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Appeal court says doctors have to give referrals for services they oppose

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TORONTO — Ontario’s highest court ruled Wednesday that doctors in the province must give referrals for medical services that clash with their religious beliefs, calling it a compromise that balances the rights of physicians and the interests of patients.

In a unanimous ruling, a three-judge panel dismissed an appeal seeking to overturn a divisional court decision that upheld the requirement for an “effective referral,” an effort to connect patients with another, willing health-care provider. 

The requirement is part of a set of policies issued in 2016 by the College of Physicians and Surgeons of Ontario to address issues surrounding, among other things, assisted dying, contraception and abortion.

“The issues raised in this proceeding present difficult choices for religious physicians who object to the policies, but they do have choices,” the appeal court wrote.

“While the solution is not a perfect one for some physicians, such as the individual appellants, it is not a perfect one for their patients either. They will lose the personal support of their physicians at a time when they are most vulnerable.”

The policies “represent a compromise,” the court wrote. 

“They strike a reasonable balance between patients’ interests and physicians’ Charter-protected religious freedom. They are reasonable limits prescribed by law that are demonstrably justified in a free and democratic society.”

The college, which regulates doctors in Ontario, called the ruling a victory for patients.

“The court has recognized the importance of ensuring patients get access to the care they need,” said Dr. Nancy Whitmore, its registrar and CEO. “Our effective referral policy ensures equitable access to health care, particularly on the part of the more vulnerable members of our society while respecting the rights of all of those involved.”

Those behind the appeal expressed their disappointment at the outcome of the case, saying the decision will put some physicians in an impossible position.

“Ultimately it is patient care that suffers, as our doctors will retire early, relocate, or change fields,” said Dr. Ryan Wilson, president of Canadian Physicians for Life, one of three professional organizations involved in the appeal, along with five individual doctors.

“For many, their religious and conscience rights are being violated and they won’t be able to practise medicine in Ontario.”

The appeal challenged a ruling last year by the divisional court, which found that while the referral requirement does infringe on doctors’ religious freedom, the benefits to the public outweigh the cost to physicians.

The lower court noted an effective referral is not as involved as a formal one, in which a doctor is required to provide a letter and arrange an appointment with another physician. It said doctors can ask staff to handle the effective referral, or choose to specialize in a type of medicine where these issues are less frequent.

In the appeal, the group of doctors argued the ruling was unreasonable because it gave more weight to an assumed problem with access to health care than to a real infringement of doctors’ rights.

The group — which includes the Christian Medical and Dental Society of Canada, the Canadian Federation of Catholic Physicians’ Societies and Canadian Physicians for Life — said there is no evidence that patients would be harmed by not receiving a referral.

It also alleged the court erred in saying doctors could pick specialties where fewer moral conflicts arise, arguing that presumes physicians can easily switch jobs.

The group also introduced new evidence in the appeal, arguing Ontario’s Care Co-ordination Service meant to help navigate the assisted dying process was now accessible to the public rather than only physicians and could thus replace an effective referral.

The appeal court agreed with the divisional court that “as a matter of logic and common sense” the requirement for an effective referral promotes equitable access to care, particularly for vulnerable patients.

It also found that the self-referral method proposed by the doctors’ group would not meet the needs of patients seeking “the most intimate and urgent medical advice and care.”

“It is impossible to conceive of more private, emotional or challenging issues for any patient,” the appeal court wrote. “Given the importance of family physicians as ‘gatekeepers’ and ‘patient navigators’ in the health-care system, there is compelling evidence that patients will suffer harm in the absence of an effective referral.”

While the doctors’ group argued the requirement will force physicians to leave the province or cease practising medicine, which would harm the public, the appeal court noted no evidence to that effect was presented.

Changing the scope of their practice may require sacrifices from physicians, the appeal court found. However, “the appellants have no common law, proprietary or constitutional right to practise medicine,” it said. 

The college had brought new evidence on appeal suggesting doctors could change or narrow the scope of their practice without resorting to retraining. Its expert witness said some areas of medicine are unlikely to encounter requests for assisted death or reproductive health issues, including hair restoration, sport and exercise medicine, hernia repair and aviation examinations.

Paola Loriggio, The Canadian Press



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Health

Lyme-infected ticks are so common in parts of Canada, testing no longer done

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OTTAWA — Lyme disease has settled so deeply into parts of Canada many public health units now just assume if you get bitten by a tick, you should be treated for the potentially debilitating bacteria.

In Ottawa, where more than half of the ticks tested in some neighbourhoods carry the bacteria that causes Lyme disease, the public-health unit no longer bothers to test ticks because it’s assumed they carry the illness.

Dr. Vera Etches, the top doctor at the health unit, says that means if a tick is found on a person, and is believed to have been there for more than 24 hours, then the patient should get antibiotics to prevent Lyme infection.

After three days, preventive treatment won’t work so patients then wait for symptoms or enough time for antibodies to evolve to show up on a test.

Similar rates of Lyme disease have been found in parts of every province except Alberta, Saskatchewan, Prince Edward Island and Newfoundland and Labrador, but the disease is marching further afield every year.

Lyme disease began appearing in Canada in the early 1980s but it has only been since about 2012 that the ticks that carry the bacteria have become plentiful, mostly due to warmer winters that allow more of them to survive.

The Canadian Press

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Health

Premier wants answers on mental health detainee who fled, calls man a ‘nutcase’

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Premier Ford

TORONTO — Ontario’s premier vowed Thursday to get answers on how a patient detained at a mental health hospital for killing his roommate managed to flee, calling the man a “nutcase,” as two organizations involved launched internal reviews.

Zhebin Cong, who was found not criminally responsible for the death of his roommate, had been on an unaccompanied trip into the community from the Centre for Addiction and Mental Health on July 3 when he failed to return, the hospital said.

CAMH said it reported the 47-year-old’s disappearance later that day to police, who issued a notice asking for the public’s help in finding the man nearly two weeks later. Police say Cong has fled the country and they are working with international law enforcement agencies to track him down.

Toronto police have said CAMH told them Cong presented a low risk to public safety, but the Ontario Review Board, which evaluates the status and assesses the risk of anyone found not criminally responsible, found in its most recent decision in April that he continued to pose a significant threat to public safety.

Premier Doug Ford phoned in to a talk radio show Thursday on NewsTalk1010 to say he’s “disgusted.”

“What is the family thinking of the poor victim that got chopped up with a meat cleaver by this nutcase and then they let him loose out on the streets,” he said.

Ford said he would be speaking with Toronto police, the review board and CAMH.

“Someone’s going to be answering because if you’re calling this low risk, what is high risk?” he said. “These crazy, crazy people that want to go around chopping people up, they’re out on the streets.”

Toronto Mayor John Tory called on the provincial government to launch an independent review.

“I believe such a review could work with CAMH and the Ontario Review Board to address issues related to Mr. Cong’s disappearance from the facility and the city, but there are other questions which go well beyond that and which require answers if the public is to be confident that this kind of thing won’t happen again,” Tory said in a statement.

He said important questions include when the police were notified, what they were told, did Cong have a passport, and how did he manage to leave the country given his status.

A spokesman for Public Safety Minister Ralph Goodale didn’t answer a question on whether the federal government was looking into how Cong left the country.

“The recent passage of our Entry/Exit legislation will require airlines to share their passenger manifests in advance, enabling law enforcement to better respond to the outbound movement of known high-risk travellers before their actual departure,” Scott Bardsley said in a statement.

CAMH said it is doing an internal review and is reassessing all existing passes and privileges for patients, especially those who have unsupervised access to the community.

President and CEO Catherine Zahn said in response to the premier’s comments that the hospital takes the incident extremely seriously.

“The mental health system has moved from resignation to recovery, and from institutionalization to integration,” she said in a statement. “Nevertheless, it is clear that there is still work to do to address misperceptions surrounding mental illness, as well as the prejudice and discrimination faced by those who live with mental disorders.”

The CEO of the Canadian Mental Health Association called the premier’s language unfortunate.

“We understand the concerns about the safety of all of our citizens and I share the premier’s concern on that front, but we’re in the business of breaking down stigma and raising the narrative of how we talk about mental illness as a society,” said Camille Quenneville.

“So that kind of language is very disappointing. It makes it much more difficult for individuals who are struggling to step forward and seek the help that they need…There are many, many people who have a diagnosis of schizophrenia who lead healthy, productive lives. I don’t want the public to believe that that diagnosis is automatically going to lead to violent behaviour.”

Solicitor General Sylvia Jones, when asked about Ford’s comments, said “emotions are high right now.”

“The individual in question, frankly, did a very heinous crime so the community is concerned,” she said. “What the premier was communicating was the strong emotion that people feel about ensuring their safety is protected.”

Toronto Police Chief Mark Saunders said Thursday that in addition to investigating how Cong fled — including checking if he received help to leave the country — the force is doing an internal review to look at their own processes, training and communication with community agencies.

“I can clearly say there were some gaps,” he said. “The fact that this was reported to us on July 3rd and then…it’s 11 days before it goes out to the public. That definitely causes some issues for us to have a look at. That’s the first thing I’m going to do.”

Records from the Ontario Review Board show Cong killed his roommate with a meat cleaver in 2014 and was found non-criminally responsible on a charge of second-degree murder as a result of his mental illness.

Cong was an in-patient at the secured forensic unit of CAMH and deals with schizophrenia, the records show.

He was granted a pass to the community by medical officials that allowed him to leave the hospital for a fixed purpose on the condition that he return at a fixed time.

In its April decision, the board found Cong’s condition had slightly improved with ongoing anti-psychotic medication, but that he did not fully understand his mental illness, its symptoms and his risk of relapse and violence.

Review boards — independent tribunals made up of at least five people, including at least one psychiatrist — conduct annual reviews of people found NCR and can order that the person remain detained in a hospital, with varying levels of privileges, release the person on a conditional discharge or order an absolute discharge, based on risk.

The review board system lets NCR people into the community — once they’re deemed ready — for short periods of time under close supervision to see how well they can cope. If they do well, they can be granted more privileges at subsequent hearings, step by step. If they don’t fare well, the review board pulls the reins of supervision a little tighter.

— with files from Shawn Jeffords

Allison Jones, The Canadian Press

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