Lack of Timely Access to Medical Assistance in Dying Fails to Respect CHA's Accessibility Principle

  • National Newswatch

Since Carter v Canada (AG), medical assistance in dying (MAID) has become a rapidly evolving issue in the realm of Canadian bioethics law. Ultimately, the introduction of MAID has prompted Canadian health organizations and medical colleges to implement policies that deal with how this life-ending medical procedure will be administered. Although each administrative body is afforded the ability to create its own policies, each must strive – at a minimum – to adopt a patient-centred approach that upholds the fundamental principles of the Canada Health Act. However, a vast array of public policy is not without contradictions or confusion. This issue is exemplified in the Ontario Court of Appeals Charter case, Christian Medical and Dental Society of Canada (CMDS) v College of Physicians and Surgeons of Ontario (CPSO).This case presents a Charter challenge by multiple Canadian medical organizations that represent the concerns of physicians as a result of the CPSO's effective referral policy. Essentially, this policy obligates a consciously objecting physician to refer a MAID-seeking patient to a non-objecting physician.[1] Providing a referral for MAID is interpreted by many as being directly involved in the administration of MAID, thus directly infringing on religious beliefs that are against this practice.Accordingly, CMDS cites an infringement of their section 2(a), freedom of religion Charter right. However, by using the Oakes Test (a test used to determine whether a government can justify a law that limits a Charter right)[2] this infringement was found to be justified under s. 1 of the Charter. As a result, the court upheld CPSO's policy.The reasoning in this decision extracts matters that pertain to a broad network of issues in the Canadian health care system. These issues are primarily highlighted in the sections of minimal impairment and proportionality applied in the Oakes test. Not having an effective referral policy was found as detrimental to vulnerable patients as they would “experience harm  due to interference or delay in accessing  care… associated  with  a  physician's refusal to  provide  care.”[3] When investigating less impairing means, the court denied CMDS's proposal of using an alternative “self-referral model”[4] or a “generalized information model.”[5] These policies were considered to place “the burden on the patient to self-refer to find a physician who will provide the health care they seek.”[6] For these reasons, amongst others, the court found that CPSO's effective referral policy had a minimally impairing effect on a physician's section 2(a) freedom of religion Charter right.Furthermore, the court's application of proportionality is exemplified by balancing the burdens taken on by objecting physicians with the burdens imposed on patients who fall victim to not receiving an effective referral. After evaluation, the court highlights that the burden of taking away this right was found to outweigh the burden taken on by an objecting physician. This decision is in consideration of administrative alternatives in providing a referral such as triage systems and hiring non-objecting support staff.[7]The justification for this Charter infringement is primarily focused on patient access to healthcare. Failing to obtain an effective referral from a doctor results in MAID-eligible patients – who are experiencing unbearable suffering – to face a delay in access to MAID services. Not only does this delay in receiving healthcare create a heavy burden for a patient, but it exhibits a lack of accessibility that goes against the basic principles of the Canada Health Act (CHA). The principle of accessibility ensures that health care is accessible, non-precluded, and unimpeded regardless of “age, health status or financial circumstance.”[8] Therefore, the court in CMDS was correct in justifying a Charter infringement on freedom of religion as it upholds a patient's fundamental right of access to health care.Additionally, by featuring patient access to healthcare as a primary issue in its Oakes test analysis, the court highlights the importance of Canada's healthcare jurisdictions implementing a patient-centred approach in their policies. However, the nonuniformity that exists among Canada's health organizations and medical colleges harbours an environment where this approach is not always adopted. One leading Canadian bioethics expert, Jocelyn Downie, states that having a large body of policies and policymakers creates confusion and “uncertainty for practitioners attempting to determine their obligations.”[9] This muddled policy-making regime is highlighted by the court in CMDS as it points to Ontario as one of the only provinces to implement this effective referral policy.Since the court in CMDS found that not having an effective referral policy placed a burden on a patient that was proportionally heavier than an infringement on a physician's section 2(a) Charter rights, it is peculiar that most other jurisdictions have not implemented this same policy. Instead, jurisdictions place a burden on their patients by making them find a non-objecting physician. As a result, many patients that are experiencing unbearable suffering face a lack of accessibility to MAID services. This delay not only goes against the principle of accessibility found in the CHA but also represents a burden that is heavy in proportion to a physician's section 2(a) Charter rights. Policy inconsistencies surrounding effective referrals are but one example of Canada's healthcare system straying away from a patient-centred approach.As the mass network of disorganization prevails within the Canadian health care system, unclear and overlapping policies not only foster confusion for physicians, but most importantly creates a domain of uncertainty for patients. If Canada wants to adopt the patient-centred approach that is highlighted by the court in CMDS, there needs to be clear policy uniformity amongst health organizations and medical colleges across Canada. Although ideal policy uniformity has not been achieved in Canada, the decision in CMDS delivers an important message; a patient-centred approach recognizes that equitable and accessible patient care is the ultimate objective at the heart of Canada's health care system.

[1] College of Physicians and Surgeons of Ontario, Advice to the Profession: Professional Obligations and Human Rights, Toronto: CPSO at 1.

[2] “Oakes Test”, online: Centre for Constitutional Studies <,be%20both%20important%20and%20necessary >.

[3] Ibid at para 116.

[4] Ibid at para 127.

[5] Ibid at para 131.

[6] Ibid at para 132.

[7] Ibid at para 183.

[8] Canada, Health Canada, Canada Health Act Annual Report, (Ottawa: Health Canada, 2015) at 4.

[9] Jacquelyn Shaw & Jocelyn Downie, “Welcome to the Wild, Wild North: Conscientious Objection Policies Governing Canada's Medical, Nursing, Pharmacy, and Dental Professions” (2014) 28:1 Bioethics 33 at 35. Kyle Wilfer is a JD Candidate (2024), and a research assistant, at the Robson Hall Faculty of Law, University of Manitoba.  The focus of his research is bioethics.