”

Court challenge filed

The CPSO’s policy is now the subject of a court challenge that could have huge implications for patient rights across the country. In June 2016, a group led by the Christian Medical and Dental Society of Canada filed a lawsuit against CPSO’s assisted dying guidelines, and in particular, its rules on effective referral. In a filing to the Superior Court of Justice of Ontario, the plaintiffs claim that requiring an objecting doctor to provide an effective referral is “unconscionable” and represents a “violation of that physician’s Charter right to freedom of conscience and/or freedom of religion.” The same group has filed a challenge to the CPSO’s Professional Obligations and Human Rights policy, which requires doctors to provide an effective referral after receiving a request for any procedure to which they conscientiously object, not just assisted dying.

In response to the latest challenge, the CPSO says it will defend its policy on referrals, arguing that it does not require doctors to actively participate in medical assistance in dying, and thus respects their Charter rights. “An effective referral does not foreshadow or guarantee an outcome,” a CPSO spokesperson told The Globe and Mail after the challenge was filed. In addition, a CPSO fact sheet from June 2016 states that “an effective referral does not guarantee a patient will receive a treatment, or signal that the objecting physician endorses or supports the treatment. It ensures access to care and demonstrates respect for patient autonomy.”

Dying With Dignity Canada’s view

We at Dying With Dignity Canada support the CPSO’s policy on effective referral and believe it respects the conscience rights of physicians while protecting Ontarians’ right to compassionate care. We plan to support the CPSO in its efforts to maintain its policy on effective referral. A successful defence would send a strong message — that abandoning suffering patients in their time of greatest need is cruel and morally indefensible.