Advice to the Profession: Human Rights in the Provision of Health Services

The Human Rights in the Provision of Health Services policy articulates physicians’ legal and professional obligations regarding the provision of health services, including with respect to accessibility and human rights legislation and when limiting health services that conflict with their conscience or religious beliefs. This Advice to the Profession (“Advice”) document is intended to help physicians understand their obligations and provide guidance on how they may be effectively discharged.

Providing Safe, Inclusive, and Accessible Health Services

Why has CPSO referenced cultural humility, cultural safety, anti-racism, and anti-oppression in the policy?

CPSO recognizes that a patient’s racial/ethnic/cultural background, sexual orientation, gender identity, socio-economic status, and where they live are often the primary determinants of their health. Those belonging to racialized or marginalized groups are more likely to have difficulties accessing care and experience poorer health outcomes.¹

CPSO has committed to examining how we can better fulfill our mandate by bringing equity, diversity, and inclusion (EDI) to our processes and policies. Many other medical organizations also recognize EDI, cultural safety, and cultural humility as priorities.²

As part of this commitment, the policy supports physicians taking steps to acknowledge themselves as learners when it comes to understanding a patient's experience (cultural humility), to consider how social and historical contexts shape health and health-care experiences (cultural safety), to attempt to mitigate the effects of oppression in society (anti-oppression), and to engage in the process of actively identifying and eliminating racism (anti-racism). Incorporating these concepts will help create and foster a safe, inclusive, and accessible environment and improve patient experience, health outcomes, and the quality of the physician-patient relationship.

As these concepts may be new to some physicians, examples and resources are provided below as well as on CPSO’s Equity, Diversity, and Inclusion webpage.

How do I create and foster a safe, inclusive, and accessible environment in my practice?

Some specific examples include, but are not limited to:

• undertaking ongoing education, becoming aware of your assumptions, beliefs, and privileges, and taking steps to minimize biases when providing care;
• learning about and respecting your patient’s lived experience, racial/ethnic/cultural background, values/beliefs/worldview, sexual orientation, gender identity, and socioeconomic status, and understanding how they relate to patient health outcomes;
• communicating and collaborating with patients and/or others they wish to involve in their care to ensure treatment plans address patients’ specific needs;
• incorporating a trauma/violence-informed approach to care (e.g., using EQUIP Health Care’s Trauma- and Violence-Informed Care Tool); and
• identifying and addressing barriers (e.g., language, physical) that may prevent or limit access to health services, and creating safe and inclusive spaces.

You may also help create safe, inclusive, and accessible environments through your role as a health advocate. This may mean advocating for an individual patient’s health care needs, advancing policies that promote the health and well-being of the public and a safe health care system, or actively challenging structures (e.g., policies and programs) that perpetuate inequities in the health care system.

The policy says that physicians must not promote their own spiritual, secular, or religious beliefs when interacting with patients or impose these beliefs on patients. Can I ever discuss my beliefs with patients?

Yes. CPSO recognizes that patients’ spiritual, secular, and religious beliefs can play an important role in decisions about health care and can offer comfort to patients facing difficult news about their health. It can be appropriate to inquire about and/or discuss patients’ beliefs when they are relevant to a patient’s decision-making or where it will enable you to suggest support and resources that may assist the patient.

It is important not to imply that your beliefs are superior to the patient’s, attempt to influence the patient’s beliefs, or attempt to convert patients to your own beliefs. This includes when you are communicating a conscientious or religious objection to certain treatments, services, or procedures. Allowing patients to guide discussions about their beliefs will help avoid the perception that you are attempting to influence them.

Does the Accessibility for Ontarians with Disabilities Act, 2005 (AODA) apply to me? How does the AODA relate to the Ontario Human Rights Code?

Yes. The AODA applies to organizations with at least one employee, including those that provide health-care services (e.g., physicians’ offices, clinics, and hospitals). The AODA sets general accessibility standards that organizations must meet in different areas, such as information and communication standards and customer service standards.

Under the Human Rights Code, all individuals and organizations that provide services or employ people have a duty to accommodate persons with disabilities, making individualized adaptations or adjustments to provide equitable opportunities for participation. Physicians must comply with the Human Rights Code and AODA standards that are applicable to their office³ and any policies developed in accordance with AODA in their workplace.

While the Human Rights Code and AODA work together, compliance with the AODA does not necessarily mean compliance with the Human Rights Code. Even where a physician meets all their obligations under the AODA, they will still be responsible for making sure that discrimination and harassment based on disability do not take place in their operations and that they respond to individual requests for accommodation.⁴

What is the duty to accommodate set out in the Human Rights Code? How do I fulfil it?

The legal, professional, and ethical obligation to provide services free from discrimination includes a duty to accommodate. The duty to accommodate under the Human Rights Code relates to accommodations required to meet the needs of protected groups. Common grounds for accommodation requests are disability, creed, family status, gender identity, gender expression, and sex. Patients have a right to take part in the process of determining an appropriate accommodation and the process should maximize the patient’s right to privacy and confidentiality.

Individuals and organizations can adopt the principles of inclusive design and proactively anticipate and offer accommodations that may be required to ensure equal opportunity to individuals seeking to become a patient.

Examples of accommodation may include, but are not limited to: permitting a service dog to accompany a patient into an exam room; using interpreters⁵ or other aids to overcome communication barriers; ensuring signage reflects diverse family configurations (e.g., families with two mothers or two fathers); designing areas (e.g. waiting rooms, hallways) to be navigable by wheelchair-dependent patients; ensuring that Indigenous patients⁶ who need to smudge can do so in a dignified and timely way; and using forms that reflect the diversity of patients’ gender identities and expression.

What happens if I cannot accommodate a patient?

The threshold to establish undue hardship is very high and, often, it will not be difficult to accommodate a patient’s Human Rights Code-related needs. Where a particular accommodation measure would cause undue hardship (based on excessive cost or health and safety issues) or significantly interfere with the rights of others,⁷ you still have a duty to explore and implement any other measures that would meet the patient’s Human Rights Code-based needs, fall short of undue hardship, and do not interfere significantly with others’ legal rights. If you are aware of another health-care professional who is available and able to accommodate the patient, you can also connect the patient to them.

What are “service animals” and “support animals”? Am I required to allow them?

The AODA Customer Service Standards defines an animal as a “service animal” for a person with a disability if:

• the animal can be readily identified as one that the person is using for reasons relating to their disability, as a result of visual indicators such as the vest or harness worn by the animal; or
• the person provides documentation⁸ from a regulated health professional confirming that they require the animal for reasons relating to the disability.⁹

A “support animal” (also commonly referred to as an “emotional support animal”) is not defined in the AODA or the Human Rights Code.

Physicians are required to allow service animals and may be required to allow support animals under the Human Rights Code if support animals are required as a form of accommodation for patients with disabilities, subject to undue hardship.

Guidance on patient requests for documentation for a service or support animal can be found in the Advice to the Profession: Third Party Medical Reports.

How do I determine if a patient’s request to receive care from a physician with a particular identity is reasonable?

If a patient requests to receive care from a physician with a particular identity, you may sensitively explore the reason(s) for the request. Physician-patient concordance is associated with greater trust, comprehension, satisfaction, and other critical patient-centred outcomes. For example, patients from racial or ethnic minority groups may request a physician of the same race or ethnicity based on a history of discrimination or other negative experiences with the health-care system that resulted in mistrust. Such requests can be considered reasonable.

In some instances, it may be difficult to evaluate a request, such as when the patient does not feel comfortable disclosing their reason (e.g., a patient may not disclose that a request for a physician of a particular gender is due to a history of sexual assault). You will need to use your professional judgment to determine whether fulfilling the request is reasonable in the circumstances.

At other times, it may be obvious that the request is not reasonable because the patient uses discriminatory and derogatory language. In these cases, once a patient’s emergent or urgent medical needs are met, you will need to use your professional judgment (including considering the safety of everyone involved) when determining what steps to take next. This may include continuing to provide treatment to the patient’s other needs or transferring the patient’s care to another provider.

It is also prudent to consider the patient’s mental and/or physical state. For example, patients may not be cognitively aware of what they are saying or doing due to a severe mental illness, neurocognitive or neurodevelopmental disorder, intoxication, or delirium. Physicians may be more willing to care for patients in these cases. Professionalism requires physicians to accept a broad range of human behaviour in response to illness or incapacity. You will need to use your professional judgment to determine when behaviour becomes unsafe. It would not be in anyone’s best interest to provide care where you feel unsafe and/or may be harmed.

Physician Safety, Health, and Wellness

What steps can I take to address acts of violence, harassment, and/or discrimination against patients, health-care professionals, and/or staff?

Physicians have a right to be free from violence, harassment, and discrimination in their workplace. Physicians suffer harm (e.g., emotional exhaustion, fear, self-doubt, and increased cynicism) after encounters with discriminatory patients, which can lead to physician burnout and negatively impact patient care.

The policy enables physicians to take steps to stop and address acts of violence, harassment, or discrimination, where it does not compromise their own or other’s safety. Steps that can be taken to address these acts can include, but are not limited to:

• Naming the behaviour as violent, harassing, and/or discriminatory;
• Explicitly stating that the behaviour is not appropriate and will not be tolerated;
• Developing a safety plan for the workplace and being aware of any other relevant policies and procedures in place;
• Making a report to the appropriate authority or supporting the individual who experienced the violence, harassment, and/or discrimination in doing so; and
• Providing the individual who experienced the violence, harassment, and/or discrimination with the opportunity to debrief with someone with the necessary skills to do the debriefing.

If a physician determines that it would be unsafe to care for a patient and decides to end the physician-patient relationship, they must comply with the Ending the Physician-Patient Relationship policy.

Additional guidance on addressing violence, harassment, and discrimination in the workplace can be found in the CMPA articles, Challenging patient encounters: How to safely manage and de-escalate and When physicians feel bullied or threatened.

I am a physician with a disability. What resources are available to support me?

Physicians with disabilities play an important role in providing health care. In addition to their medical skills and knowledge, their lived experiences can enrich the learning and clinical environment, increase empathy for patients, and improve care for patients with disabilities. Full inclusion of physicians with disabilities, however, requires structural and cultural changes.¹⁰

The Canadian Medical Association recommends bolstering processes which provide reasonable accommodations to physicians and learners with existing disabilities while allowing for safe patient care. The Royal College Physician Wellness Task Force has recommended that policies and practices support flexibility in training and practice to meet varied needs and circumstances (e.g., accommodations, modified training, work and call schedules).

Resources for physicians with disabilities can be found through the Canadian Association of Physicians with Disabilities. Physician wellness resources are also available on CPSO’s website.

Health Services that Conflict with Physicians’ Conscience or Religious Beliefs

Can I practise in accordance with my conscience or religious beliefs?

Yes. The Canadian Charter of Rights and Freedoms protects the freedom of conscience and religion.¹¹ This freedom must also be balanced against patients’ right to access health services. Reasonable limits may be justifiable to achieve other objectives, such as protecting public safety, health, or the fundamental rights and freedoms of others.¹² The balancing of rights must be done in context.¹³ Courts will consider the degree to which an act in question interferes with a sincerely held religious belief and determine whether it interferes in a manner that is more than trivial or insubstantial.¹⁴

What does an effective referral involve?

An effective referral involves taking the following steps:

1. The physician must take positive action to ensure the patient is connected with another physician, health-care professional, or agency. The physician can take these steps themselves or assign the task to someone else (i.e., their designate), so long as this other person complies with CPSO’s expectations.
2. The effective referral must be made to a non-objecting physician, health-care professional, or agency that is available and accessible to the patient. The physician, health-care professional, or agency to which the effective referral is made cannot have conscientious or religious beliefs that would impact patient access to the service, treatment, or procedure, must be operating and/or accepting patients, and must be in a location that is reasonably physically accessible to the patient or accessible via virtual care, where appropriate.
3. The effective referral must be made in a timely manner so that the patient will not experience an adverse clinical outcome due to a delay in making the effective referral. A patient would experience an adverse outcome due to a delay if, for example, the patient is no longer able to access the service, treatment, or procedure (e.g., for time-sensitive matters such as emergency contraception or abortion); their clinical condition deteriorates; or their untreated pain or suffering is prolonged.

An effective referral does not:

• necessarily require that the physician make a formal clinical referral (i.e., a written request for the provision of expert services by another physician to a patient)¹⁵;
• require that the physician assess the patient or determine whether they are a suitable candidate, or eligible, for the service, treatment, or procedure; or
• guarantee that the patient will receive the service, treatment, or procedure as they may ultimately not choose that particular clinical option or be a suitable or eligible candidate for it; or
• require that the physician endorse or support the service, treatment, or procedure.

What are some examples of an effective referral?

When making an effective referral, you will need to use your professional judgment to determine what specific action to take, as some patients may need more assistance than others. A patient may have greater needs and vulnerability (e.g., due to a lack of resources, location, marginalization, and/or the nature of their health condition). You will also need to consider whether the service, treatment, or procedure can be accessed by the patient directly or whether a clinical referral is required (e.g., to access a specialist) from you or your designate. Even where patients can access services directly, many patients may require their physicians’ assistance in doing so.

It is important that a patient does not feel abandoned when seeking to be connected to a service, treatment, or procedure to which their physician objects. It would be prudent for you or your designate to discuss with the patient whether they would like you or your designate to follow up with them.

When a patient is particularly vulnerable and/or has urgent needs, you may need to take additional steps to ensure they are connected to an available and accessible provider, unless the patient has indicated that they prefer otherwise. This may mean verifying that the provider to whom you referred the patient continues to be available and accessible, confirming whether the patient was connected, and/or taking another action if the patient was not connected. For example, if the first action you took was to provide the patient with a contact number for a non-objecting, available, and accessible physician, the next action may be to directly contact another physician, health-care professional, or agency on the patient’s behalf and arrange for them to be seen.

The following is a non-exhaustive list of actions physicians or their designate can take:

• Contacting a non-objecting, available, and accessible physician or other health-care professional and arranging for the patient to be seen.
• Making a clinical referral to a non-objecting, available, and accessible physician or other health-care professional to access the service, treatment, or procedure (e.g., a fertility specialist).
• Partially transferring¹⁶ the patient’s care to a non-objecting, available, and accessible physician or other health-care professional with whom the patient can explore all options in which they have expressed an interest. This other physician or health-care professional could make a clinical referral if it is required.
• Connecting the patient with an agency charged with facilitating referrals for the service, treatment, or procedure, and arranging for the patient to be seen at that agency. For instance, in the medical assistance in dying (MAID) context, contacting Ontario’s care coordination service, which would connect the patient with a willing provider of MAID-related services. In the context of reproductive care, the physician or their designate could contact the National Abortion Federation’s National Abortion Hotline and/or Action Canada for Sexual Health and Rights’ Access Line.
• In appropriate circumstances (e.g., where the patient does not need assistance), providing the patient with contact information for a non-objecting, available, and accessible physician, other health-care professional, or agency.
• Connecting the patient with the point person in a practice group in a hospital, clinic, or family practice model who will facilitate an effective referral or provide the patient with the services, treatment, or procedure.
• Working in a practice group in a hospital, clinic, or family practice model which identifies patient queries or needs through a triage system. The patient is directly matched with a non-objecting physician in the practice group with whom the patient can explore all options in which they have expressed an interest.

Does the expectation to provide patients with an effective referral apply to faith-based hospitals and hospices?

Yes. Physicians are required to provide patients with access to information, including an effective referral, for the services, treatments, and procedures not provided in the faith-based hospital or hospice.

Can I end the physician-patient relationship because my patient wishes to explore a care option that conflicts with my conscience or religious beliefs?

No. CPSO’s Ending the Physician-Patient Relationship policy states that physicians must not end the physician-patient relationship solely because the patient wishes to explore a care option that conflicts with the physician’s conscience or religious beliefs.

Physicians are obligated to continue to manage other elements of a patient’s care where applicable. For example, if you are a primary care provider, you are obligated to continue to offer comprehensive and continuous care to patients seeking MAID who may still need help managing the symptoms that led to their desire to explore MAID. If the patient’s natural death is not reasonably foreseeable, the physician or nurse practitioner exploring MAID with the patient may also need your assistance to treat the patient’s medical condition by other means.

Resources

Accessibility and accommodation

• Accessibility in Ontario
• OHRC, Duty to Accommodate eLearning module
• OHRC, A policy primer: Guide to developing human rights policies and procedures
• OHRC Policies and Guidelines focusing on specific Human Rights Code grounds

Racism and discrimination

• Dialogue articles on Implicit Bias in Health Care and Treating Patient Bias
• Share Your Story: Indigenous-Specific Racism & Discrimination in Health Care Across the Champlain Region
• Call it Out: Racism, Racial Discrimination, and Human Rights
• San’yas Anti-Racism Indigenous Cultural Safety and Training Program

Safe and inclusive spaces

• Dialogue article on Creating An Inclusive Space
• Cultural Religious Competence in Clinical Practice
• Religious Diversity: Practical Points for Health Care Providers
• Dialogue, Obesity Guideline Addresses Root Drivers
• Rainbow Health Ontario Education & Training
• Action Canada for Sexual Health and Rights, A Handbook for health care providers working with clients from diverse communities

Trauma-informed care and gender-based violence

• EQUIP Health Care, Trauma- and Violence-Informed Care (TVIC)
• OAITH Training Portal for those supporting survivors of gender-based violence
• OAITH, Beneath the Iceberg Video Guide

Endnotes

^1. University of Toronto, Family & Community Medicine. (2020). Family Medicine Report: Caring for Our Diverse Populations.

^2. For example, the Federation of Medical Regulatory Authorities of Canada; Royal College of Physicians and Surgeons of Canada; College of Family Physicians of Canada; and the Canadian Medical Protective Association (resources include good practices around cultural safety).

^3. Physicians can use the Ontario government’s Accessibility Standards Checklist to help identify which requirements apply to their office. For example, requirements under the Information and Communication Standards may include ensuring that the physician’s office can communicate with patients in accessible ways (e.g., having documents in accessible formats, providing communication supports upon request,).

^4. For more information, see the Ontario Human Rights Commission (OHRC) eLearning series, Working Together: The Code and the AODA.

^5. The use of an interpreter would likely involve the disclosure of patient personal health information (PHI) by the physician to the interpreter. Physicians must have legal authority (e.g., patient consent) before disclosing any PHI to an interpreter.

^6. For more information on accommodations for Indigenous spiritual practices, see Section 11 of the OHRC’s Policy on preventing discrimination based on creed.

^7. For more information on undue hardship and other limits on the duty to accommodate, see the OHRC’s Policy on ableism and discrimination based on disability, including Section 9, “Undue Hardship” and “Balancing the duty to accommodate with the rights of other people” under Section 10 “Other limits on the duty to accommodate.”

^8. It is important that physicians who receive this documentation do not use their own assumptions and observations to second-guess this confirmation. CPSO’s Third Party Medical Reports policy sets expectations that would apply to providing third party medical reports, including documentation for a service and/or support animal.

^9. See the Ontario government’s website for more information about service animals.

^10. Canadian Journal of Physician Leadership. (2021). Fostering inclusion of physicians with disabilities at The Ottawa Hospital.

^11. 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, s 2(a).

^12. R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295 at para 95.

^13. Ontario Human Rights Commission, Policy on Competing Human Rights.

^14. Syndicat Northcrest v. Amselem, [2004] 2 S.C.R. 551 at paras 59-61.

^15. This definition has been adopted from the definition of “referral” set out in the Ontario Health Insurance Program’s Physician Services – Schedule of Benefits.

^16. In this situation, the physician would only transfer the care that they choose not to provide for reasons of conscience or religion. This partial transfer of care is not equivalent to ending the physician-patient relationship. The Ending the Physician-Patient Relationship policy states that physicians must not end the physician-patient relationship solely because the patient wishes to explore a care option that the physician chooses not to provide for conscience or religious reasons.