Human rights complaints against physicians most often arise when patients believe they have received inadequate care as a result of discrimination. Such issues can often be avoided when physicians take time to explain their actions in treating the patient and the reasons for them.

 

KEY WORDS:  human rights, physician–patient communication, conflict resolution

 

Over the past year, controversy surrounding physicians withholding health services for moral or religious reasons has generated significant media coverage. For example, both the Globe & Mail1 and the National Post2 have published several articles about doctors in Ontario and Alberta declining to prescribe birth control because of conscientious objections. In spring 2015, the College of Physicians and Surgeons of Ontario (CPSO) revised its human rights policy regarding the legal duty of physicians to provide health services free of discrimination. The newly entitled policy, Professional Obligations and Human Rights,3 attempts to elucidate the human rights responsibilities of doctors, with a particular focus on balancing competing physician and patient interests. Top

 

The policy states that physicians are expected to comply with human rights legislation and accommodate patients “in a manner that is respectful of the dignity, autonomy and privacy of the person.” This includes the requirement that doctors who are unwilling to undertake certain care because of moral grounds refer patients in good faith to a “non-objecting, available, and accessible” physician. Top

 

Balancing physician autonomy with patient rights

 

Following publication of the new policy, the CPSO’s website was flooded with online comments suggesting that many members of the medical community believe that the policy and human rights law go too far and trample on doctors’ fundamental freedoms. Two Christian advocacy groups representing physicians have launched a legal challenge in the Ontario Superior Court asserting that the policy violates doctors’ freedom of religion under the Canadian Charter of Rights and Freedoms. Top

 

A review of recent human rights decisions highlights a dramatically different reality. Contrary to mainstream images of doctors being coerced to act against their personal beliefs, most human rights cases regarding medical services deal with patients’ complaints about inadequate care. Although the matter of competing human rights claims raises an important social topic, a survey of human rights jurisprudence from the past few years reveals that the majority of reported cases involve patients perceiving mistreatment by their doctor because of the patient’s protected personal characteristics, as opposed to denial of services because of the physician’s religious beliefs. As such, it may be helpful for physicians to understand the more common types of interactions that can result in patient complaints to human rights tribunals. Top

 

Throughout Canada, human rights legislation protects individuals from experiencing discrimination and harassment in certain social areas (e.g., housing, employment, services, vocational association, etc.) on the basis of specific protected personal grounds (e.g., age, gender, race, disability, sexual orientation, family status, etc.). Discrimination is a direct or indirect action, communication, or decision that results in the unfair or disadvantageous treatment of an individual on human rights grounds.

 

Human rights legislation mandates that all service providers, including doctors and hospitals, ensure that their services are free of discrimination and that human-rights-related needs are accommodated. “Services” in the context of health care provided by physicians can comprise an expansive scope of interactions and items, ranging from medical office facilities (e.g., accessibility of premises) to consultations, testing, diagnosis, and treatment. Top

 

Recent human rights cases

 

Set out below is a sample of decisions from two jurisdictions, Ontario and British Columbia, that process the highest number of human rights cases in the country. These cases illustrate the challenges of communicating properly during patient interviews and examinations. They expose a variety of ordinary misunderstandings that gave rise to conflictual patient–physician relations. Each of the cases spotlights the fact that patients are extremely concerned that their medical care not be influenced by the doctor’s preconceived or stereotypical notions regarding the patient’s race, sex, and disability, most especially when the health condition entails the use of pain medication. The decisions also confirm that human rights tribunals will not second-guess doctors’ clinical decisions regarding proper medical treatment. Top

 

Morrison-George v. Norman Krupa Medicine Professional Corporation

After 30 years of receiving care from her family doctor, the applicant in Morrison-George v. Norman Krupa Medicine Professional Corporation 4 alleged that her doctor discriminated against her because of her race/ancestry and disability, as well as subjecting her to reprisal by removing her from his patient roster because she filed a human rights complaint. The applicant, an Aboriginal woman, lived with excruciating pain because of osteoarthritis and a degenerative disc condition. She claimed that her doctor told her that he required Aboriginal patients to undergo urine testing as a condition for continuing prescribing pain medication. Top

 

The doctor denied that he targeted Aboriginal people and explained that, because of guidance from the CPSO, he had instituted a urinalysis program for all patients prescribed narcotics. Based on evidence indicating that the doctor had conducted urine screening for 107 patients, of which only 15 were Aboriginal, the tribunal determined that the applicant’s ancestry and disability were not factors in the doctor’s request that the applicant undergo urine testing.

 

The Human Rights Tribunal of Ontario expressly noted that it has “no jurisdiction to evaluate a physician’s clinical decisions as to whether they are medically appropriate.” It further found that the doctor’s decision to dismiss the applicant from his practice after she filed the human rights complaint against him did not amount to reprisal because the parties were, at that point, involved in an adversarial relationship, which would have placed the doctor in a conflict of interest had he continued to care for the applicant. Top

 

EC v. Dr. GL

The British Columbia case of EC v. Dr. GL5 also involved a dispute resulting in the physician’s decision to terminate services. The applicant, who suffers from an adjustment disorder (a psychological condition involving extreme difficulty coping with stress), alleged that the doctor, over the course of three appointments, did not spend sufficient time with him, did not conduct a proper physical examination, and implied that he was addicted to painkillers. As evidence, the applicant relied on a tape recording that he made secretly during one of the appointments. The recording disclosed that the patient and doctor had a disagreement about whether the patient was told the appointment time was limited.

 

The doctor denied the allegations and submitted that conflict arose because the applicant had difficulty narrowing the focus of his medical concerns to one or two problems and because the applicant argued and questioned the doctor’s advice. The doctor asserted that he exercised good faith medical and professional judgement in terminating the doctor–patient relationship because of the lack of trust and because the applicant tried to dictate the length of the appointment and type of services. Top

 

The British Columbia Human Rights Tribunal concluded that it would not proceed with the applicant’s complaint because there was no evidence indicating that his disability, the adjustment disorder, was in any way part of the reason that the doctor ceased services.

 

Valenzisi v. 2 Vita – Dr. Jeff Matheson

In Valenzisi v. 2 Vita – Dr. Jeff Matheson,6 the applicant attended the doctor’s pain management clinic for Botox injections to treat severe headaches and neck pain following a car accident. The applicant alleged that she was subjected to sexual harassment when the doctor, without warning, exposed her breast by pulling her top and bra strap forward during an examination of her neck and shoulders. The applicant believed that the doctor could have simply slipped her top and bra strap over her shoulder without exposing her breast. The applicant also alleged that she was forced to return for a second treatment because the doctor’s office refused to give her a prescription for the next injection and insisted that it be supplied by its pharmacy. Top

 

The doctor submitted that he had conducted a standard physical examination of the applicant’s pectoralis muscles, which necessitated some chest exposure, and denied any impropriety in his treatment of the applicant. The doctor indicated that the pharmacy used by his clinic delivers Botox on dry ice to maintain temperature, but not all pharmacies do that resulting in the waste of a costly product.

 

The Human Rights Tribunal of Ontario found that the applicant did not meet the legal burden of establishing that she was subjected to harassment because of sex. The Tribunal accepted the doctor’s explanation that it was necessary for him to pull the applicant’s clothing forward to examine the muscle area. It rejected the applicant’s contention that being required to revisit the clinic a second time constituted discrimination. Top

 

Burns v. Lakeland Medical Clinic and Clark

Finally, the applicant in Burns v. Lakeland Medical Clinic and Clark7 had sustained a serious injury as a result of a workplace mining accident. He attended a walk-in medical clinic to obtain pain medication, where he alleged that the doctor perceived him to be a drug addict and treated him rudely during the patient–doctor interview. The applicant also alleged that the doctor publicly humiliated him when she admonished him for using the disabled parking space even though he had a disabled parking decal posted on his vehicle.

The doctor denied that she had spoken to the applicant rudely and, instead, asserted that the applicant had become belligerent during the interview over questions about his medical history and had walked out. The doctor acknowledged that she had also become upset at this point and told the applicant, as he exited the examination room, that he should not be parking in the disabled parking spot. Top

 

Based on the evidence that the clinic had a posted notice in the reception area indicating that narcotics would not be prescribed, the British Columbia Human Rights Tribunal accepted the doctor’s version of the events. It concluded that the applicant had likely been anxious that his request for pain medication would be refused. The Tribunal found that there was no evidence to support the applicant’s claim that the doctor perceived him to be a drug addict. Although it was not disputed that the doctor had made a remark about the applicant’s use of the disabled parking spot, the Tribunal held that a single comment, albeit inappropriate, did not constitute discrimination given what had transpired.  Top

 

What can we learn from these cases?

 

Several important lessons are evident from these human rights decisions. First, despite recent debates over the collision between patients’ rights and physicians’ freedom of religion, most human rights cases pertain to patients’ grievances over inappropriate or inadequate treatment. Top

 

Second, the decisions confirm that when assessing evidence to determine whether particular circumstances amount to discrimination, tribunals will not evaluate a physician’s clinical decisions to see if they were medically correct. Rather, tribunals focus on whether the doctor’s alleged misconduct was connected to the patient’s human rights attributes, such as race, gender, disability, or other prohibited grounds.

 

Third, as evident from each of the summarized decisions, tribunals place a heavy onus on applicants to demonstrate that the alleged discrimination relates to the patient’s protected human rights characteristics. Although none of the applicants in the four cases established such a link, a clear pattern emerging from the tribunal decisions is that serious legal consequences can occur when there is a problematic quality to patient–physician communications. Top

 

The key lesson to be gleaned from these cases is that ordinary doctor–patient interactions, such as communicating about physical examinations or modifications to medication regimes, if poorly handled, can engender circumstances where patients perceive mistreatment on human rights grounds. In the discussed cases, because of a lack of clarity about what exactly was going to take place in the therapeutic exchange or about the reasons why the doctor was undertaking a specific course of action or consultation, each of the applicants misunderstood and personalized the doctors’ comments and conduct as related to their individual human rights characteristics. The cases reveal an absence of adequate description and notice of the anticipated steps that were to be taken during the patient–physician appointment, which in turn escalated to friction and irreparable misunderstanding. Top

 

It is inevitable that some patients will experience stress and trepidation when discussing their ailments. Doctors must strive to encourage patients to express needs openly, acknowledge patients’ feelings, and readily provide details about the “how and why” of their recommendations. The cases show that physicians should attempt to explain their actions and advice clearly and exercise greater sensitivity, especially in dealing with pain management issues, to ensure that patients do not misconceive the doctor’s motives.

 

To build healthy relationships with their patients, physicians must communicate empathically, clearly, and informatively to manage patient expectations and avoid tensions that can lead to greater conflict. Thus, physician leaders must ensure that the doctors they mentor and support are trained proactively in positive communication, conflict management and resolution, and human rights issues.  Top

 

References

1. Grant K. Should doctors have the right to refuse to treat a patient? Globe and Mail 2014;June 27. http://tinyurl.com/of4rnrh

2. Krishnan M. Doctor on duty ‘will not prescribe the birth control pill,’ reads sign at Calgary walk-in clinic. National Post 2014;June 26. http://tinyurl.com/pxcwyu5

3. Professional obligations and human rights (policy 2-15). Toronto: College of Physicians and Surgeons of Ontario; 2015. http://tinyurl.com/q4acj4u

4. Morrison-George v. Norman Krupa Medicine Professional Corporation, 2015 HRTO 729 (CanLII) http://tinyurl.com/qhv6w6j

5. EC v. Dr. GL, 2015 BCHRT 121 (CanLII) http://tinyurl.com/pewksku

6. Valenzisi v. 2 Vita – Dr. Jeff Matheson, 2015 HRTO 527 (CanLII) http://tinyurl.com/ozjmdjm

7. Burns v. Lakeland Medical Clinic and Clark (No. 2), 2008 BCHRT 367 (CanLII) http://tinyurl.com/nvwxd6w

 

Author

Ena Chadha, LLB, LLM, is a human rights lawyer and an adjunct lecturer with the Schulich School of Business where she teaches negotiations and power and politics. She has conducted research and published extensively in the areas of disability and equality rights. Ms. Chadha is a former Vice-chair of the Human Rights Tribunal of Ontario (2007–2015). Work for her master’s degree at Osgoode Hall Law School focused on disability and human rights law. She is an experienced mediator and facilitator in the areas of conflict resolution and human rights. Website: www.enachadha.com

 

Correspondence to: enachadha@bell.net

 

This article has been reviewed by a panel of physician leaders.

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