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Thinking about a patient's human rights
An article for physicians by physicians
Originally published March 2010
P1001-1-E

Consider how your actions could be seen as discriminatory

Case one: A surgeon cancelled an appointment for a patient who was HIV positive. After another surgeon performed the planned procedure in the same clinic, the patient complained to the regulatory authority (College) that the cancellation constituted discrimination on the basis of a medical condition. The first surgeon explained to the College that given the risk of post-operative infection, he believed surgery on HIV patients should only be done in hospital, not in an outpatient setting.

Case two: A family physician always has “meet and greet” interviews before accepting new patients. One interviewee complained to the College after being rejected. The physician’s response to the College was that the patient had multiple problems that she felt should be handled by specialists.

Case three: A fertility specialist refused to perform artificial insemination for a same sex couple. The couple complained to the human rights tribunal in their jurisdiction. The specialist’s reason for refusal was that a previous same sex couple for whom the service had been provided had involved the specialist in legal action after the couple separated.

All of these vignettes are examples of human rights issues that can affect physicians. While none of them were necessarily intentional abuses of the patient’s rights, in all of these cases the patients alleged the physician had discriminated against them.

Complaints to the College will generally be reviewed in light of the Canadian Medical Association (CMA) Code of Ethics.¹ Article 17 states:

“In providing medical service, do not discriminate against any patient on such grounds as age, gender, marital status, medical condition, national or ethnic origin, physical or mental disability, political affiliation, race, religion, sexual orientation, or socioeconomic status. This does not abrogate the physician’s right to refuse to accept a patient for legitimate reasons.”

When matters come before a human rights tribunal or commission, any ruling will be based on the definition of discrimination in the Human Rights Code. These statutes list many prohibitions (15 in Ontario, for example) and it is important to be aware of them.

Outcome of the cases

In the first two cases, the College ruled the physicians had indeed discriminated against the patients on the basis of their medical condition. Both physicians were advised to amend their practices. In case one, the surgeon was reminded that universal precautions were the appropriate way to minimize risks when dealing with possible infection. The College stated that, in any event, the patient could not be denied access to treatment. In case two, the College pointed out that the family physician could follow the patient’s general condition and progress, while conditions outside the physician’s competence could be referred to specialists.

Case three was ruled to be a case of discrimination on the basis of sexual orientation. The human rights tribunal noted the specialist readily provided the service to heterosexual couples, despite the fact such relationships can also break down and engender litigation.

What is considered appropriate?

Case four: A pain specialist terminated a patient from his practice after finding the patient had been selling some of the drugs he prescribed. The patient complained to the College that this was discrimination on the basis of a disability.

The College found no wrongdoing on the part of the physician, who had carefully documented his assessment and advice. The patient had also signed a treatment contract which included a warning that a breach would result in termination. The physician was deemed to have acted in accordance with the final clause of the Code of Ethics, terminating care for a legitimate reason.

Physicians generally do not intend to discriminate against individuals or classes of individuals but simply do not realize their actions might be perceived as, or sometimes constitute, an act of discrimination.

In taking a history, questions about sexual orientation and other sensitive issues are appropriate when clearly relevant to establishing the diagnosis or treatment of the patient. An explanation of the reasons for the questions may help avoid misconceptions. It is important, however, that any advice given to patients and any decisions made with regard to treatment of the patient be unbiased and made on sound medical grounds.

Some physicians ask whether they have the right to practice within their own religious or personal beliefs. Probably the most debated and clearest of these issues is the physician who is opposed to abortion on the basis of his/her religious or personal beliefs and who receives a request from a patient to obtain an abortion. Colleges across Canada have generally stated that the physician is required to provide objective medical information to the patient, which may include information about where the patient can obtain the requested service. The physician is not obliged to carry out the procedure or the service personally, but College policies may require more than a simple refusal.

A physician cannot be required to perform an illegal act, regardless of any conflict between the personal beliefs and wishes of a patient. Accordingly, it is not a breach of human rights to refuse to advise a patient on how to commit suicide, or to refuse to perform certain acts of genital mutilation.

Risk considerations

What advice can the Association offer to limit allegations of violation of human rights?

1. If you have limitations on your practice based on clinical competence or personal circumstance, you might consider advising prospective patients before they actually attend your office. These limitations may be considered discriminatory if you provide a specific service to one patient but deny it to another.
2. When considering refusing a person’s request to become a patient, take time to consider whether the refusal might be perceived as an act of discrimination.
3. If a situation arises where there is a conflict between your beliefs and the requests/needs of a patient, deal objectively with the patient’s need for information, including information about treatment options. You should be aware of the requirements of your College in dealing with these situations.
4. If it becomes necessary to dismiss a patient from your practice, ask yourself if the reasons are “legitimate” (refer to your College guidelines or call the CMPA for advice). As in case four, the patient’s perception of bias may not be substantiated by the College if your steps and discussion have been appropriate and documented.