What Kentucky’s County Clerks
Can Teach Canada’s Doctors:
Or: Is it conscientious objection, or
dishonourable disobedience?
Professor Amir Attaran
Faculty of Common Law
Faculty of Medicine
What the Supreme Court of Canada said
(and the CMA serially misrepresents)
“A number of the interveners asked the Court to account for physicians’
freedom of conscience and religion… They ask us to confirm that
physicians and other health-care workers cannot be compelled to provide
medical aid in dying.…
In our view, nothing in the declaration of invalidity which we propose to
issue would compel physicians to provide assistance in dying...
What follows is in the hands of the physicians’ colleges, Parliament, and
the provincial legislatures…
Rather, we underline that the Charter rights of patients and physicians
will need to be reconciled.”
Carter v. Canada (Attorney General), 2015 SCC 5,
at para. 130-132.
What the CPSO says
• “… the Charter entitles physicians to limit the health services they
provide for reasons of conscience or religion, this cannot
impede, either directly or indirectly, access to these services for
existing patients, or those seeking to become patients… Where
physicians are unwilling to provide certain elements of care for
reasons of conscience or religion, an effective referral to another
health-care provider must be provided to the patient.”
Warning: Team referrals are a doubtful solution, because
referrals can heighten, rather than erase, discrimination.
Most PAD patients are “disabled” under the
Human Rights Code
“disability” means
(a)any degree of physical disability, infirmity, malformation or
disfigurement that is caused by bodily injury, birth defect or illness
and, without limiting the generality of the foregoing, includes
diabetes mellitus, epilepsy, a brain injury, any degree of paralysis,
amputation, lack of physical co-ordination, blindness or visual
impediment, deafness or hearing impediment, muteness or speech
impediment, or physical reliance on a guide dog or other animal or
on a wheelchair or other remedial appliance or device,
[…]
(d) a mental disorder,
Korn v. Potter – at CPSBC Discipline Council
Upheld Dr. Korn’s conscientious objection.
“In the absence of the need for either urgent or
emergency medical services and in the circumstances
of this particular case, Dr. Korn had the right to refuse
Tracy Potter as a patient.”
But the CPSBC’s conclusion, which relied on the
CMA Code of Ethics, was found wrong in litigation.
Korn v. Potter – at BC Human Rights Council
“A physician's status as a professional and the nature of
the physician/patient relationship give physicians no more
(or less) freedom to deny a service on a ground
prohibited by the [BC Human Rights] Act than any other
service provider…
Something more than the mere assertion of professional
autonomy or the personal comfort of the physician or
patient is required.”
Korn v. Potter – at BC Supreme Court
“The fact Dr. Korn provided the names of two physicians
he believed would assist [the patients] in obtaining
artificial insemination services supports the fact he was
personally denying that service... The fact other providers
exist cannot sanction discrimination prohibited under the
Act by any one provider.”
Dr. Korn lost and had to pay damages. Had he refused he
could have been imprisoned.
Korn v. Potter, 1996 CanLII 1818 (BCSC).
Could doctors get a legislated carve-out?
No! A law that carves-out discrimination it itself
discriminatory, and invalid under the Charter.
“In our tradition, the apparatus of the state serves everyone
equally without providing better, poorer or different services
to one individual compared to another... Persons who
voluntarily choose to assume an office, like that of marriage
commissioner, cannot expect to directly shape the office’s
intersection with the public so as to make it conform with
their personal religious or other beliefs…
This is clearly one of those situations where religious
freedom must yield to the larger public interest.”
Marriage Commissioners Appointed Under The Marriage Act (Re),
2011 SKCA 3
Summary
• The Supreme Court said patients’ and doctors’ rights have to be reconciled.
They were asked to confirm that doctors cannot be compelled to provide PAD,
but declined to do so. Repeating the falsehood does not make it true.
• Doctors cannot refuse PAD, if refusal is discriminatory. But that still leaves
doctors latitude to object religiously or conscientiously. Examples:
– Refusing to practice medicine on the sabbath, shabbat or jumu’ah
– Refusing to provide PAD by practicing in a niche where it never arises
(practice in pathology, obstetrics, radiology, work for WCB, etc)
• A carve-out is a legal non-starter. Legislation cannot excuse discrimination.
• Do we really need legislation anyway?
Thank you for your patience.
Questions?
[email protected]