What responsibilities do clinicians who object to medical assistance in dying (MAID) have to patients who request it?
This question has been a subject of intense debate since the legalization of MAID in 2016. How we as a country answer that question will have major implications for Canadians’ ability to access their right to an assisted death.
Rules differ by jurisdiction
Doctors who, for moral or religious reasons, object to assisted dying are not obligated to provide it. But is it acceptable for those same clinicians to refuse patients who request assisted dying, or want more information about it, a referral to another provider?
Authorities in some provinces and territories have said yes. In Manitoba, for example, at a minimum, the patient should be given “timely access to a resource that will provide accurate information about medical assistance in dying.” That could mean giving the patient a telephone number, email address or website for a third-party health organization, leaving it up to the person to find a provider by themselves.
In Ontario, however, the provincial medical regulator has taken a different approach. In June 2016, the College of Physicians and Surgeons of Ontario (CPSO) approved its policy statement on medical assistance in dying. The guidelines require physicians who oppose assisted dying to provide patients who request it with what’s called 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 CPSO’s policy states. “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.”
Ontario court challenge
The CPSO’s policy has been the subject of a court challenge that could have significant implications for patient rights across the country. In June 2016, a group led by the Christian Medical and Dental Society of Canada (CMDSC) 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.” A panel of three Ontario Superior Court judges heard arguments in the case in June 2017.
In their January 2018 decision, the judges ruled that the CPSO’s policy is legally justified, as it protects patients who request MAID from being abandoned by their clinicians. “The evidence in the record establishes a real risk of a deprivation of equitable access to health care, particularly on the part of the more vulnerable members of our society, in absence of the effective referral requirements of the policy,” wrote Justice Herman J. Wilton-Siegel in the unanimous ruling. The Court of Appeal of Ontario upheld the divisional court's ruling in a decision released in May 2019.
Dying With Dignity Canada’s role
We at Dying With Dignity Canada continue to monitor — and speak out on — the impacts of denying suffering people an effective referral for assisted dying. The vulnerable people and families who contact us through our Personal Support Program are essential to our understanding of this issue, as are the healthcare professionals who are involved in assessing and providing for assisted dying. Using these insights, we intervened in support of the defence in the CPSO court challenge, and plan to do so again when the case goes to appeal.