Submission of Arch Disability Law Centre
Total Page：16
File Type：pdf, Size：1020Kb
SUBMISSION OF ARCH DISABILITY LAW CENTRE
To the College of Physicians and Surgeons of Ontario
In response to
The College’s Consultation on its Policy: “Physicians and the Ontario Human Rights Code”
September 15, 2008
Kerri Joffe and Lana Kerzner 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 [email protected] [email protected] I. ABOUT THIS SUBMISSION
Thank you for the opportunity to comment on the draft policy “Physicians and the Ontario Human Rights Code” (“Policy”). ARCH supports the College of Physicians and Surgeons of Ontario (CPSO) in taking this important initiative to help physicians understand their legal obligations under Ontario’s Human Rights Code to provide medical services without discrimination. We believe that this initiative has the potential to improve access to physicians for many people with disabilities. This is vital not only for their health but also their ability to participate fully in society, including their ability to access essential government programs.
However, ARCH has concerns about the Policy in its current form, which we believe must be addressed for the Policy to fulfill its potential. Since ARCH’s mandate is to defend and advance the equality rights of people with disabilities, our submission will focus on those aspects of the Policy that specifically impact people with disabilities.
ARCH’s main concerns with the Policy relate to:
Legal adequacy and completeness; Applicability and relevance to people with disabilities; and The need for mechanisms to ensure that the Policy has a direct impact on the experiences of patients and others to whom it affects
ARCH urges the College of Physicians and Surgeons of Ontario (CPSO) to ensure that the Policy address the concerns set out below 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.1 People with disabilities also
1 See Appendix A for more information on this point. Appendix A sets out ARCH’s submissions regarding the context in which people with disabilities interact with physicians, including the experiences of people with disabilities when interacting with physicians that have been reported to ARCH and research and literature that supports these experiences.
2 experience multiple disability-related barriers when accessing medical services. This Policy has 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 Policy be clarified so as not to inadvertently encourage such discrimination and that the Policy explain physicians’ human rights obligations in a manner that is complete. Throughout this submission, we make recommendations for achieving both of these requirements. In section III of our submission we have included a summary of our recommendations. Section IV contains a note on the context relevant to this submission, and section V provides more detailed comments on the Policy and elaborates on 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. Where we report the examples, we do so in a generic form to protect anonymity.
II. 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.
3 III. SUMMARY OF ARCH’S KEY RECOMMENDATIONS
Recommendation 1: The Policy must clearly and completely explain the nature of physicians’ human rights obligations in a way which is consistent with the language in Ontario’s Human Rights Code and relevant jurisprudence. This must include the obligation not to discriminate and the duty to accommodate to the point of undue hardship.
Recommendation 2: The Policy must clearly distinguish between physicians’ human rights obligations and their decisions in providing medical services that relate to clinical competency.
Recommendation 3: The Policy must include a legal definition of disability or refer physicians to the definition of disability contained in Ontario’s Human Rights Code.
Recommendation 4: The Policy must be reorganized in order to more clearly set out physicians’ human rights obligations.
Recommendation 5: The Policy should alert physicians to the presence of other legislation which establishes legal obligations in relation to the provision of medical services in a manner that is accessible.
Recommendation 6: The Policy must be accompanied by educational opportunities for physicians, including human rights training and disability sensitivity training.
4 IV. CONTEXT RELEVANT TO THIS SUBMISSION: Physicians’ Services and the Experiences of People with Disabilities
In a previous submission to the CPSO on the draft policies on establishing and ending the physician-patient relationship, ARCH made extensive submissions on 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 have for some people with disabilities. Based on a review of people with disabilities’ experiences accessing medical services and the relevant literature, two themes emerged. 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.
For people with disabilities, several consequences arise as a result of these themes. First, lack of access to physicians may negatively impact on people’s health. Second, many people with disabilities depend on government social programs and benefits for their income, and many of these programs require medical documentation to qualify for and receive benefits. Lack of access to physicians, therefore, may jeopardize people with disabilities’ access to income supports and 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.
An understanding of the context in which people with disabilities interact with physicians is critical to this submission, and we refer the CPSO to our previous submissions for more details. For your ease of reference, we have included our previous submissions on this point in Appendix A.
5 V. COMMENTS ON POLICY AND ELABORATION OF RECOMMENDATIONS
Recommendation 1: The Policy must clearly and completely explain the nature of physicians’ human rights obligations in a way which is consistent with the language in Ontario’s Human Rights Code.
ARCH submits that in order to achieve its potential of providing practical guidance to physicians on how to meet their human rights obligations and improving access to medical services for people with disabilities, the Policy must clearly and completely explain physicians’ human rights obligations. In this respect, we make recommendations on the following three issues: 1. The need to use the terminology “undue hardship”, not “reasonable accommodation”, when describing physicians’ duty to accommodate 2. The need for further elaboration of the duty to accommodate in the specific context of the provision of medical services 3. The need to reorganize the Policy to clarify that the duty to accommodate is inexorably linked to the right to be free from discrimination
1. The Need to Use the Terminology “Undue Hardship” when Describing Physicians’ Duty to Accommodate
ARCH is concerned that the Policy describes physicians’ human rights obligations to people with disabilities using the language of “reasonable accommodation”. Even more concerning is that the section in the Policy on “Reasonable Accommodation of Disability” does not mention the concept of undue hardship, which is inexorably linked to the duty to accommodate. Indeed, the Policy omits the phrase “undue hardship” altogether. It is our submission that the language of reasonable accommodation is not appropriate for a policy meant to guide physicians’ conduct. Instead, the Policy should describe physicians’ obligations as a “duty to accommodate to the point of undue hardship”.
6 Accommodation to the point of undue hardship is more appropriate to use in this policy because it is more descriptive and prescriptive than reasonable accommodation. The Policy must explain the scope of physicians’ duty to accommodate if it is to fulfill the goal of educating physicians about their human rights obligations, and thereby improve people with disabilities’ access to medical services. Undue hardship serves to describe and define the scope of the duty to accommodate by setting out the extent to which accommodation is required.
The jurisprudence on undue hardship is useful in providing guidance on what actions are required in order to satisfy the duty to accommodate. For example, 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.2 Ontario’s Human Rights Code (“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, if any, and health and safety requirements, if any.3
While the term “reasonable accommodation” is used in some human rights jurisprudence, in our view this language does not adequately reflect the legal standard. The legal standard which is set out in the Code, applied by the Supreme Court of Canada and the Human Rights Tribunal of Ontario, and used by the Ontario Human Rights Commission in its policy documents is accommodation to the point of undue hardship.
The source of physicians’ human rights obligations is s. 1 of the Code, which confers a right on all Ontarians to be free from discrimination in the provision of services. Section 17 of the Code sets out the scope of that right for a person with a disability and uses the terms “accommodation” and “undue hardship”. A service provider will have violated the 2 In British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868 [Grismer] the Supreme Court stated, at para. 21, that “(e)xclusion is only justifiable where the employer or service provider has made every possible accommodation short of undue hardship.”
3 Human Rights Code, R.S.O. 1990, c. H.19, ss. 11(2) and 17(2).
7 Code if s/he has not accommodated a person with a disability to the point of undue hardship.
Accommodation to the point of undue hardship is the standard that has been articulated by the Supreme Court of Canada. In Meiorin the Supreme Court outlined a framework for analyzing whether the duty to accommodate has been met, and established that accommodation must be provided to the point of undue hardship.4 This standard has been applied in several Supreme Court cases since Meiorin. It was recently reaffirmed by the Court in Council of Canadians with Disabilities v. Via Rail Canada Inc., where the Court reiterated that a cornerstone of human rights jurisprudence is the duty to accommodate to the point of undue hardship in order to ensure that disadvantaged groups benefit equally from services offered to the public.5
Accommodation to the point of undue hardship is the standard applied by the Human Rights Tribunal of Ontario when it decides whether a service provider or employer has discriminated against a person with a disability.6 Recently, this standard was affirmed by the Ontario Divisional Court in Adga Group Consultants v. Lane, where the Court found that the Human Rights Tribunal had correctly stated that the law required the employer to accommodate the employee to the point of undue hardship.7
It is also important to note that accommodation to the point of undue hardship is the terminology used by the Ontario Human Rights Commission in its policy documents, including Policy and Guidelines on Disability and the Duty to Accommodate [“Guidelines
4 In Meiorin the Supreme Court stated that employers have procedural and substantive duties to accommodate employees with disabilities up to the point of undue hardship. The onus is on the employer to establish that it has met these duties. 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.) [Meiorin] at para. 62; Grismer, supra note 1 at paras. 22, 32.
5 [2007] 1 S.C.R. 650 at para. 122.
6 See for example, Brown v. Trebas Institute Ontario Inc., 2008 HRTO 10 (CanLII). In that case the Human Rights Tribunal described the obligation owed by a post-secondary private career college in the provision of educational services as a duty to accommodate to the point of undue hardship.
7 Adga Group Consultants Inc. v. Lane, 2008 CanLII 39605 (Div. Ct.) at paras. 112-128.
8 on Disability”].8 These guidelines contain the Commission’s interpretation of provisions of the Code relating to disability and the duty to accommodate. They are meant to set standards and provide guidance for how individuals, employers, service providers, policy makers and others should act to ensure compliance with the Code.9 The guidelines are not law, and therefore are not binding on the Human Rights Tribunal, courts or other adjudicative bodies. However they are often given deference by adjudicators and judges, applied by tribunals and courts to the facts of cases, and quoted in decisions.10
As is evident, accommodation to the point of undue hardship is the legal standard set out in the Code and applied by courts and the Human Rights Tribunal of Ontario. It is also the legal standard used in the Ontario Human Rights Commission’s policy documents. This is the standard that should be reflected in the CPSO’s Policy.
In our view, another important reason for using the term undue hardship instead of reasonable accommodation, is that the term reasonable accommodation as it is used in the Policy is misleading and could inadvertently result in violations of the Code. The Policy states that physicians have a duty to take reasonable steps to accommodate the
8 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
9 Guidelines on Disability, ibid. at page 2, states that it contains the Ontario Human Rights Commission’s policy position on disability, accommodation, and undue hardship, as well as practical guidance on compliance with the Code. The Ontario Human Rights Commission’s policy document, Guidelines on Accessible Education, states, at page 2, that it contains, “the Commission’s interpretation of provisions of the Ontario Human Rights Code relating to discrimination against students because of disability. …Commission policies and guidelines set standards for how individuals, employers, service providers and policy makers should act to ensure compliance with the Code. They are important because they represent the Commission’s interpretation of the Code at the time of publication. While they are not binding on the human rights tribunal or on courts, they are often given great deference, applied to the facts of the case before the court or tribunal, and quoted in the decisions of these bodies.” Ontario Human Rights Commission, Guidelines on Accessible Education, (Toronto: OHRC, 2004), available online: OHRC
10 In Guidelines on Accessible Education, ibid., the Commission cites Quesnel v. London Educational Health Centre (1995), 28 C.H.R.R. D/474 (Ont. Bd. Inq.) on this point. At page 2, the Commission states that “the board of inquiry applied the United States Supreme Court’s decision in Griggs v. Duke Power Co., 401 U.S. 424 (4th Cir. 1971) to conclude that Commission policy statements should be given “great deference” if they are consistent with Code values and formed in a way that is consistent with the legislative history of the Code itself. This latter requirement was interpreted to mean that they were formed through a process of public consultation.”
9 needs an individual has identified. It is not clear from the wording of the Policy that reasonable accommodation is being used in its legal meaning, as opposed to its everyday meaning. Therefore, it is open to anyone reading the Policy to interpret it as requiring physicians to do what they think is reasonable to accommodate a person with a disability. As explained above, this is not what the Code requires. In contrast, the term undue hardship is clearly not a colloquial term, and therefore is much less likely to be interpreted in a way that conflicts with the Code. Undue hardship is a term that requires explanation. If the explanation provided is clear, comprehensive and consistent with the Code, the use of this term in the Policy is much less likely to result in inadvertent discrimination.
For all these reasons, ARCH strongly recommends that throughout the Policy the language “reasonable accommodation” be replaced with the language of “duty to accommodate to the point of undue hardship”.
2. The Need for Further Elaboration of the Duty to Accommodate in the Context of Provision of Medical Services
In ARCH’s view, the Policy must articulate and explain the concept of accommodation to the point of undue hardship in a way that is specifically relevant to the provision of medical services. This is necessary if the policy is to fulfill its potential of providing practical guidance to physicians on fulfilling their human rights obligations and improving access to medical services for people with disabilities.
ARCH recognizes that there is little jurisprudence or policy that specifically considers what physicians’ obligations are to accommodate their patients and potential patients and the extent to which physicians must go to provide this accommodation. Undoubtedly, this is an area of the law that will continue to evolve. Therefore, ARCH recommends that the CPSO regularly update its Policy to reflect developing jurisprudence, policy and critical thinking on the meaning of the duty to accommodate to the point of undue hardship in the specific context of the provision of medical services.
10 Ensuring that the Policy is up to date is also important in order to ensure that the CPSO provides guidance to physicians regarding the most challenging situations, such as those in which it is unclear whether physicians’ decisions are related to clinical competency or based on a patient’s disability.
Despite the shortage of jurisprudence on the duty to accommodate in the specific context of medical services, there is a wealth of jurisprudence, policy and critical thinking on the duty to accommodate in the provision of services generally. ARCH recommends that the CPSO draw on these resources to more fully articulate and explain physicians’ duty to accommodate in the Policy. Specifically, ARCH recommends that the following be included in the Policy:
a. Physicians’ Duties in the Accommodation Process ARCH supports the Ontario Human Rights Commission’s recommendation that the Policy include a description of some of the specific duties physicians have in the accommodation process, and that this description be based on the duties that are outlined in the Commission’s Guidelines on Disability. As the Commission explains in its submission to the CPSO, the Policy should state that physicians should accept requests for accommodation in good faith unless there are legitimate reasons for acting otherwise; obtain expert opinion or advice where needed; take an active role in ensuring that alternative approaches and possible accommodation solutions are investigated; maintain the patient or potential patient’s confidentiality; limit requests for information to those reasonably related to the nature of the limitation so as to be able to respond to the accommodation request; and grant accommodation requests in a timely manner even when the request for accommodation is not made in any specific formal language.11
b. Examples of Accommodation In ARCH’s view, including examples of the manner in which physicians can accommodate their patients and potential patients with disabilities is an effective way of
11 The Ontario Human Rights Commission’s submission on the Policy refers the CPSO to section 3.4 of the Guidelines on Disability for more information on this point.
11 providing practical guidance to physicians. The Policy should state that 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.12 Examples of this may include: 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; and 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. Examples of 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; training medical and non-medical staff to interact with patients with disabilities in a manner that is respectful and that best accommodates the person;13 and ensuring that there is a process in place for patients and potential patients to request accommodations in a confidential manner.
c. Factors Relevant to Undue Hardship In our previous submission to the CPSO, ARCH recommended that the CPSO include a more thorough discussion of the factors that are relevant in an assessment of whether the physician has fulfilled the duty to accommodate to the point of undue hardship.14 We
12 Guidelines on Disability, supra note 7 at 12-13.
13 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.
14 ARCH’s submission to the CPSO on the draft policies related to establishing and ending the physician- patient relationship is available online at www.archdisabilitylaw.ca. This recommendation was made at pages 10-12.
12 make the same recommendation now. The Commission has made a similar recommendation, noting that this information is important to help physicians understand the high standard that has been established by the Supreme Court relating to the duty to accommodate.15
The Policy should state that 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, if any, and health and safety requirements, if any. 16 The Policy should explain that 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.17 Costs cannot be speculative; there must be objective evidence of how much the accommodation will cost.18 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, the Policy should state that where these requirements create barriers for people with disabilities, the accommodation provider should assess whether the requirements can be waived or modified. 19 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 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.20
15 In relation to the high standard related to the duty to accommodate, the Commission’s submission specifically discusses costs and refers the CPSO to section 4 of Guidelines on Disability for more detailed information.
16 Code, supra note 2 at s.17(2).
17 Guidelines on Disability, supra note 7 at 30.
18 Ibid. at 31.
19 Ibid. at 34.
20 DeJager v. Department of National Defence (1986), 7 C.H.R.R. D/3508 (C.H.R.T.) at 3517.
13 d. Duty to Accommodate when No Request for Accommodation has been Made Currently, the Policy, on page 7, states that physicians can only accommodate those needs of which they are aware, therefore the individual has a duty to inform the physician of his/her needs. While this may be accurate in many situations, it is important that physicians are aware that in some situations they may have an obligation to accommodate someone who has not disclosed his/her disability or made a request for accommodation.
Due to the nature of the disability, some people may not be able to disclose their disability or request accommodation. Some people may choose not to disclose their disability or request accommodation due to the fear of social stigma and prejudice that such disclosure may attract. For example, people with mental health disabilities are often subject to stigma, negative stereotyping and adverse treatment, and therefore may be reluctant to ask for accommodation. Despite such non-disclosure, knowledge of the need for accommodation may be imputed to the physician. For example, a patient’s behaviour, emotional state or prior medical history may suggest that s/he requires accommodation. In situations where a person has not requested accommodation, but knowledge of a disability or need for accommodation can be imputed, the duty to accommodate may require a physician to make inquiries of the person regarding their accommodation needs.21
e. Duty to Accommodate may Include Training Another issue about which the Policy can provide guidance for physicians is that physicians may need to pursue additional training as part of their duty to accommodate
21 Gardiner v. British Columbia (Attorney General) (2003), 47 C.H.R.R. D/277 (B.C.H.R.T.). At para. 163 of that decision the B.C. Human Rights Tribunal stated that the obligation is normally on the employee to communicate the nature of the disability to the employer and request accommodation, however, “(a) respondent's failure to make inquiries regarding the health of an employee before taking steps that adversely affect that employee's employment situation, where the respondent has reason to suspect that a medical condition may be impacting in the employee's ability to work, has been found to be discriminatory in certain instances. [emphasis added]”
14 patients or potential patients. The Human Rights Tribunal of Ontario considered this issue in the very recent decision Finan v. Cosmetic Surgicentre (Toronto).22 In Finan the question of whether the doctor was required to undertake training was considered part of the undue hardship analysis. In our view, it is significant that the case recognizes that training may form part of physicians’ duty to accommodate. The extent to which training will be required will depend on the specific facts of the case and whether the training in question constitutes undue hardship. In Finan, the Tribunal found that the training was not required, as it would have been significant and would have made substantial changes to the physician’s practice or nature of his practice.23 However, the Tribunal did not determine whether the result would be the same if the training would require less than substantial changes to the physician’s practice.24
3. The Need to Reorganize the Policy to Clarify that the Duty to Accommodate is Inexorably Linked to the Right to be Free from Discrimination
ARCH is concerned that the way in which the Policy is currently organized implies that accommodation of disability is a requirement that is separate from the obligation not to discriminate. For example, on page 2, the Policy states that it is divided into two sections, the first of which addresses physicians’ obligations to provide medical services without discrimination, and the second of which addresses physicians’ obligations to accommodate the disabilities of patients or potential patients. The separation of the obligation not to discriminate and the duty to accommodate into two distinct sections, and the fact that the section on accommodation does not explain the relationship between accommodation and the obligation not to discriminate incorrectly implies that these two obligations are separate and distinct.
22 2008 HRTO 47 (CanLII).
23 Ibid., at para. 49.
24 Ibid., at para. 48.
15 In law, the duty to accommodate is inexorably linked to the right to be free from discrimination, since without accommodation people with disabilities would not have equal access to services, employment and participation in society. The Supreme Court of Canada has described accommodation as “…what is required in the circumstances to avoid discrimination.”25 In Policy and Guidelines on Disability and the Duty to Accommodate, the Ontario Human Rights Commission has stated that, “(a)ccommodation is a fundamental and integral part of the right to equal treatment.”26 The law recognizes the relationship of accommodation to equality and therefore imposes a duty to accommodate onto service providers, employers and others.
To more accurately describe physicians’ human rights obligations, ARCH submits that the Policy must clarify the relationship between accommodation and non-discrimination and must not imply that these concepts are separate and distinct. ARCH recommends that the section of the Policy that describes physicians’ obligations not to discriminate include an explanation of the relationship between that obligation and the duty to accommodate. The Policy must explain that physicians’ obligation not to discriminate includes a duty to accommodate disability and other Code grounds.27
Recommendation 2: The Policy must clearly distinguish between physicians’ human rights obligations and their decisions in providing medical services that relate to clinical competency.
ARCH is concerned that the way in which parts of the Policy are currently worded conflates physicians’ fundamental legal obligation not to discriminate with the concept of clinical competency. This includes the first paragraph on page 3 and the first two paragraphs under the heading “Guidelines” (on page 3), which state that the duty not to
25 Grismer, supra note 1 at para. 22.
26 Guidelines on Disability, supra note 7 at 6.
27 See also Recommendation 5 in this submission, which recommends that in the interests of clarity, the Policy be reorganized. If the CPSO accepts this recommendation, an explanation of the relationship between non-discrimination and the duty to accommodate could be included in section 1 of the Policy.
16 discriminate does not prevent physicians from making decisions in relation to their own clinical competence. In ARCH’s view, this is problematic since it can lead to confusion about the nature and extent of physicians’ human rights obligations. These paragraphs imply that physicians are not required to fulfill their human rights obligations when they make decisions about whether they have the clinical competence required to treat a patient.
Such an implication is concerning to us, in light of the fact that people with disabilities are sometimes 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. ARCH has heard from many people with disabilities about situations which demonstrate that 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. 28
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. 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 Policy must distinguish between physicians’ human rights obligations and their decisions regarding clinical competency so as not to promote this kind of discrimination. We recommend that the Policy state that physicians have a fundamental legal obligation not to discriminate when they are providing medical services to the public, and that physicians must ensure that they exercise their 28 ARCH has heard about these experiences through our Summary Advice and Referral service, and these experiences are supported by research and literature. See Appendix A to this submission for more details on this point.
17 professional judgment in a manner that is consistent with their obligation not to discriminate.
Recommendation 3: The Policy must include a legal definition of disability or refer physicians to the definition of disability contained in Ontario’s Human Rights Code.
ARCH recommends that the Policy include a legal definition of disability or refer physicians to the definition of disability contained in the Code.29 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, and may include many more situations than physicians would expect.
Physicians must also be aware that the legal definition of disability contained in the Code includes perceived disability. In Mercier the Supreme Court recognized that discrimination on the basis of disability can occur if a person is treated differently based on a perception, myth or stereotype that the person has a disability. 30 The Court stated that the “objective of prohibiting discrimination requires that "handicap" be interpreted so as to recognize its subjective component. A "handicap", therefore, includes ailments which do not in fact give rise to any limitation or functional disability.” 31 In Guidelines on
29 Section 10(1) of the Code, supra note 1, 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.
30 Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montreal (City); Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Boisbriand (City), [2000] 1 S.C.R. 665 [Mercier] at paras. 38-41.
31 Ibid., at para. 41.
18 Disability, the Ontario Human Rights Commission has stated that “(d)isability should be interpreted in broad terms. It includes both present and past conditions, as well as a subjective component, namely one based on perception of disability. … Even minor illnesses or infirmities can be “disabilities”, if a person can show that she was treated unfairly because of the perception of a disability.”32
Recommendation 4: The Policy must be reorganized in order to more clearly set out physicians’ human rights obligations.
In ARCH’s view, the manner in which the Policy is currently organized is misleading and confusing. The first section of the Policy, entitled “Providing Medical Services without Discrimination” includes a discussion regarding the extent to which physicians must go to accommodate patients’ moral and religious beliefs that conflict with the physician’s own beliefs. However, this same section of the Policy does not include a discussion of the duty to accommodate patients’ disabilities. This is misleading since it implies that accommodation of moral or religious beliefs is part of the obligation to provide medical services without discrimination, but accommodation of disability is not. In addition, the guidelines provided by the CPSO on how physicians should comply with the requirements of the Code include a discussion relating to moral and religious beliefs but no other Code grounds. In our view, this is confusing and may lead to physicians interpreting the Policy to mean that the guidelines apply only to the accommodation of moral and religious beliefs.
In order to more clearly set out physicians’ human rights obligations, ARCH recommends that the Policy be reorganized as follows:
Section 1 should explain that physicians’ have an obligation not to discriminate in the context of medical services. This should include an explanation of the meaning of discrimination as well as all the grounds enumerated in the Code.
32 Guidelines on Disability, supra note 7 at 8.
19 Section 2 should explain why the CPSO has chosen to specifically highlight the grounds of religion and disability. The Policy should emphasize that discrimination in relation to any of the grounds enumerated in Ontario’s Human Rights Code equally violates the Code. It should also alert physicians that they may have to accommodate more than one Code ground at a time.
Section 3 should focus on physicians’ human rights obligations and moral or religious beliefs. This section could discuss issues that arise relating to the accommodation of religious beliefs and provide guidance to physicians on how to conduct themselves in these situations.
Section 4 should focus on physicians’ human rights obligations and disability. This section could discuss issues that arise relating to the accommodation of disability and provide guidance to physicians on how to conduct themselves in these situations.
Recommendation 5: The Policy should alert physicians to the presence of other legislation which establishes legal obligations in relation to the provision of medical services in a manner that is accessible.
ARCH recommends that the Policy alert physicians to the presence of other legislation that places legal obligations on them that may be relevant to the provision of medical services in a manner that is accessible. One example is the Accessibility for Ontarians with Disabilities Act (AODA).33
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 33 S.O. 2005, c. 11.
20 accessibility standards, which will eventually become regulations. On January 1, 2008 the first accessibility standard under the AODA, the Customer Service Standard, came into force.34 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/.
Recommendation 6: The Policy must be accompanied by educational opportunities for physicians, including human rights training and disability sensitivity training.
The success of the Policy in eliminating discrimination experienced by patients will not only depend on the contents of the Policy but also on an awareness and understanding of its contents by both physicians and the public. Therefore, ARCH urges the CPSO to, with the introduction of this Policy, create educational opportunities in relation to the Policy. This could include continuing medical education programs for physicians, disability sensitivity training, a plain language guide for the public and posting information on the CPSO website. In addition, the CPSO should advise physicians that they must take steps to educate themselves about their human rights obligations, and
34 O. Reg. 429/07.
21 that they must do so periodically in order to remain up to date on developments in this area of law.
V. 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 that they 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.
APPENDIX A Excerpt from ARCH’s Submission to the CPSO on the Draft Policies “Establishing a Physician-Patient Relationship” and “Ending the Physician-Patient Relationship”, May 12, 200835
A. CONTEXT RELEVANT TO THIS SUBMISSION
35 This submission can be accessed online in its entirety at: www.archdisabilitylaw.ca
22 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 physician-patient 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
23 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;
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
24 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.36
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.37
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
36 Meredith B. Marks & Robert Teasell, “More than ramps: accessible health care for people with disabilities” (2006) 175 (4) CMAJ 329 at 329, online: CMAJ
37 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 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
25 disabilities, but only 3.9% of people without disabilities, reported that they were unable to obtain the health care they needed.38
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.39
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.40 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.
38 Canadian Council on Social Development, Disability Information Sheet, No. 9 (Ottawa: CCSD, 2003) at 2-3, online: CCSD
39 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)
40 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.”
26 Article 25 of the Convention provides that states parties shall prevent discriminatory denial of health care or health services on the basis of disability. 41
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.42 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,43 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,
41 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.
42 McColl, supra note 40.
43 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.
27 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.44 Other programs, such as Canada Pension Plan Disability benefits and Employment Insurance sickness benefits, also require medical documentation.45 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.46 Similarly, to qualify for an Accessible Parking Permit, a person must be certified by a health care practitioner as having a disability.47
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.
44 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. 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.
45 Canada Pension Plan Regulations, C.R.C., c. 385, ss. 68-69; Employment Insurance Regulations, S.O.R./96-332, s. 40(1).
46 See Ministry of Health and Long-Term Care, “Assistive Devices Program,” online: Ministry of Health and Long-Term Care,
47 See Ministry of Transportation, “Getting or Replacing an Accessible Parking Permit,” online: Ministry of Transportation
28 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.
29