Originally published December 2011
From time to time, a patient may refuse to be treated by a particular physician for cultural or religious reasons. A patient in labour, for example, may refuse to be seen by a male obstetrician.
In these circumstances, physicians may find themselves in a difficult ethical and legal position, including facing an allegation of discrimination, particularly if the patient requires urgent care and no other qualified physician is available.
Allegations of discrimination
Human rights legislation in all Canadian jurisdictions recognizes that individuals have the right to receive equal treatment with respect to goods, services, and facilities without discrimination.
As it is generally accepted that medical treatment is a service, physicians have a duty to provide these services free from discrimination. Similarly, Section 17 of the Canadian Medical Association's Code of Ethics and Section 23 of Québec's Code of Ethics of Physicians prohibit physicians from discriminating against their patients.
It would therefore amount to discrimination if a physician refused to treat a patient solely on the basis of that patient's age, gender, marital status, medical condition, ethnic origin, physical or mental disability, political affiliation, race, religion, sexual orientation, or socio-economic status.
However, discrimination may also be alleged in circumstances where the physician, clinic, or institution refuses or fails to give due respect to the reasonable request of a patient to receive treatment from a specified class of physician. These situations are most likely to arise when the request by the patient is based upon recognized fundamental beliefs of a cultural or religious nature. Allegations of discrimination would be less likely to succeed, however, if the request is simply based upon the personal preference of the patient as, for example, a younger physician.
To minimize the risk of a complaint, physicians and hospitals should make reasonable efforts to accommodate a patient's request to be treated by another physician.
Procedures should be developed for addressing requests, taking into consideration the resources that are available. Asking the patient the reason for the request and attending to it, at the outset, may allow sufficient time to make appropriate alternative arrangements for care, if necessary. As soon as reasonably possible, physicians should fully document in the patient's medical record all discussions or decisions about care, including decisions made by the patient.
If a patient requires emergency treatment and another physician is not available, the patient should be advised of the need to proceed with the care. If the patient continues to refuse consent to be treated, the physician may consider transferring the patient to another facility. However, the physician must still offer to continue treating the patient until alternative care becomes available.
Some patients may refuse all proposed accommodations or alternative arrangements and simply choose to discharge themselves against medical advice. It would be prudent to adopt or advocate for protocols or procedures to manage these situations. For example, patients may be asked to sign a document acknowledging that they have been advised of the risks of discharge against medical advice and are refusing further medical care. Again, proper documentation of the discussion is most helpful in these circumstances.
Accommodating special requests to the extent possible will minimize the risk of a complaint, but in circumstances where this is not possible, physicians and hospitals can take steps to reduce their medico-legal risk by:
- making reasonable efforts to accommodate a patient's request, based on cultural or religious grounds, to be treated by another physician
- fully documenting in the patient's medical record all discussions or decisions about care, including decisions made by the patient
- developing protocols for managing these situations