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Conscientious objection to medical assistance in dying: Protecting Charter rights
Originally published June 2015 / Revised March 2021
The Supreme Court of Canada’s decision declaring the prohibition on medical assistance in dying (MAID) unconstitutional1 and the subsequent amendments to the Criminal Code 2 concern some CMPA members who object for moral or religious reasons to helping patients end their lives.
Those physicians, and a number of medical associations, are particularly concerned about legislation and regulatory authority (College) policies that have been amended or created as a result of the Court’s decision. They want these laws and regulations to protect their right to refuse to participate in the practice.
In its decision, the Supreme Court did state that, based on freedom of conscience, physicians have the right to refuse to assist a patient to die. The Court also said that any legislative and regulatory response to its decision must reconcile the Charter3 rights of both patients and physicians. The federal legislation implementing MAID provides that nothing compels medical practitioners to provide or assist in providing MAID. However, neither the Court nor the federal legislation specifically addresses whether physicians who refuse to assist a patient in dying on moral or religious grounds might be required to refer the patient. This issue can be significant for physicians who see a referral as morally equivalent to personally assisting a patient to die.
The concern with a mandatory duty to refer a patient for MAID originates, in part, from positions taken previously by some Colleges. Several Colleges have stated that physicians who are unwilling to provide certain care (e.g. birth control prescriptions, abortions) due to their moral or religious beliefs must refer the patient to another healthcare provider who will provide those services.4
Colleges have adopted guidelines concerning MAID, which generally state that physicians who object to assisting patients to die are expected to provide sufficient information and resources to enable patients to make their own informed choice and to access options for care, or to provide an effective referral to another physician or resource.
In 2015, concerns with protecting the Charter right of conscientious objectors resulted in a legal action being launched. The Christian Medical and Dental Society of Canada, the Canadian Federation of Catholic Physicians’ Societies, and some individual physicians have asked the Ontario courts to declare that portions of a College of Physicians and Surgeons of Ontario policy violate their Charter rights. These groups object to the portions of the policy that require physicians who refuse to provide a service on the basis of conscience or religion to provide patients with an effective referral to another healthcare professional or agency willing to provide that service. In 2019, the Ontario Court of Appeal confirmed the constitutionality of CPSO policies requiring conscientiously objecting physicians to provide effective referrals to patients seeking MAID.5
In Québec’s end-of-life legislation,6 physicians are allowed to refuse a request for medical aid in dying for personal reasons and are not required to make a direct referral. Instead, the physician must advise the authority specified in the legislation (e.g. hospital), and that authority will refer the patient. This allows Québec physicians to refuse to provide patients with assistance in dying based on conscientious grounds, while also permitting patients to obtain such care.
- Carter v Canada (Attorney General), 2015 SCC 5
- An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying) (formerly Bill C-14), 1st Sess, 42nd Leg, Canada, 2016 (assented to June 17, 2016); An Act to amend the Criminal Code (medical assistance in dying) (formerly Bill C-7) 2nd Sess, 43rd Leg, Canada, 2021 (assented to March 17, 2021).
- Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.
- For examples, see: College of Physicians and Surgeons of Ontario, Professional Obligations and Human Rights Policy, updated March 2015; and College of Physicians and Surgeons of Saskatchewan, Policy, Conscientious Objection, amended November 2020.
- Christian Medical and Dental Society of Canada v College of Physicians and Surgeons of Ontario, 2019 ONCA 393 (CanLII).
- An Act Respecting End-of-Life Care, RSQ 2014, c S-32.0001, arts 31, 50.