Day 3: Court challenge to the CPSO’s policy of effective referral for assisted dying

Dying With Dignity Canada made oral arguments Thursday during the third and final day of hearings into the court challenge against the College of Physicians and Surgeons of Ontario’s (CPSO) policy on effective referral for assisted dying.

Fundamentally, the case is about reconciling a physician’s right to conscientious objection with a patient’s right to care. The CPSO’s rule on effective referral means that Ontario doctors who oppose assisted dying must, in a timely manner, provide individuals who request it with a referral to a healthcare provider or agency that can handle the request. However, a group of doctors led by the Christian Medical and Dental Society of Canada is suing to have the effective referral rule withdrawn because they believe it infringes upon their right to freedom of religion.

DWDC supports the effective referral policy, which aims to ensure that doctors who conscientiously refuse to provide assisted dying don’t impede their patients’ right to choice. Our organization, represented by lawyer Kelly Doctor of the Toronto firm Goldblatt Partners LLP, spoke out in court in support of the defence, arguing that the effective referral rule is a necessary safeguard against violations of Ontarians’ patient rights.

In her 20-minute presentation, Doctor reminded the court that the Ontarians who are eligible to access medical assistance in dying (MAID) under federal law are often among the province’s most physically compromised and vulnerable patients. She cited the affidavit of a physician who had provided assisted dying and testified that two of his patients would have been physically unable to call or email a referral service by themselves. Their ability to access MAID depended on their doctors’ willingness to connect them, directly or indirectly, with the care they were seeking.

The plaintiffs have argued that people who are immobilized can rely on family and friends to access a referral line or website for information about MAID. However, as Doctor pointed out, Canadians have a right to keep information about their medical decision-making private. Thus, forcing them to rely on family members, friends or other caregivers to access MAID would put their right to privacy at risk.

Removing the referral requirement, then, would threaten patients’ right to privacy, she said. Ontarians shouldn’t be required to tell their family, friends or caregivers about their medical decisions in order to gain access to care.

Referring a patient to a willing provider or a referral service also doesn’t mean that the objecting physician endorses MAID, nor does it mean that the patient will ultimately access life-ending treatment, Doctor noted. "A referral is about giving the person a choice."

The Attorney General of Ontario, the Canadian Civil Liberties Association and the Canadian HIV/AIDS Legal Network also delivered oral arguments on Thursday. The plaintiffs’ lawyer then took the opportunity to respond to the arguments put forward by the defence.

Now, the three judges examining the case will go into deliberation. It’s not known when they’ll arrive at a decision. Of course, we will post the ruling to our blog as soon as it’s available.

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