SUBMISSION OF ARCH DISABILITY LAW CENTRE
To the College of Physicians and Surgeons of Ontario
In response to
The College’s Consultation on its
Draft Policies:
“Establishing a Physician-Patient Relationship” and
“Ending the Physician-Patient Relationship”
May 12, 2008
ARCH Disability Law Centre
425 Bloor Street East, Suite 110
Toronto, Ontario
M4W 3R5
Tel.: (416) 482-8255 Toll-free: 1-866-482-2724
TTY: (416) 482-1254 Toll-free: 1-866-482-2728
Fax: (416) 482-2981 Toll-free: 1-866-881-2723
www.archdisabilitylaw.ca
1
ABOUT THIS SUBMISSION
Thank you for the opportunity to comment on the draft policies “Establishing a
Physician-Patient Relationship” and “Ending the Physician-Patient Relationship”
(Draft Policies). Since ARCH’s mandate is to defend and advance the equality
rights of people with disabilities, this submission focuses on those aspects of the
Draft Policies that specifically impact people with disabilities.
ARCH urges the College of Physicians and Surgeons of Ontario (CPSO) to
ensure that the final policies address our concerns because of the important role
medical services play in the lives of people with disabilities, in terms of both their
health and their access to government programs and services. People with
disabilities have greater unmet medical needs than the rest of Canadians. People
with disabilities also experience multiple disability-related barriers when
accessing medical services. The Draft Policies have the potential to improve this
situation by ensuring that physicians do not refuse medical services to people
with disabilities in a discriminatory manner. This requires that the policies be
clarified so as not to inadvertently encourage such discrimination, and that the
policies explain physicians’ human rights obligations in a comprehensive way.
Throughout this submission, we make recommendations for achieving both of
these requirements. We have also included a summary of our recommendations.
Our submission is based on the observations and knowledge of ARCH staff and
board members, the experiences of people with disabilities that are brought to
our attention through our Summary Advice and Referral Service, and supporting
literature. The examples we use in this submission are all based on real
situations experienced by people with disabilities. We report the examples in a
generic form to protect anonymity.
ABOUT ARCH
ARCH is a not-for-profit community legal aid clinic dedicated to defending and
advancing the equality rights of people with disabilities in Ontario. ARCH is
governed by a volunteer board of directors, a majority of whom are people with
disabilities. ARCH provides Summary Advice and Referral Services to Ontarians
with disabilities and represents individuals as well as disability organizations in
test case litigation at all levels of tribunals and courts. We provide education to
people with disabilities on disability rights and to the legal profession on disability
law. We also make submissions to government on matters of policy and law
reform. Information about ARCH can be obtained from our web site at
www.archdisabilitylaw.ca.
2
SUMMARY OF RECOMMENDATIONS

Both policies should begin by stating that physicians must ensure that
medical services are not denied or terminated unless this is done in a
manner that is consistent with Ontario’s Human Rights Code.

Both policies must clearly and comprehensively explain the nature of
physicians’ human rights obligations, including the obligation not to
discriminate and the duty to accommodate to the point of undue hardship.

Both policies must clearly distinguish between physicians’ human rights
obligations and their discretion to enter into or terminate a physicianpatient relationship for reasons related to clinical competency, scope of
practice and time.

Parts of the policies that conflate human rights obligations with physician
discretion should be clarified. This includes lines 35-41 of the policy on
establishing a physician-patient relationship and lines 33-35 of the policy
on ending the physician-patient relationship.

Both policies should include a legal definition of disability or refer
physicians to the definition of disability contained in the Human Rights
Code.

Both policies should better reflect the currently accepted understanding of
disability and should include more references to the duty to accommodate.
For example, the footnote to lines 71-72 of the policy on ending a
physician-patient relationship should include a statement that the
physician must consider whether the patient’s behaviour can be
accommodated. Similarly, a footnote to line 75 of that policy should be
added, which directs physicians to the duty to accommodate
communication disabilities.

Both policies should alert physicians to the presence of other legislation,
such as the Accessibility for Ontarians with Disabilities Act that places
legal obligations on them that may be relevant to establishing or ending a
physician-patient relationship.
3
A. CONTEXT RELEVANT TO THIS SUBMISSION
It is important that the CPSO understand the context in which people with
disabilities interact with physicians, the kinds of barriers and unequal treatment
people with disabilities experience when accessing medical services, and the
consequences that the lack of access to physicians has for some people with
disabilities. This contextual understanding has informed the recommendations
ARCH makes in this submission and should inform the revisions the CPSO
makes to the Draft Policies.
A.1. Experiences of People with Disabilities: Inaccessible Medical Services
and Unmet Needs
The CPSO’s “Backgrounder on Establishing a Physician-Patient Relationship”
recognizes that Ontario is currently facing a physician shortage. Some Ontarians
therefore do not have family physicians or access to medical services. ARCH
recognizes that this is an unfortunate reality that affects all Ontarians, and we are
concerned that people with disabilities may be disproportionately impacted by the
shortage of physicians. This disproportionate impact needs to be specifically
addressed by the Draft Policies.
The examples below illustrate ways in which medical services are not available
or accessible or do not meet the needs of people with disabilities. The barriers
people with disabilities face occur at all stages of the physician-patient
relationship. While some of the barriers prevent the establishment of a physicianpatient relationship altogether, others interfere with it to such an extent that the
relationship is ultimately terminated. For example, attitudinal barriers may
prevent people from being accepted as new patients, while physicians’
unwillingness to communicate with patients who do not communicate verbally
may result in termination of physician-patient relationships.
Examples
Through our Summary Advice and Referral Service, ARCH has received calls
reporting that people with disabilities experience barriers and unequal treatment
when accessing medical services. Some examples include:
 A physician’s refusal to provide services to a person with multiple
disabilities because the multiple disabilities were considered to be too time
consuming to treat;
 A physician’s refusal to accept a person with a disability as a new patient
based on the physician’s erroneous assumptions about the person’s
medical needs related to his disability;
4
 A physician’s refusal to accept a person as a patient because she uses a
service animal;
 A hospital or physician’s office, including washrooms, may not be
accessible. In particular, examination tables are often not usable by
people with disabilities;
 A person with a communication disability decided to withdraw from a
physician-patient relationship because of the physician’s failure to
communicate with her;
 A physician may become impatient when it takes longer for a person with
a disability to get undressed and get onto an examination table;
 A physician may treat people with disabilities as curiosities (“I haven’t
seen one of you since medical school”) and focus more on the “disability”
than general health.
Relevant Literature
A review of the literature confirms the reports we have received.

A 2006 article in the Canadian Medical Association Journal states that:
…to consider the accessibility of health care for people with
disabilities is to see that Canada already has a 2-tier health
system. … In spite of their potential complexity, many of the basic
health care needs of people with disabilities are the same as
those of the general population. Yet people with disabilities do not
receive the same level of primary and preventive care as others
do. Routine interventions such as a Pap smear or prostate exam
are not consistently provided to them. Even more disturbing,
people with disabilities are 4 times more likely as able-bodied
people to report an inability to obtain required medical care when
it is needed.1

A survey of Canadian health care services reported that despite high rates
of utilization, people with disabilities continue to report high rates of unmet
need, especially in the areas of emotional and mental health needs.2
Meredith B. Marks & Robert Teasell, “More than ramps: accessible health care for people with
disabilities” (2006) 175 (4) CMAJ 329 at 329, online: CMAJ <www.cmaj.ca/cgi/reprint/175/4/329>.
1
2
Mary Ann McColl et al., Health Status & Health Care in the Disability Community in Canada:
Final Report to Canadian Population Health Initiative (Kingston: Queen’s Centre for Health
Services, 2003). The report warns that there may be a systemic bias against people with
5

One report showed that in Canada, people with disabilities have a greater
likelihood of requiring medical care but not receiving it: 14.6% of people
with disabilities, but only 3.9% of people without disabilities, reported that
they were unable to obtain the health care they needed.3

Another report found that a significant proportion of people with physical
disabilities in Toronto felt that they were experiencing difficulty accessing
adequate primary health care services because of their disability. About
8% of respondents reported having been refused medical treatment by a
family doctor because of their disability. 32% of respondents also reported
difficulty in physically accessing their family doctor’s office, 38.3% had
difficulty accessing equipment, and 22.9% had difficulty accessing the
washroom in their family doctor’s office.4

Literature from jurisdictions outside of Canada confirms that adequate
access to health care and discrimination in the provision of health services
are concerns shared by people with disabilities in other parts of the world. 5
disabilities in the primary care system, if for example physicians are not appropriately
compensated for taking people with disabilities into their caseloads.
Other studies have also documented high rates of utilization of physicians by people with
disabilities. The Canadian Council on Social Development reported that in 2000/01, Ontarians
with disabilities were more likely to have a regular medical doctor than Ontarians without
disabilities. Canadian Council on Social Development, Disability Information Sheet, No. 13
(Ottawa: CCSD, 2004) at 2, online: CCSD <www.ccsd.ca/drip/research/drip13/drip13.pdf>.
3
Canadian Council on Social Development, Disability Information Sheet, No. 9 (Ottawa: CCSD,
2003) at 2-3, online: CCSD <www.ccsd.ca/drip/research/dis9/dis9.pdf>. The most prevalent
reason cited by people with and without disabilities for not receiving necessary health care was
long waiting times. However, people with disabilities were more likely than people without
disabilities to report that health care was not available when required.
Albina Veltman et al., “Perceptions of Primary Healthcare Services among People with Physical
Disabilities: Part 2 Quality Issues” (2001) 3:2 Medscape General Medicine at 18, online: DisAbled
Women’s Network Ontario (DAWN) <http://dawn.thot.net/Part2.html>.
4
5
Ian Basnett, "Attitudes and Decisions of Health Care Professionals" in Albrecht, Seelman and
Bury, eds., Handbook of Disability Studies (Thousand Oaks, CA: Sage Publications Inc., 2001).
Ian Basnett explored how American health professionals perceive and treat people with
disabilities. He found that health professionals were pessimistic about life with a disability, as
reflected in decisions about health interventions at the end of life. He concluded that many
physicians are not trained to understand the perspective of people with disabilities and make
appropriate judgements about their quality of life. Basnett further states at 453: “Discrimination,
negative attitudes, segregation, stigmatization and poor service provision have been documented
in many users’ accounts and reports. Persistently emphasizing the dependency of disabled
people in attitudes and interactions may encourage disabled people to accept dependency and
adopt that role, making it more difficult to achieve independence. Discriminatory attitudes, or a
simple lack of awareness of the lives disabled people lead and their quality, mean that the
behaviour of some professionals and the decisions they make may be questionable.”
6
Indeed, the United Nations Convention on the Rights of Persons with
Disabilities specifically recognizes the importance of access to health care
for people with disabilities. Article 25 of the Convention provides that
states parties shall prevent discriminatory denial of health care or health
services on the basis of disability.6
Two themes emerge from the experiences described by people with disabilities
and the literature. First, people with disabilities often do not have access to
physicians. Second, people with disabilities experience discriminatory treatment
in their receipt of medical services. This may be unintentional and inadvertent, or
may occur as a result of physicians’ discriminatory practices.
A.2. Impact of Inaccessible Medical Services and Unmet Needs: Health,
Income and Standard of Living
The inability to access physicians and medical services affects the lives of people
with disabilities in the following fundamental ways:
First, some people with disabilities need to access medical services more
frequently than people without disabilities.7 Lack of access to a physician
compromises the health of people with disabilities, some of whom are particularly
in need of medical treatment.
Second, many people with disabilities depend on government social programs
and benefits for their income,8 many of which require medical documentation in
order to qualify for and receive benefits. If medical services are not available for
people with disabilities, their ability to access these programs will also be
jeopardized. For example, in order to qualify for the Ontario Disability Support
Program (ODSP), a member of the College of Physicians and Surgeons of
Ontario, the College of Psychologists of Ontario, the College of Optometrists of
Ontario, or certain members of the College of Nurses of Ontario must verify that
an applicant meets the definition of disability contained in the Ontario Disability
Support Program Act.9 Other programs, such as Canada Pension Plan Disability
6
Convention on the Rights of Persons with Disabilities, G.A. Res. 61/106, 76th plen. Mtg., U.N.
Doc A/Res/61/106 (Dec. 13, 2006) [Convention]. Canada signed the Convention on March 30,
2007. On May 2, 2008 Parliament unanimously approved a motion calling for Canada to ratify the
Convention.
7
McColl, supra note 2.
8
People with disabilities have lower incomes and lower rates of employment than people without
disabilities. Human Resources Development Canada, Disability in Canada: A 2001 Profile
(Gatineau: Queen’s Printer, 2003), Section 5. A more recent (2006) version of this data is
available, but the analysis of the employment and income statistics is not yet publicly available .
9
Section 3 of the Ontario Disability Support Program Act, S.O. 1997, c. 25 states that income
support shall be provided to a person with a disability as determined under s. 4(1) of the Act.
7
benefits and Employment Insurance sickness benefits, also require medical
documentation.10 Without access to a physician or another required health care
provider, people with disabilities may be prevented from accessing income
supports.
Third, lack of access to a physician prevents people with disabilities from
accessing other essential programs that require medical documentation. For
example, in order to access funding for most assistive devices through Ontario’s
Assistive Devices Program, the person’s assistive device must be assessed and
authorized by a qualified health care professional.11 Similarly, to qualify for an
Accessible Parking Permit, a person must be certified by a health care
practitioner as having a disability.12
Thus, for people with disabilities, lack of access to physicians may negatively
impact not only their health, but also their income and their eligibility for essential
government programs. Without these, people with disabilities may not be able to
afford basic necessities, such as adequate housing or essential equipment such
as wheelchairs.
The CPSO has an opportunity, through the Draft Policies, to address some of
these inequalities and to reduce the disproportionate impact the shortage of
physicians has on Ontarians with disabilities. In order to limit the negative
impacts that can result from lack of access to physicians, the Draft Policies must
make it clear that medical services can only be denied in limited circumstances,
in compliance with all applicable laws.
Section 46(1) of O. Reg. 222/98 sets out who has the power to verify whether an applicant meets
the statutory definition of disability in s. 4(1) of the Act. According to that section, only a member
of the College of Physicians and Surgeons of Ontario, the College of Psychologists of Ontario,
the College of Optometrists of Ontario, or certain members of the College of Nurses of Ontario
may verify that a person has a physical or mental impairment and its likely duration.
10
Canada Pension Plan Regulations, C.R.C., c. 385, ss. 68-69; Employment Insurance
Regulations, S.O.R./96-332, s. 40(1).
See Ministry of Health and Long-Term Care, “Assistive Devices Program,” online: Ministry of
Health and Long-Term Care, <www.health.gov.on.ca/english/public/program/adp/adp_mn.html>.
11
See Ministry of Transportation, “Getting or Replacing an Accessible Parking Permit,” online:
Ministry of Transportation <www.mto.gov.on.ca/english/dandv/vehicle/app.htm>. To qualify for an
Accessible Parking Permit (APP), the individual must be certified by an APP program recognized
health practitioner as having one or more of a list of conditions. A licensed physician,
chiropractor, registered nurse practitioner (extended class), physiotherapist or occupational
therapist, chiropodist and podiatrist may certify the applicant's condition on the permit application.
12
8
B. COMMENTS ON CPSO’S DRAFT POLICIES
In ARCH’s view, many of the barriers and unequal treatment that people with
disabilities experience when interacting with physicians can and must be
prevented. One way to achieve more equitable access to medical services is to
ensure that physicians are aware of their human rights obligations and what
those obligations mean in the context of providing medical services to people
with disabilities, both at the establishment and termination of those services.
ARCH is pleased that the Draft Policies refer to physicians having a legal
obligation to provide medical services without discrimination. However, ARCH is
concerned that the manner in which the policies treat physicians’ human rights
obligations lacks clarity and detail. Neither policy accurately or comprehensively
articulates human rights principles as they apply to the provision of medical
services, and neither policy contains enough content to address disability-related
concerns. The recommendations that follow suggest how the policies could
better incorporate human rights principles and more clearly explain physicians’
human rights obligations.
B.1. Primacy of Physicians’ Human Rights Obligations
Canadian law recognizes the fundamental nature and importance of the rights
and protections afforded by human rights laws, and consequently grants these
laws precedence over others. Human rights laws are considered to be quasiconstitutional. The Supreme Court of Canada has described human rights
legislation as having elevated legal status and as being more important than all
other laws.13 In addition, s. 47 of Ontario’s Human Rights Code [Code] provides
that the Code has primacy over other Acts or regulations, unless the latter
specifically provide that they are to apply despite the Code.14
In ARCH’s view it is essential that physicians appreciate the importance and
seriousness of their human rights obligations.15 As a result of the Code’s quasi13
Tranchemontagne v. Ontario (Director, Disability Support Program), [2006] S.C.J. No. 14, 2006
SCC 14 at 33; British Columbia (Public Service Employee Relations Commission) v.
B.C.G.S.E.U. (1999), 176 D.L.R. (4th) 1 at 20 (S.C.C.) [Meorin]; Insurance Corporation of British
Columbia v. Heerspink (1982), 137 D.L.R. (3d) 219 (S.C.C.) at 229.
14
R.S.O. 1990, c. H.19, s. 47(2) [Code].
The seriousness of physicians’ human rights obligations stems not only from the quasiconstitutional status of the Code, but also from legislation that regulates the practice of medicine.
It should be noted that pursuant to s. 1(1)(28) of Professional Misconduct Regulation, O. Reg.
856/93, violating the Code may constitute professional misconduct for the purposes of the Health
Professions Procedural Code, being Schedule II of the Regulated Health Professions Act, 1991,
S.O. 1991, c. 18. Section 1(1)(28) of the Regulation states that contravening a provincial law is an
act of professional misconduct if the purpose of the law is to protect public health or the
contravention is relevant to the physician’s suitability to practise.
15
9
constitutional status, physicians have an overriding obligation to ensure that they
provide medical services without discrimination. This obligation applies in all
aspects of the physician-patient relationship, including physicians’ decisions to
establish a physician-patient relationship, treatment decisions, decisions to
provide information or referrals, and decisions about ending the physician-patient
relationship.
ARCH recommends that both policies begin with a statement that physicians
must ensure that medical services are not denied or terminated unless this is
done in a manner that is consistent with Ontario’s Human Rights Code.
Physicians must also be aware that despite the CPSO’s Draft Policies, any
discriminatory provision of health services based on a ground listed in the Code
could result in a human rights complaint. In other words, a physician cannot rely
on having followed the College’s policies to shield him or herself from a human
rights complaint.
B.2. Physicians’ Duty to Accommodate to the Point of Undue Hardship
In ARCH’s view, it is vital that both policies clearly and comprehensively explain
the nature of physicians’ human rights obligations to their patients so that
physicians have guidance on meeting these obligations. Both policies should
explain that the obligation not to discriminate includes a duty to accommodate
with respect to some of the grounds listed in the Code,16 including disability.
What follows is a brief explanation of the duty to accommodate as it relates to
health care.
Without accommodation, people with disabilities are prevented from doing the
same things as people without disabilities, including accessing and receiving
health care. In the context of health care, accommodation requires that
physicians facilitate access to their services for people with disabilities in a way
that may be different from people without disabilities.
Accommodation must meet the needs of the individual patient and must do so in
a manner that is most respectful of that person’s dignity.17 This may include
16
There is a duty to accommodate with respect to several grounds listed in the Code. For
example, a duty to accommodate exists with respect to family status (see Ontario Human Rights
Commission, Policy and Guidelines on Discrimination Because of Family Status (Toronto: OHRC,
2007)), sex (see Ontario Human Rights Commission, Policy on Discrimination because of
Pregnancy and Breastfeeding (Toronto: OHRC, 1996)), and religion (see Ontario Human Rights
Commission, Policy on Creed and the Accommodation of Religious Observances (Toronto:
OHRC, 1996)).
17
Ontario Human Rights Commission, Policy and Guidelines on Disability and the Duty to
Accommodate, (Toronto: OHRC, 2000) at 12-13 [Guidelines on Disability], available online:
OHRC <www.ohrc.on.ca/en/resources/Policies/PolicyDisAccom2/pdf>.
10
providing longer appointment times for people who may need more time to
change in and out of their clothes or for people with communication disabilities
who may need more time to express themselves. It may also include permitting
service animals into a medical office or examination room where animals are
otherwise not permitted. Accommodation also requires that physicians take
proactive steps to remove barriers that may prevent people with disabilities from
accessing their services. This may include ensuring that the building in which a
medical office is located, the washrooms and the examination table are
physically accessible to people with mobility disabilities. It may also include
training medical and non-medical staff to interact with patients with disabilities in
a manner that is respectful and that best accommodates the person.18 Physicians
should also ensure that there is a process in place for patients and potential
patients to request accommodations.
Physicians have an obligation to accommodate their patients and potential
patients with disabilities up to the point of undue hardship. The undue hardship
standard is onerous and the Supreme Court has indicated that those seeking to
rely on undue hardship must show that it was impossible to provide the
necessary accommodation.19
The Code provides that the only factors that can be considered in determining
whether the undue hardship standard has been met are costs, outside sources of
funding, and health and safety.20 Generally, costs of providing accommodation
are undue if they are so high that they affect the survival of the business or
change its essential nature.21 Costs cannot be speculative; there must be
objective evidence of how much the accommodation will cost. 22 If the cost of
providing an accommodation is significant, outside sources of funding such as
government grants should be considered. If an accommodation is too large to
implement at one time, it may be phased in. With respect to health and safety,
where these requirements create barriers for people with disabilities, the
accommodation provider should assess whether the requirements can be waived
or modified. 23 There must be objective evidence of the nature of the health or
safety risk and the probability of the risk occurring. To rely on undue hardship as
18
For example, it has been suggested that guidelines be developed to aid primary health care
providers in treating adults with developmental disabilities. See William F. Sullivan et al,
“Consensus guidelines for primary health care of adults with developmental disabilities” (2006) 52
Canadian Family Physician 1410.
19
Meorin, supra note 13 at 25.
20
Code, supra note 14 at s.17(2).
21
Guidelines on Disability, supra note 17 at 30.
22
Ibid. at 31.
23
Ibid. at 34.
11
a justification for not providing an accommodation, a service provider must
demonstrate that health and safety concerns are sufficiently serious so as to
override the principles of equal opportunity and free choice that the Code
protects.24
This is a very brief overview of the duty to accommodate to the point of undue
hardship. For a more detailed explanation of these concepts, ARCH refers the
CPSO to the Ontario Human Rights Commission’s Policy and Guidelines on
Disability and the Duty to Accommodate.25 While not legislation, the Guidelines
are an essential starting point for understanding the duty to make appropriate
accommodations, short of undue hardship, for people with disabilities. In
addition, ARCH has produced a series of fact sheets that provide practical
information on how to interact with people with various disabilities in a manner
that best accommodates their disability. We have attached these fact sheets to
our submission, and they will be available on ARCH’s website shortly.
B.3. Distinction between Obligation not to Discriminate and Physicians’
Discretion
ARCH recommends that both policies articulate physicians’ obligation not to
discriminate when providing medical services as an obligation that is separate
and distinct from the concepts of clinical competency, scope of practice, size of
practice group and discretion to accept new patients or terminate the physicianpatient relationship. ARCH is very concerned that the way in which the policies
are currently worded conflates physicians’ fundamental legal obligation not to
discriminate with concepts of clinical competency, scope of practice, size of
practice, and ability to meet patients’ health care needs. In ARCH’s view, this is
problematic since it can lead to confusion about the nature and extent of
physicians’ human rights obligations.
Too often people with disabilities are denied medical services not because the
physician does not have the skills to provide these services, but because of
physical and attitudinal barriers related to the person’s disability. As the
examples provided above demonstrate, physicians may refuse to accept a
person with a disability as a new patient based on erroneous assumptions about
the person’s medical needs or the length of time it will take to treat the person
because of their disability. While it may be appropriate and responsible for a
physician to refuse to treat a person who has complex medical needs that are
beyond the physician’s expertise, it is almost never appropriate for a physician to
refuse to treat a person simply because that person has a disability. Put another
way, a physician’s obligation to accommodate a patient’s disability is entirely
separate from that physician’s decision as to whether he has the expertise
24
25
DeJager v. Department of National Defence (1986), 7 C.H.R.R. D/3508 (C.H.R.T.) at 3517.
Supra note 17.
12
necessary to meet that patient’s medical needs. ARCH submits that it is
important for the College to articulate this clearly by distinguishing between
physicians’ human rights obligations and their discretion to decline to enter into a
physician-patient relationship or to terminate an existing relationship.
In addition, it is important to note that physicians’ reluctance to accommodate
people’s disabilities, assumptions about the medical needs of people with
disabilities and other attitudinal barriers are easily cloaked in the language of
clinical competency and scope or size of practice. For example, a physician may
state that she will not accept a patient with a disability because the scope of her
practice does not include making home visits when in fact, the patient does not
actually need home visits. Another example is a physician refusing to accept a
person with multiple disabilities as a new patient because the physician does not
have the clinical competency to treat the complex medical issues he assumes
the person has. In ARCH’s view, the policies must clearly distinguish between
physicians’ human rights obligations and discretion to enter into or terminate a
physician-patient relationship so as not to promote this kind of discrimination.
One place where this recommendation should be applied is the first principle of
the Draft Policy on establishing a physician-patient relationship. Lines 35-41of
that policy state that refusing to accept patients based on factors such as
disability without a valid reason related to the physician’s scope of practice
and/or ability to meet patients’ health care needs may violate the Code. This is
an example of a statement that conflates human rights obligations with clinical
competency and scope of practice. The statement is problematic and misleading
as it suggests that scope of practice or ability to meet a patient’s health care
needs are valid reasons for discriminating against a patient by denying medical
services due to the patient’s disability. In law, the only valid reasons for denying
medical services because of a patient’s disability are those that meet the legal
test of undue hardship. In other words, a physician cannot decide to decline a
potential patient because of that patient’s disability unless the physician is unable
to accommodate that patient to the point of undue hardship.
Another example of a statement that is misleading is lines 33-35 of the Draft
Policy on ending the physician-patient relationship. Those lines state that
physicians should carefully evaluate any decision to end care and should use
reasonable efforts to resolve any issues affecting the relationship with the patient
prior to any final decision. In ARCH’s view, while reasonable effort may be an
appropriate standard in some situations, it will not be sufficient in others. If, for
example, the issue affecting the physician-patient relationship relates to a patient
with a disability’s need for accommodation, the physician must do much more
than make reasonable efforts to resolve this issue. As explained above, the
physician has an obligation not to discriminate that takes precedence over his
discretion as to whether to end care. The physician is under a duty to
accommodate the patient’s disability, unless to do so would cause the physician
undue hardship. A physician can decide to end the physician-patient relationship
13
because of a patient’s need for accommodation only if it would be unduly hard to
provide that accommodation.
B.4. Legal Definition of Disability
ARCH recommends that both policies either include a legal definition of disability
or refer physicians to the definition of disability contained in the Code.26 This is
very important, since the legal concept of disability may be quite different from
the concept of disability that physicians employ in their medical practices.
Physicians should be aware that the legal obligation not to discriminate on the
basis of disability refers to a wide range of disabilities.
The current legal approach to disability is referred to as the social model or the
human rights model.27 This approach describes disability as the outcome of the
interaction of the person and his or her environment.28 It recognizes that it is
society’s failure to accommodate the needs of people with disabilities which gives
rise to the ‘disabling disadvantage’ that people with disabilities encounter in their
daily lives, not some inherent mental or physical condition. The older medical
model of disability understood and defined disability in terms of a physical or
mental defect or sickness necessitating medical intervention. The current
approach recognizes that health problems alone do not prevent people from
participating in society. Rather, it is the obstacles in the socio-economic and built
environment that do.29
In addition to including the legal definition of disability, the policies should better
reflect an understanding of the social model of disability. For example, lines 7172 of the Draft Policy on ending the physician-patient relationship state that
26
Section 10(1) of the Code, supra note 14, defines disability as: (a) any degree of physical
disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or
illness and, without limiting the generality of the foregoing, includes diabetes mellitus, epilepsy, a
brain injury, any degree of paralysis, amputation, lack of physical co-ordination, blindness or
visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical
reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device,
(b) a condition of mental impairment or a developmental disability, (c) a learning disability, or a
dysfunction in one or more of the processes involved in understanding or using symbols or
spoken language, (d) a mental disorder, or (e) an injury or disability for which benefits were
claimed or received under the insurance plan established under the Workplace Safety and
Insurance Act, 1997.
27
This model has been accepted and articulated by Supreme Court of Canada jurisprudence, see
e.g. Granovsky v. Canada (Minister of Employment and Immigration), [2000] 1 S.C.R. 703, 2000
SCC 28 at paras. 29-30, and the United Nations Convention, supra note 6.
See Daniel Mont, “Measuring Disability Prevalence,” (March 2007) online: World Bank
<http://siteresources.worldbank.org/DISABILITY/Resources/Data/ MontPrevalence.pdf> at 2-3.
28
29
Ibid. See also Human Resources and Social Development Canada, Advancing the Inclusion of
People with Disabilities (2006) (Ottawa: Social Development Canada, 2006) at 6.
14
violent or aggressive behaviour towards the physician, staff and/or other patients
may cause a breakdown of trust in the physician-patient relationship. The
footnote states that before ending the physician-patient relationship for these
reasons, the physician should consider whether the patient’s behaviour is
treatable and/or transient. This suggests that the only way of dealing with
aggressive behaviour is medical treatment. In contrast, a social model of
disability would shift the focus to the environment and explore whether the
aggressive behaviour could be dealt with by changing or eliminating something in
the environment. Indeed, for people with disabilities, violent or aggressive
behaviour may occur as a result of a disability or medication a person is taking
for a disability. In addition, behaviours may be perceived to be violent or
aggressive when in fact they are not. To better reflect a social understanding of
disability, ARCH recommends that the footnote to lines 71-72 include a
statement that the physician must consider whether the patient’s behaviour can
be accommodated.
Another example of where the social model of disability could be reflected is line
75 of the Draft Policy on ending the physician-patient relationship. It states that a
communication breakdown to the extent that makes it impossible to provide
quality care may be a valid reason for ending the physician-patient relationship.
This statement may inadvertently have a negative impact on people who have
speech disabilities, communication disabilities, intellectual disabilities, psychiatric
disabilities or any other disabilities or medications that affect communication.
Physicians are legally required to accommodate disability-related communication
needs, and should not be permitted to end a physician-patient relationship unless
it would cause undue hardship to provide such accommodation. ARCH
recommends that a footnote to line 75 be added, which directs physicians to the
duty to accommodate communication disabilities.
B.5. References to Other Relevant Legislation
In addition to strengthening the references to human rights obligations, ARCH
recommends that the draft policies alert physicians to the presence of other
legislation that places legal obligations on them that may be relevant to
establishing or ending a physician-patient relationship. One example is the
Accessibility for Ontarians with Disabilities Act (AODA).30
The AODA’s stated purpose is to develop, implement and enforce standards for
accessibility in relation to goods, services, facilities, accommodation,
employment, buildings, structures and premises in Ontario. The AODA requires
the development of accessibility standards, which will eventually become
regulations. On January 1, 2008 the first accessibility standard under the AODA,
30
S.O. 2005, c. 11.
15
the Customer Service Standard, came into effect.31 The standard applies to
doctors or organizations that have more than one employee and provide medical
services to members of the public in Ontario. Among other things, the standard
requires these doctors and organizations to establish policies and practices on
providing services to people with disabilities and allow service animals to enter
the business premises. The standard also requires the training of staff on
interacting with people with disabilities. This may include learning how to use
different communication systems such as a Blissboard, TTY machine or sign
language interpretation.
Other accessibility standards are currently being developed. It is important that
physicians are aware of this, as future standards will place additional legal
obligations on physicians. More information on the AODA, the Customer Service
Standard, and the status of the development of other accessibility standards can
be found at the following link:
www.mcss.gov.on.ca/mcss/english/pillars/accessibilityOntario/.
C. CONCLUSION
Health care is one of the most essential services to Ontarians. This is particularly
true for people with disabilities, who depend on medical services not only for their
health, but also for access to income supports and other government programs.
Given the extremely important role health care plays in the lives of people with
disabilities, physicians must ensure that their services are free from
discrimination and accommodate people with disabilities to the point of undue
hardship.
ARCH urges the CPSO to use this opportunity to ensure that physicians
understand their human rights obligations, to clarify the nature and extent of
those obligations, and to ensure that the final policies do not inadvertently
encourage discriminatory practices.
31
O. Reg. 429/07.
16