Patients urged to fight home-care cuts by filing appeals

Betty Terry, 89, and her daughter Hope Terry. Betty has Alzheimers and her home care hours have been reduced. (Courtesy of the Terry family
 

Derek Spalding Dec 01, 2014 - 6:39 PM EST Last Updated: Dec 02, 2014 - 8:54 AM EST 

 

Patients in the region who’ve had their home-care hours slashed in recent weeks may have found a way to at least temporarily have their service restored.
Residents in Windsor and the surrounding area are being urged by local MPPs to launch appeals with the agency that has for the past month been cutting the number of home visits in order to dig itself out of a massive financial hole.
The strategy worked for Hope Terry. Last week she complained to the Erie St. Clair Community Care Access Centre about its decision to reduce the amount of time personal support workers spend with her 89-year-old mother who lives in Chatham and suffers from severe dementia.

Terry spent days on the phone complaining. By Friday, she had the hours restored.

“I don’t know exactly what went down or why, but they agreed to reinstate all her hours,” she said.

The CCAC’s appeal process, which can allow a patient to maintain their level of care until a decision is made, prompted Windsor West MPP Lisa Gretzky to encourage other patients to do the same. The tactic was discussed in Windsor on the weekend when NDP party Leader Andrea Horwath met with residents and heard about the cuts first hand.

Ontario NDP leader, Andrea Horwath, centre-right, is joined by local MPP’s, Percy Hatfield, Lisa Gretzky, and Taras Natyshak as they hold a roundtable discussion regarding the Community Care Access Centre cuts to home care services, Saturday, Nov. 29, 2014. . (DAX MELMER/The Windsor Star)

“I’m encouraging people to appeal because it sounds like they may continue to get service as long as it’s part of the appeal process,” said Gretzky, who has regularly hounded the Ontario health minister about the reductions. “There’s no clarification on how long that appeal process is, but at least when a person appeals, they should continue to get service, which will give us more time to keep pressing the government on the issue.”

Filing an appeal, however, doesn’t necessarily mean patients will have care restored. The CCAC’s director of quality, Jacqui Stephens, said it’s up to the care co-ordinators who assess a patient’s needs to determine if that person should have their care maintained throughout the appeal process.

“The care co-ordinator … would use their best judgment, though, as to whether or not the patient should have the services re-initiated during the appeal process, but I couldn’t say specifically how often that happens,” Stephens said.

Appeals can be made for any change in service, including the recent push by the CCAC to have patients visit clinics in order to reduce its home-care nursing visits by 33 per cent. Cutting services so drastically was the result of the organization’s attempt to make up a $5.9-million shortfall in its budget this year.
“We are open to any kind of complaint or appeal,” Stephens said. “It’s really an opportunity for us, and the patient, to ensure we have all of the information.”
CCAC staff were relieved last week when they received an additional $4.1 million in funding from the Local Health Integration Network, which doles out the cash on behalf of the provincial government. In addition to bumping up the annual home-care budget to more than $136 million, LHIN board members allowed the agency to carry a deficit into next year giving staff more time to make up the remaining shortfall.

An influx of appeals could have an impact on that deficit recovery process, say CCAC officials. A statement issued Monday from CEO Lori Marshall confirmed that “there is potential for additional pressures on resources,” but she assured patients that “all of these conversations are necessary and are taken very seriously.”

Residents looking for a change might be disappointed, though. Unless there’s new information care co-ordinators are not aware of, the odds of overturning an assessment through an appeal are not very good, said Stephens.

“The appeal process will eventually just open up the assessment of that individual again,” she said. “If there isn’t anything else to be known, then it isn’t necessarily going to further their cause.”

She suggested patients connect with their care co-ordinators, if they have concerns or there’s other information the organization isn’t privy to. Many of these issues can be addressed at that level, Stephens added.

For Terry, she doesn’t know why her mother had her hours restored. It might have been the petition she circulated opposing the cuts, it could have been the disappointment she expressed in The Star or it could have been the appeal she threatened to file. Perhaps it was all of the above, she agreed.

“I’m just glad we got all the hours back,” Terry said. “But this wasn’t an easy process. A lot of times you just get (answering) machines and when you do talk to somebody, they talk about how dire the situation is and it gives you this fear that (a succesful appeal) isn’t going to happen.”

dspalding@windorstar.com or on Twitter @Derek_Spalding

Source: http://blogs.windsorstar.com/news/patients-urged-to-fight-home-care-cuts-by-filing-appeals
 

B.C. court fees tossed by SCC

By Cristin Schmitz October 17 2014 issue

The Supreme Court has struck down onerous courtroom user fees in British Columbia, ruling that provinces cannot administer justice in a way that denies Canadians access to the superior courts. In an expansive interpretation of superior courts’ “core jurisdiction” that will affect government treasuries, Chief Justice Beverley McLachlin’s groundbreaking Oct. 2 judgment, backed by four other judges, strikes down B.C.’s court hearing fees — the highest in the country — because they impose “undue hardship” on some middle-class litigants (i.e. at least some of those who don’t qualify for an exemption under the Supreme Court Civil Rules because they are not “impoverished.”). Because not everyone who is not impoverished can afford the hearing fees which escalate with the number of days in court, they unconstitutionally impede the right of at least some British Columbians to bring legitimate cases to court, the Chief Justice reasoned in Trial Lawyers Association of British Columbia v. British Columbia (Attorney General) [2014] S.C.J. No. 59. “In other words, the effect of the fees is unconstitutional because for many litigants bringing a claim would require sacrificing reasonable [living] expenses,” Chief Justice McLachlin wrote. The majority’s novel recognition of a constitutional right of access to civil justice — which “flows by necessary implication from the express terms of s. 96” of the Constitution Act, 1867, underpinned by the unwritten constitutional principle of “the rule of law” —could spur attacks on other impediments to court access, counsel say. “The court has previously rejected access to justice claims as they relate to lawyers’ fees, but I think that the [court’s] acknowledgement of the barriers for average Canadians suggests we need to look at such things as legal aid eligibility that is set so low as to be available only for the most destitute,” said Cheryl Milne, co-counsel with Paul Schabas for the intervener David Asper Centre for Constitutional Rights. “It is not only the poorest who can’t access justice. This case acknowledges that the middle class are seriously affected as well.” She said the case “challenged the Supreme Court to take a hard look at what is meant by access to justice, and to give weight to concerns that have been voiced for many years about the exorbitant costs of our justice system for the ordinary litigant.” Bryant Mackey of the B.C. Ministry of Justice in Vancouver, who with Gareth Morley represented the respondent B.C. Attorney General in defending the constitutionality of the hearing fees regime, said the “impact and influence” on the civil justice system of the court’s “more expansive” read of s. 96 “will only be truly known in the fullness of time.” “With its decision the court has broadened the application of that constitutional provision to include a right of access for civil litigants to the superior courts that can be infringed by economic barriers,” he said. “And on the flip side, the court did permit generally the use of hearing fees by governments as a ‘justifiable way of making resources available for the justice system and increasing access to justice overall.’” At press time, the B.C. government had not announced whether it will revamp or scrap the fees, which have not been collected since being ruled unconstitutional at trial in May 2012. Sharon Matthews of Vancouver’s Camp Fiorante, co-counsel with Melina Buckley and Michael Sobkin for the B.C. branch of the Canadian Bar Association, which successfully challenged the hearing fees, said the majority affirmed that for s. 96 to be meaningful “it must be interpreted consistently with the rule of law and access to justice.” She added “the court affirmed an analysis that gives ‘access to justice’ a principled constitutional home. For that reason, the case is very important for future access to justice issues because it clears out some of the legal debate that got in the way of moving the issue forward.” The intervener Advocates Society hailed the decision as “a clear win for citizens who are disadvantaged by the prohibitive costs of accessing the justice system.” Saskatchewan, Yukon and the Northwest Territories also charge for court time, but B.C.’s fees (nil for the first three days of trial, $500 per day for days four to 10, and $800 for each subsequent day) are much higher, sparking fears in the legal community that other provinces might enact similar charges. The successful appeal by the B.C. branch of the CBA, and the Trial Lawyers Association of B.C. represented by Darrell Roberts and Chantelle Rajotte of Vancouver’s Miller Thomson, arose from a family law case in which an unemployed, self-represented middle-class woman, with some savings, would have been required to pay $3,640 in hearing fees for a 10-day child custody and matrimonial property trial — close to her family’s total net monthly income. The B.C. Court of Appeal agreed with the trial judge that the hearing fees impeded access to justice, but purported to make the scheme constitutionally compliant by reading in words exempting people who are financially “in need” (i.e. not just those who are “impoverished”). Chief Justice McLachlin held that was not an appropriate remedy because it wasn’t clear that the legislature, faced with the ruling of unconstitutionality, would opt for broadening the indigency exemption to the middle class. Striking down the legislation instead, the Chief Justice, supported by Justices Louis LeBel, Rosalie Abella, Michael Moldaver and Andromache Karakatsanis, said s. 96 also guarantees “the core jurisdiction” of those courts. Neither Parliament nor the provincial legislatures can impinge on that core jurisdiction without amending the Constitution. She reasoned that resolving disputes between individuals, and deciding questions of private and public law, are central to what superior courts do. “It is their very book of business. To prevent this business being done strikes at the core of the jurisdiction of the superior courts protected by s. 96 of the Constitution Act, 1867,” she held. “As a result, hearing fees that deny people access to the courts infringe the core jurisdiction of the superior courts.” In his lone but vigorous dissent, Justice Marshall Rothstein would have upheld the hearing fee regime as within the constitutional powers of the province to administer justice. He criticized the majority’s “novel” and “overly expansive understanding of both s. 96…and the unwritten principle of the rule of law.” He warned against “subverting democracy and its accountability mechanisms beneath an overly expansive vision of constitutionalism.” “In engaging, on professed constitutional grounds, the question of affordability of government services to Canadians, the majority enters territory that is quintessentially that of the legislature,” he said. “In using an unwritten principle to support expanding the ambit of s. 96 to such an extent, the majority subverts the structure of the Constitution and jeopardizes the primacy of the written text.” Importantly, he noted, unlike Charter rights, “rights read into s. 96 are absolute” because they aren’t subject to justification under s. 1 of the Charter, nor to the Charter’s s.33 ‘notwithstanding’ clause. “The question my colleagues avoid answering is why access to superior courts for civil disputes warrants even stronger protection than those rights expressly enumerated in the Charter.” Source: http://www.lawyersweekly.ca/index.php?section=article&volume=34&number=22&article=2

Some doctors disgusting

How big of a jerk do you have to be to mock old, frail person seeking help in ER?

By Alan Shanoff, Toronto Sun

First posted: Saturday, September 27, 2014 07:00 PM EDT

Sitting in a hospital emergency room waiting for a doctor is one of life’s frustrating events.

Wait times are measured in hours, not minutes, for most.

But we wait and wait, believing the professionals who will treat us or our loved ones are doing heroic work, attempting to save the lives of people in dire need of their expertise.

But, according to Dr. Brian Goldman, a Toronto emergency room physician, that belief may be far from the truth.

Goldman’s recent book, The Secret Language of Doctors, provides the inside scoop on what some doctors are actually up to while we wait for treatment.
They’re playing games, treating patients as the enemy and doing everything possible to avoid looking after them.

The slang word for this game is “blocking”.

They also engage in “turfing”, having a patient punted from one department to another to avoid a difficult one.

Worse is a “patient dump”.

According to a study cited by Goldman, nearly 8% of doctors practising in hospitals have participated in blocking a patient from being admitted.
More than 9% have engaged in turfing.

Worse, some doctors actually celebrate successful blocks and turfs as if they had scored a touchdown.

Our health and the health of our loved ones is just a game to them.

As Goldman critically remarks, “While you or a loved one wait to be admitted to hospital, just a few metres away from your cubicle, yet well outside of earshot, physicians may be verbally duking it out over your immediate future. The aim is not so much to care for you as to find a clever way to jettison that responsibility by finding someone else to do it.”

Doctors sometimes lie or omit crucial information as part of the turfing process.
This unseemly practice has doctors shopping patients around trying to make a sale, doing whatever it takes to turf or dump the patient.

According to a doctor quoted by Goldman, the time spent blocking patients almost always causes patient suffering.

Many health professionals “can’t stand” what they call GOMERS, “get out of my emergency room patients”, usually the “old, demented sick with half a dozen or more illnesses”.

They look at GOMERS as people taking up valuable beds and wonder why they aren’t dead.

GOMERS are viewed as “bed blockers”, blocking beds for more entitled, often younger, patients.

But it isn’t just GOMERS that doctors can’t stand.

According to Goldman, many doctors hold the view, “If you are old, demented, frail, mentally ill, overly anxious about your health, morbidly obese, addicted, in police custody or if you just call on us too often, we’re not keen on having you as a patient.”

This point of view is expressed in the rich vein of slang used by doctors to describe undesirable patients.

A “toad” is a troublesome and demanding patient.

A “whale” is an obese patient, as is a beemer.

A “cockroach” is a patient who keeps coming back.

“FTDs” are patients who fail to die when expected to do so.

“FLKs” are funny looking kids.

A patient with a “horrendoma” has a horrible or awful condition.

“Closing the deal” refers to convincing a patient or next of kin to sign, or agree to, a “do not resuscitate” order (DNR).

But even if there’s no DNR order doctors may engage in the deceptive practice labelled as a “Slow Code” or a “Hollywood Code” of even a “Light Blue”.

While every profession uses its own slang, and there’s nothing wrong with black humour, it’s obvious this disrespectful language expresses a disrespectful attitude towards the public which must surely have an impact on the care provided.

If these doctors don’t want to treat the old and frail, those suffering from dementia, the obese, the addicted, or people who are overly anxious about their health, then maybe they shouldn’t be doctors.

And maybe we need different health care professionals to look after these patients.

Check out Goldman’s book. His honesty is refreshing.​


Source: http://www.torontosun.com/2014/09/27/some-doctors-disgusting

 

Supreme Court strikes down high B.C. court fees

By Mike Blanchfield The Canadian Press

Sean Kilpatrick/The Canadian Press The Supreme Court of Canada.

OTTAWA – British Columbia has the right to charge administrative court fees, but they can’t be so high as to prevent litigants from accessing the legal system, the Supreme Court of Canada ruled Thursday.

The justices said the effect of the B.C. fee scheme would be to deny some people access to the courts, so they struck it down as unconstitutional by a 6-1 margin.
“When hearing fees deprive litigants of access to the superior courts, they infringe the basic right of citizens to bring their cases to court,” Chief Justice Beverley McLachlin wrote in a landmark ruling on the issue of public access to the courts. “That point is reached when the hearing fees in question cause undue hardship to the litigant who seeks the adjudication of the superior court.”

The advocacy group, West Coast LEAF, which was an intervener in the case, said the ruling marks a major victory for access to justice.

The group argued that charging fees in family law cases was particularly unfair to women as they are less likely to be able to afford them because of “their unequal economic status.”

“This will mean improved access to justice for women in family law,” Kasari Govender, the group’s executive director, said in a statement.

“It also means that the highest court in Canada has confirmed that access to justice is constitutionally protected and that the justice system is not just for those who can afford it. This is a day to celebrate.”

The case stems from a child-custody dispute in which a woman said she could not afford the $3,600 she was charged for a 10-day trial.

B.C.’s superior court originally ruled the fees unconstitutional, because, while the very poorest are exempt, they still apply to other people of modest means and prevent them from pursuing their legal claims.

The B.C. Court of Appeal agreed, but widened the exemption to include not only impoverished people but other people in need.

In this particular case, a mother and father decided to end their relationship, but had to decide who would get custody of their daughter. The mother wanted to take their daughter to live with her in Europe, but the father wanted to keep her in B.C.
In order to get a court date, the woman, because she was the plaintiff, had to agree to pay the court administrative fee. The trial judge deferred the issue of the court fees until the end of the proceedings.

The woman was “not an ‘impoverished person’ in the ordinary sense of the word,” Thursday’s ruling said.

She was a qualified veterinary surgeon in Europe, but had not worked in the year leading up to the court action. She and her daughter were supported by the child’s father.

The woman had $24,500 in savings, but other lawyer’s fees depleted that, the ruling said.

“A fee that is so high that it requires litigants who are not impoverished to sacrifice reasonable expenses in order to bring a claim may, absent adequate exemptions, be unconstitutional because it subjects litigants to undue hardship, thereby effectively preventing access to the courts,” McLachlin wrote.
The case centered on a section of the Constitution Act, 1867, which deals with jurisdictional issues of the superior courts of the provinces.

The Supreme Court upheld the trial court ruling that the fees violated Section 96 of the act.

“Indeed, it is their very book of business. To prevent this business being done strikes at the core of the jurisdiction of the superior courts protected by s.96 of the Constitution Act, 1867,” the ruling said.

“As a result, hearing fees that deny people access to the courts infringe the core jurisdiction of the superior courts.”

The court fees were set on a sliding scale. There was no fee for the first three days, but days four to 10 cost $500 each and the charge rose to $800 for every day over 10.


Source: http://metronews.ca/news/canada/1172352/supreme-court-strikes-down-high-b-c-court-fees/#
 

Police will investigate Mississauga doctor if watchdog complains

But College of Physicians and Surgeons of Ontario won’t say whether it will report Dr. Sastri Maharajh, who was disciplined for sexually abusing as many as 13 female patients.

RICK MADONIK / TORONTO STAR FILE PHOTO 

 

Regulators such as the College of Physicians and Surgeons of Ontario should be more accountable to patients, one expert said, noting that the college could have revoked Dr. Sastri Maharajh's licence, but chose not to do so. 

By: Laura Armstrong Staff Reporter, Published on Fri Sep 19 2014

 

Peel Regional Police say they will investigate a Mississauga doctor disciplined for professional misconduct after sexually abusing more than 10 women if the province’s medical regulatory body complains.

But the College of Physicians and Surgeons of Ontario won’t say whether it will do so.

It’s keeping secret the details of any approach to local police services regarding Dr. Sastri Maharajh, who admitted to either placing his mouth on or resting his cheek on the breasts of as many as 13 female patients between 2005 and 2011.

Maharajh returned to work at a Mississauga walk-in clinic in July after an eight-month suspension. He isn’t allowed to treat women, and must post a clearly visible sign in his waiting room saying he can treat men only. Maharajh objected to these conditions at his penalty hearing, asking instead for his appointments with women to be supervised, but the committee decided his risk of reoffending was too great.

The Star’s multiple attempts to reach Maharajh at his home and clinic for comment were unsuccessful.

The college’s decision raises questions about whom the regulatory body is trying to protect — physicians or patients.

Marilou McPhedran, director of the Institute for International Women’s Rights at the University of Winnipeg’s Global College, headed two separate task forces in 1991 and 2001, looking at sexual abuse of patients by health-care professionals.

She said government and regulatory bodies need to be more accountable to patients.

In Maharajh’s case, McPhedran said the college could have revoked the doctor’s licence under the Regulated Health Professions Act.

“They have more than enough legal jurisdiction to use their discretion to exercise their responsibility, as members of a college, to make their decision on the basis of what is in the best interest of public and patient safety,” she said. “They chose not to.”

Instead, the discipline committee used a discretionary loophole in the act to suspend Maharajh and put conditions on his licence. The act allows less severe punishment for sexual transgressions that do not involve sexual intercourse, various forms of contact with the genitals, the anus and the mouth, or masturbation.

Not enough has changed in the more than two decades since the first task force was commissioned, McPhedran said.

“There’s a simple question to ask here: who benefits from continuing, year after year after year, not to fully utilize what the legislation allows to protect the public? Who benefits?”

A complaint of sexual abuse against Maharajh was reported to the college by an unidentified female patient in July 2011; Maharajh later disclosed to the college that similar incidents happened with 10 to 12 other women.

Peel police Const. Lillian Fitzpatrick said Maharajh’s name has not appeared on an arrest report. If the college made a complaint and provided police with specific information, such as the patient’s name, they could launch an investigation.

“What we would probably have to do in that case is get a warrant to obtain any written documentation, anything they would have to substantiate that claim,” Fitzpatrick said. “Then we would initiate (an investigation) through the victims.”

Fitzpatrick said although police will look into complaints of sexual abuse, a successful investigation ultimately comes down to a victim’s willingness to proceed.

In an email to the Star on Thursday, spokesperson Kathryn Clarke said while the college regularly receives and shares information with police in “appropriate circumstances,” she can’t speak to Maharajh’s case specifically.

“… In deciding whether to share information, the circumstances of the particular case are ‎considered, including the wishes of the complainant,” she said.

Source: http://www.thestar.com/news/gta/2014/09/19/police_will_investigate_mississauga_doctor_if_watchdog_complains.html
 

Physicians and the Ontario Human Rights Code

Publication Date: December 2008
College Contact: Physician Advisory Service

Downloadable Version(s): Physicians and the Ontario Human Rights Code

Introduction

Ontario’s Human Rights Code¹ (the Code) articulates the right of every Ontario resident to receive equal treatment with respect to goods, services and facilities without discrimination based on a number of grounds, including race, age, colour, sex, sexual orientation, and disability.² This imposes a duty on all those who provide services in Ontario – which includes physicians providing medical services – to provide these services free from discrimination.

Purpose

The goal of this policy is to help physicians understand the scope of their obligations under the Code and to set out the College’s expectation that physicians will respect the fundamental rights of those who seek their medical services.

Scope

This policy is applicable to all situations in which physicians are providing medical services.

Policy

Physicians must comply with the Code when making any decision relating to the provision of medical services. This includes decisions to accept or refuse individuals as patients, decisions about providing treatment or granting referrals to existing patients, and decisions to end a physician-patient relationship.
While the College does not have the expertise or the authority to make complex, new determinations of human rights law, physicians should be aware that the College is obliged to consider the Code when determining whether physician conduct is consistent with the expectations of the profession. Compliance with the Code is one factor the College will consider when evaluating physician conduct.
This policy is divided into two sections, each of which addresses physicians’ obligations under the Code. The first addresses physicians’ obligations to provide medical services without discrimination. The second address physicians’ obligations to accommodate the disabilities of patients or individuals who wish to become patients.

1. Providing medical services without discrimination

The Code requires that physicians provide medical services without discrimination.
This means that physicians cannot make decisions about whether to accept individuals as patients, whether to provide existing patients with medical care or services, or whether to end a physician-patient relationship on the basis of the individual’s or patient’s race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status and/or disability.³
This does not prevent physicians from making decisions or exercising professional judgment in relation to their own clinical competence. Physicians are always expected to practice medicine in keeping with their level of clinical competence to ensure they provide patients with quality health care in a safe manner. If physicians feel they cannot appropriately meet the health care needs of a patient or an individual who wishes to become a patient, they are not required to accept that person as a patient or to continue to act as that patient’s physician, provided they comply with other College polices in so doing.⁴

Guidelines

Although the Human Rights Commission and Tribunal have primary responsibility for interpreting and adjudicating human rights matters, the following guidance is intended to assist physicians in determining how to comply with the requirements of the Code. Physicians may also wish to seek guidance from a lawyer or the Canadian Medical Protective Association (CMPA).

i) Clinical Competence

As stated above, the duty to refrain from discrimination does not prevent physicians from making decisions in the course of practicing medicine that are related to their own clinical competence.
Where a physician is not able to accept an individual as a patient, provide a patient with treatment, or must end a physician-patient relationship for reasons related to his or her own clinical competence, the College offers the following as guidance.

Consider the Possibility of Referral

As a first step, physicians are encouraged to consider whether individuals or patients could be referred to other physicians for the elements of care that the physician is unable to manage directly.

Consult College Policies

If physicians decide that referral is not an option, and that they must end a physician-patient relationship for reasons related to clinical competence, they are expected to act in accordance with College expectations as set out in the Ending the Physician-Patient Relationship policy.

Clear Communication

The College expects physicians to communicate decisions they make to end a physician-patient relationship, refrain from providing a specific procedure, or to decline to accept an individual as a patient, and the reasons for the decision in a clear, straightforward manner. Doing so will allow physicians to explain the reason for their decision accurately, and thereby avoid misunderstandings.
Where a physician’s clinical competence may restrict the type of patients the physician is able to accept, physicians should communicate these restrictions as soon as is reasonable. This will enable individuals to have a clear understanding as to whether the physician will be able to accept them as a patient, or whether it will be in their best interests to try to find another physician.
Where a physician’s clinical competence may restrict the type of services or treatment he or she can provide, the physician should inform patients of any limitations related to clinical competence as soon as it is relevant. That is, the physician should advise the patient as soon as the physician knows the patient has a condition that he or she is not able to manage.

ii) Moral or Religious Beliefs

If physicians have moral or religious beliefs which affect or may affect the provision of medical services, the College advises physicians to proceed cautiously with an understanding of the implications related to human rights.
Personal beliefs and values and cultural and religious practices are central to the lives of physicians and their patients.
Physicians should, however, be aware that the Ontario Human Rights Commission or Tribunal may consider decisions to restrict medical services offered, to accept individuals as patients or to end physician-patient relationships that are based on physicians’ moral or religious beliefs to be contrary to the Code.

Ontario Human Rights Code: Current Law

Within the Code, there is no defence for refusing to provide a service on the basis of one of the prohibited grounds. This means that a physician who refuses to provide a service or refuses to accept an individual as a patient on the basis of a prohibited ground such as sex or sexual orientation may be acting contrary to the Code, even if the refusal is based on the physician’s moral or religious belief.⁵
The law in this area is unclear, and as such, the College is unable to advise physicians how the Commission, Tribunal or Courts will decide cases where they must balance the rights of physicians with those of their patients.
There are some general principles, however, that Courts have articulated when considering cases where equality rights clash with the freedom of conscience and religion.⁶ They are as follows:

• There is no hierarchy of rights in the Charter; freedom of religion and conscience, and equality rights are of equal importance;⁷
• Freedom to exercise genuine religious belief does not include the right to interfere with the rights of others;⁸
• Neither the freedom of religion nor the guarantee against discrimination are absolute. The proper place to draw the line is generally between belief and conduct. The freedom to hold beliefs is broader than the freedom to act on them.⁹
• The right to freedom of religion is not unlimited; it is subject to such limitations as are necessary to protect public safety, order, health, morals, or the fundamental rights or freedoms of others;¹⁰
• The balancing of rights must be done in context. In relation to freedom of religion specifically, Courts will consider how directly the act in question interferes with a core religious belief. Courts will seek to determine whether the act interferes with the religious belief in a ‘manner that is more than trivial or insubstantial.’¹¹ The more indirect the impact on a religious belief, the more likely Courts are to find that the freedom of religion should be limited.¹²

These principles appear to be generally applicable to circumstances in which a physician’s religious beliefs conflict with a patient’s need or desire for medical procedures or treatments. They are offered here to provide physicians with an indication of what principles may inform the decisions of Courts and Tribunals.

College Expectations

The College has its own expectations for physicians who limit their practice, refuse to accept individuals as patients, or end a physician-patient relationship on the basis of moral or religious belief.
In these situations, the College expects physicians to do the following:¹³

• Communicate clearly and promptly about any treatments or procedures the physician chooses not to provide because of his or her moral or religious beliefs.
• Provide information about all clinical options that may be available or appropriate based on the patient’s clinical needs or concerns. Physicians must not withhold information about the existence of a procedure or treatment because providing that procedure or giving advice about it conflicts with their religious or moral beliefs.
• Treat patients or individuals who wish to become patients with respect when they are seeking or requiring the treatment or procedure. This means that physicians should not express personal judgments about the beliefs, lifestyle, identity or characteristics of a patient or an individual who wishes to become a patient. This also means that physicians should not promote their own religious beliefs when interacting with patients, nor should they seek to convert existing patients or individuals who wish to become patients to their own religion.
• Advise patients or individuals who wish to become patients that they can see another physician with whom they can discuss their situation and in some circumstances, help the patient or individual make arrangements to do so.

The College will consider the extent to which a physician has complied with this guidance, when evaluating whether the physician’s behaviour constitutes professional misconduct.

2. Accommodation of disability

Legal Duty under the Code

Under the Code, the legal obligation not to discriminate includes a duty to accommodate short of undue hardship. The duty to accommodate is not limited to disability,¹⁴ however, the information provided in this section will focus on accommodation of disability only.
When physicians become aware that existing patients or individuals who wish to become patients have a disability which may impede or limit access to medical services, the Code requires physicians to take steps to accommodate the needs of these patients or individuals. The purpose in doing so is to eliminate or reduce any barriers or obstacles that disabled persons may experience.
While physicians have a legal duty to accommodate disability, there are limits to this duty. Physicians do not have to provide accommodation that will cause them undue hardship.¹⁵ Further explanation of ‘undue hardship’ is provided in the Human Rights Commission’s Policy and Guidelines on Disability and the Duty to Accommodate.¹⁶

Guidelines for Accommodation of Disability

Guidance on the specific steps that may be required to fulfil the duty to accommodate disability can be found in the Ontario Human Rights Commission’s Policy and Guidelines on Disability and the Duty to Accommodate (section 3.4).
There is no set formula for accommodating the needs of persons with disabilities.
Accommodation of persons with disabilities should be provided in a manner that is respectful of the dignity, autonomy and privacy of the person, if to do so does not create undue hardship.¹⁷
Physicians are advised to approach situations where accommodation is required on a case-by-case basis, and to tailor the nature of the accommodation to the needs of the individual before them.
Examples of accommodation may include taking steps to ensure that a guide dog can be brought into an examination room, or that patients are permitted to have a sign language interpreter present during a physician-patient encounter.

Endnotes

¹R.S.O. 1990, c.H.19.
²Section 1 of the Human Rights Code, R.S.O. 1990, c. H.19 states, Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or disability. The Ontario Human Rights Commission’s position is that the obligation not to discriminate on the basis of ‘sex’ includes an obligation not to discriminate on the basis of pregnancy, breastfeeding and gender identity.
³Human Rights Code, R.S.O. 1990, c.H.19, section 1. This legal obligation is reflected in guidance contained in the Canadian Medical Association’s Code of Ethics, paragraph 17.
⁴See CPSO’s policy Ending the Physician-Patient Relationship, and The Practice Guide.
⁵This could occur if the physician’s decision to refuse to provide a service, though motivated by religious belief, has the effect of denying an individual access to medical services on one of the protected grounds. For example, a physician who is opposed to same sex procreation for religious reasons and therefore refuses to refer a homosexual couple for fertility treatment may be in breach of the Code.
⁶Canadian Charter of Rights and Freedoms, Schedule B, Canada Act 1982 (U.K.) 1982, c. 11, section 2(a).
⁷EGALE Canada Inc.v. Canada (Attorney General) (2003), 13 B.C.L.R. (4th) 1 (B.C.C.A.), at paragraph 133.
⁸Trinity Western University v. British Columbia College of Teachers, [2001] 1 S.C.R. 772 at p.33.
⁹Trinity Western University v. British Columbia College of Teachers , [2001] 1 S.C.R. 772 headnote, and at para.36.
¹⁰R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, at p 336-7; Ross v. School District no. 15, [1996] 1 S.C.R. 825 at p.868.
¹¹Syndicat Northcrest v. Amselem, [2004] 2 S.C.R. 551, at paragraphs 59-60.
¹²Ross v. School District no. 15, [1996] 1 S.C.R. 825; In Syndicat Northcrest v. Amselem, [2004] 3 S.C.R. 698, the Court said that the religious belief must be interfered with in a manner that is more than trivial or insubstantial. (at paragraphs 59, 60)
¹³ These points are consistent with the guidance provided by the General Medical Council in its document, Personal Beliefs and Medical Practice
¹⁴The Ontario Human Rights Commission has stated that the duty to accommodate could arise in relation to other enumerated or protected grounds in the Code.
¹⁵Human Rights Code, R.S.O. 1990, c.H.19, section 17(2).
¹⁶Policy and Guidelines on Disability and the Duty to Accommodate, Ontario Human Rights Commission, November 2000
¹⁷Policy and Guidelines on Disability and the Duty to Accommodate, Ontario Human Rights Commission, November 2000 (pp. 12, 13)


Source: http://www.cpso.on.ca/Policies-Publications/Policy/Physicians-and-the-Ontario-Human-Rights-Code
 

Physicians and the Ontario Human Rights Code

Publication Date: December 2008

Introduction

Ontario’s Human Rights Code¹ (the Code) articulates the right of every Ontario resident to receive equal treatment with respect to goods, services and facilities without discrimination based on a number of grounds, including race, age, colour, sex, sexual orientation, and disability.² This imposes a duty on all those who provide services in Ontario – which includes physicians providing medical services – to provide these services free from discrimination.

Purpose

The goal of this policy is to help physicians understand the scope of their obligations under the Code and to set out the College’s expectation that physicians will respect the fundamental rights of those who seek their medical services.

Scope

This policy is applicable to all situations in which physicians are providing medical services.

Policy

Physicians must comply with the Code when making any decision relating to the provision of medical services. This includes decisions to accept or refuse individuals as patients, decisions about providing treatment or granting referrals to existing patients, and decisions to end a physician-patient relationship.
While the College does not have the expertise or the authority to make complex, new determinations of human rights law, physicians should be aware that the College is obliged to consider the Code when determining whether physician conduct is consistent with the expectations of the profession. Compliance with the Code is one factor the College will consider when evaluating physician conduct.
This policy is divided into two sections, each of which addresses physicians’ obligations under the Code. The first addresses physicians’ obligations to provide medical services without discrimination. The second address physicians’ obligations to accommodate the disabilities of patients or individuals who wish to become patients.

1. Providing medical services without discrimination

The Code requires that physicians provide medical services without discrimination.
This means that physicians cannot make decisions about whether to accept individuals as patients, whether to provide existing patients with medical care or services, or whether to end a physician-patient relationship on the basis of the individual’s or patient’s race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status and/or disability.³
This does not prevent physicians from making decisions or exercising professional judgment in relation to their own clinical competence. Physicians are always expected to practice medicine in keeping with their level of clinical competence to ensure they provide patients with quality health care in a safe manner. If physicians feel they cannot appropriately meet the health care needs of a patient or an individual who wishes to become a patient, they are not required to accept that person as a patient or to continue to act as that patient’s physician, provided they comply with other College polices in so doing.⁴

Guidelines

Although the Human Rights Commission and Tribunal have primary responsibility for interpreting and adjudicating human rights matters, the following guidance is intended to assist physicians in determining how to comply with the requirements of the Code. Physicians may also wish to seek guidance from a lawyer or the Canadian Medical Protective Association (CMPA).

i) Clinical Competence

As stated above, the duty to refrain from discrimination does not prevent physicians from making decisions in the course of practicing medicine that are related to their own clinical competence.
Where a physician is not able to accept an individual as a patient, provide a patient with treatment, or must end a physician-patient relationship for reasons related to his or her own clinical competence, the College offers the following as guidance.

Consider the Possibility of Referral

As a first step, physicians are encouraged to consider whether individuals or patients could be referred to other physicians for the elements of care that the physician is unable to manage directly.

Consult College Policies

If physicians decide that referral is not an option, and that they must end a physician-patient relationship for reasons related to clinical competence, they are expected to act in accordance with College expectations as set out in the Ending the Physician-Patient Relationship policy.

Clear Communication

The College expects physicians to communicate decisions they make to end a physician-patient relationship, refrain from providing a specific procedure, or to decline to accept an individual as a patient, and the reasons for the decision in a clear, straightforward manner. Doing so will allow physicians to explain the reason for their decision accurately, and thereby avoid misunderstandings.
Where a physician’s clinical competence may restrict the type of patients the physician is able to accept, physicians should communicate these restrictions as soon as is reasonable. This will enable individuals to have a clear understanding as to whether the physician will be able to accept them as a patient, or whether it will be in their best interests to try to find another physician.
Where a physician’s clinical competence may restrict the type of services or treatment he or she can provide, the physician should inform patients of any limitations related to clinical competence as soon as it is relevant. That is, the physician should advise the patient as soon as the physician knows the patient has a condition that he or she is not able to manage.

ii) Moral or Religious Beliefs

If physicians have moral or religious beliefs which affect or may affect the provision of medical services, the College advises physicians to proceed cautiously with an understanding of the implications related to human rights.
Personal beliefs and values and cultural and religious practices are central to the lives of physicians and their patients.
Physicians should, however, be aware that the Ontario Human Rights Commission or Tribunal may consider decisions to restrict medical services offered, to accept individuals as patients or to end physician-patient relationships that are based on physicians’ moral or religious beliefs to be contrary to the Code.

Ontario Human Rights Code: Current Law

Within the Code, there is no defence for refusing to provide a service on the basis of one of the prohibited grounds. This means that a physician who refuses to provide a service or refuses to accept an individual as a patient on the basis of a prohibited ground such as sex or sexual orientation may be acting contrary to the Code, even if the refusal is based on the physician’s moral or religious belief.⁵
The law in this area is unclear, and as such, the College is unable to advise physicians how the Commission, Tribunal or Courts will decide cases where they must balance the rights of physicians with those of their patients.
There are some general principles, however, that Courts have articulated when considering cases where equality rights clash with the freedom of conscience and religion.⁶ They are as follows:

• There is no hierarchy of rights in the Charter; freedom of religion and conscience, and equality rights are of equal importance;⁷
• Freedom to exercise genuine religious belief does not include the right to interfere with the rights of others;⁸
• Neither the freedom of religion nor the guarantee against discrimination are absolute. The proper place to draw the line is generally between belief and conduct. The freedom to hold beliefs is broader than the freedom to act on them.⁹
• The right to freedom of religion is not unlimited; it is subject to such limitations as are necessary to protect public safety, order, health, morals, or the fundamental rights or freedoms of others;¹⁰
• The balancing of rights must be done in context. In relation to freedom of religion specifically, Courts will consider how directly the act in question interferes with a core religious belief. Courts will seek to determine whether the act interferes with the religious belief in a ‘manner that is more than trivial or insubstantial.’¹¹ The more indirect the impact on a religious belief, the more likely Courts are to find that the freedom of religion should be limited.¹²

These principles appear to be generally applicable to circumstances in which a physician’s religious beliefs conflict with a patient’s need or desire for medical procedures or treatments. They are offered here to provide physicians with an indication of what principles may inform the decisions of Courts and Tribunals.

College Expectations

The College has its own expectations for physicians who limit their practice, refuse to accept individuals as patients, or end a physician-patient relationship on the basis of moral or religious belief.
In these situations, the College expects physicians to do the following:¹³

• Communicate clearly and promptly about any treatments or procedures the physician chooses not to provide because of his or her moral or religious beliefs.
• Provide information about all clinical options that may be available or appropriate based on the patient’s clinical needs or concerns. Physicians must not withhold information about the existence of a procedure or treatment because providing that procedure or giving advice about it conflicts with their religious or moral beliefs.
• Treat patients or individuals who wish to become patients with respect when they are seeking or requiring the treatment or procedure. This means that physicians should not express personal judgments about the beliefs, lifestyle, identity or characteristics of a patient or an individual who wishes to become a patient. This also means that physicians should not promote their own religious beliefs when interacting with patients, nor should they seek to convert existing patients or individuals who wish to become patients to their own religion.
• Advise patients or individuals who wish to become patients that they can see another physician with whom they can discuss their situation and in some circumstances, help the patient or individual make arrangements to do so.

The College will consider the extent to which a physician has complied with this guidance, when evaluating whether the physician’s behaviour constitutes professional misconduct.

2. Accommodation of disability

Legal Duty under the Code

Under the Code, the legal obligation not to discriminate includes a duty to accommodate short of undue hardship. The duty to accommodate is not limited to disability,¹⁴ however, the information provided in this section will focus on accommodation of disability only.
When physicians become aware that existing patients or individuals who wish to become patients have a disability which may impede or limit access to medical services, the Code requires physicians to take steps to accommodate the needs of these patients or individuals. The purpose in doing so is to eliminate or reduce any barriers or obstacles that disabled persons may experience.
While physicians have a legal duty to accommodate disability, there are limits to this duty. Physicians do not have to provide accommodation that will cause them undue hardship.¹⁵ Further explanation of ‘undue hardship’ is provided in the Human Rights Commission’s Policy and Guidelines on Disability and the Duty to Accommodate.¹⁶

Guidelines for Accommodation of Disability

Guidance on the specific steps that may be required to fulfil the duty to accommodate disability can be found in the Ontario Human Rights Commission’s Policy and Guidelines on Disability and the Duty to Accommodate (section 3.4).
There is no set formula for accommodating the needs of persons with disabilities.
Accommodation of persons with disabilities should be provided in a manner that is respectful of the dignity, autonomy and privacy of the person, if to do so does not create undue hardship.¹⁷
Physicians are advised to approach situations where accommodation is required on a case-by-case basis, and to tailor the nature of the accommodation to the needs of the individual before them.
Examples of accommodation may include taking steps to ensure that a guide dog can be brought into an examination room, or that patients are permitted to have a sign language interpreter present during a physician-patient encounter

Source: http://www.cpso.on.ca/Policies-Publications/Policy/Physicians-and-the-Ontario-Human-Rights-Code