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

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?