Doctors' right to refuse to provide treatment uncertain

Toronto health lawyer Elyse Sunshine says three Ottawa doctors who distributed letters to patients saying they won't prescribe artificial birth control because of their religious values have highlighted how more work is needed to clarify the law on whether physicians should be permitted to refuse treatments for their beliefs.

"And while everyone has to comply with Ontario Human Rights Code, the law is not entirely clear," she tells

Sunshine, partner at Rosen Sunshine LLP, points to how the College of Physicians and Surgeons of Ontario also acknowledges how the law remains unclear and its current policy on the issue stresses that it is "unable to advise physicians how the commission, tribunal or courts will decide cases where they must balance the rights of physicians with those of their patients.

"If physicians have moral or religious beliefs which affect or may affect the provision of medical services, the College advises physicians to proceed cautiously with an understanding of the implications related to human rights," it states.

Sunshine makes the comments as the regulatory body that oversees physicians in Ontario currently revisits the policy and in doing so, has sparked a renewed debate about whether physicians should be allowed to refuse treatments for religious or moral reasons, reports the Ottawa Citizen.

The existing policy, in place since 2008, stipulates doctors have the right to refuse treatments and procedures for religious or moral reasons as long as they communicate their position promptly and clearly, provide patients with information of all potential options, treat patients with respect and advise patients they can see another physician.

The newspaper article points to three doctors, Dr. Edmond Kyrillos, Dr. Agnes Tanguay and Dr. Rene Leiva, who were under the spotlight earlier this year after a woman attended the clinic in order to have her birth control prescription renewed and was refused. The woman later wrote a blog about her experience.

As part of a routine review of its policy regarding Ontario’s human rights code, the College is asking physicians and members of the public for feedback on the increasingly controversial issue. The College will also hear from the chief commissioner of the Ontario Human Rights Commission and others, before a new policy is drafted at the end of this year, says the newspaper.

“The response to the question: ‘Do you think a physician should be allowed to refuse to provide a patient with a treatment or procedure because it conflicts with the physician’s religious or moral beliefs?’ posted on the College’s website has been overwhelmingly negative. Of 8,331 people who provided feedback, 70 per cent answered ‘no.’ The College is also asking people to fill out a survey or provide comments until Aug. 5,” says the article.

Supporters of the three Ottawa physicians have also created a Facebook page titled: “We Stand with Dr. Edmond Kyrillos, Dr. Agnes Tanguay and Dr. Rene Leiva” that advises on talking points that could be used as part of the consultations on the College’s freedom of conscience policy, says the Citizen.

Sunshine says the issue could be particularly problematic in smaller areas where the referral to another doctor is more difficult because there aren’t other choices for physician care.

She hopes that the College review that’s currently underway will assist physicians and will clarify what the expectations are for them.

“Barring any complaints and any guidance that may come from the Human Rights Tribunal, then the College will undertake their own process and hopefully come up with more guidance for physicians,” she says. “It will be interesting to see what happens – whether they will maintain their existing policy or whether they will crack down a bit and tell physicians they aren’t allowed to refuse.

“The public has made it quite clear (from the College comments so far) that they do not believe physicians should be able to refuse to provide treatment.  But do physicians’ duties to the public require them to provide treatment to which they are opposed? That  remains to be seen.”

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