Doctors and our medical associations are facing more and more challenges to our right to use evidence-based medical care in Canada. This presents an opportunity to strengthen medical care but, unfortunately, it also puts medical care at risk.
I recently wrote an article in The Medical Post about The Canadian Medical Association's lawsuit against Alberta's bill 26 that forces doctors to withhold necessary gender-affirming care for those with gender dysphoria. It illustrates the complexities of the problems in preserving medical care.
Dr. Amir Attaran, Professor in the Faculties of Law and School of Epidemiology and Public Health at the University of Ottawa with expertise in health and law, as well as being an active litigator, is uniquely positioned to understand the complexities and gave his opinions on the broader issues we're facing.
Dr. Attaran explained that every lawsuit won sets a precedent in Canada’s legal system and the CMA lawsuit, fought under section 2 (a) of Canada's Charter of Rights and Freedoms as a freedom of conscience issue, sets a precedent with unintended consequences.
Dr. Attaran said, "Gender dysphoria is a medical problem of the patient. It's not a problem, except peripherally, with the conscience of the doctor. By making this about the conscience of the physician, the CMA does two things. One, it's not practicing patient-centred medicine, this is a doctor-centred lawsuit. Second, it is giving credence to a legal theory that has pretty much been dominated by those on the outside that are trying to destroy the standard of care.
"So ironically the CMA reaches for the freedom of conscience in the way that others did when they were trying to destroy the standard of medical care."
Dr. Attaran gives a few examples to clarify this, one of which is antivax doctors claiming their conscience didn't allow them to vaccinate or refer patients for vaccines, "This is saying doctors are more important than the patients. It's a knife that undoes a considerable amount of medical ethics - instead of the idea of patient autonomy and care, its equipping the doctor with rights that can be used for opposite purposes." It should be noted that any doctor can refuse to give any treatment but they have a duty of care and must refer patients to a doctor who will provide this care if they will not.
Abortion in Canada is protected under section 7 of the Charter of Rights and Freedoms. ln the 1988 Supreme Court case R. v Morgentaler, section 7 of the Charter of Rights and Freedoms was used and the court ruled that the law on abortion in the Criminal Code violated a woman’s right to “life, liberty and security of the person.” This made abortion legal in Canada as a medical procedure, protecting women's right to healthcare. Could the rights of patients with gender dysphoria be better protected that way?
Dr. Attaran said, "Exactly."
Our profession should give serious consideration to Dr. Attaran's concerns not just for this lawsuit but for anytime we reach for the Charter of Rights and Freedoms. And make no mistake, we'll be reaching for protections for patient care more and more.
We have very active groups, whether they be antivaxxers or antitrans groups, who are attempting to limit medical care, using medical access as the forefront of their fight. If medicine is to maintain it's evidence-based, patient-centred care, it must now recognize that it's at risk and learn how to protect it legally, without unintended consequences for patients.
Few doctors have legal training but in today's climate, we had better find a way to get the legal protections for patient care because the extremists are coming after our patients and the times, they are a'changing.
Sad that Canada has a variant of the same fanaticism that we suffer south of the border.
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