Day 2: Court challenge to the CPSO’s policy of effective referral for assisted dying

Dying With Dignity Canada was back in court on Wednesday, June 14 for the second day of hearings in the court challenge to the College of Physicians and Surgeons of Ontario’s (CPSO) effective referral policy.

While so much of the focus on the first day of hearings was placed on the physicians, the CPSO immediately put the focus back on the person — the patient whose right to choice is at stake. Lisa Brownstone, a lawyer for the College, offered opening remarks that shifted attention to the vulnerable patients who will be abandoned if the applicants, led by the Christian Medical and Dental Society of Canada, are successful.

Brownstone reminded the court that patients are not all well-educated people who live in cities and have the support of their families. Patients can be poor, socially isolated, non-English speaking, and living in rural and remote communities — and the list goes on.

The patient could be a scared teenage girl who is pregnant, a person with a hereditary disease who does not want to pass it on to further generations or a person with ALS who wants to die with dignity, Brownstone said, touching on the three healthcare services that are most contentious for the applicants (contraception, abortion and medical assistance in dying).

The applicants are challenging the CPSO’s policy that requires physicians who oppose assisted dying to refer patients who request it to a provider or agency that can help. They argue that this policy contravenes their right to freedom of religion and conscience.

In its regulation of the profession, the College has an essential duty to serve and protect the public’s interests, Brownstone explained. Providing access to healthcare services that are “societally accepted, clinically appropriate and publicly funded” is essential to a patient’s dignity and autonomy, she added.

“Patients have the right to expect that their physician will help them navigate the system and not impose barriers,” she said. “Physicians have the power, the expertise and the obligation to advocate, navigate and provide patient-centred care.”

Brownstone also clarified that, contrary to statements made by the applicants, the CPSO’s policy does not mean that doctors must refer patients directly to the service in question, just to a non-objecting physician or agency.

Practitioners “cannot turn [their backs] on a patient who seeks a service that the physician judges […] to be, in their words, ‘morally repugnant,’” she added. When that occurs, there is “real harm to a real patient.”

Ultimately, the policy is rooted in the College’s mandate to serve the public.

“The CPSO is trying to protect patient choice and ensure that a physician’s morality doesn’t come in the way of putting the patient first,” Brownstone said.

The hearings will continue on Thursday, June 15, and Dying With Dignity Canada’s lawyers are expected to present oral arguments in the morning or early afternoon.

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