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

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

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 physician-patient 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.

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 thatOntario 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

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

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]
  • 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] Indeed, the United NationsConvention on the Rights of Persons with Disabilitiesspecifically recognizes the importance of access to health care for people with disabilities. Article 25 of the Conventionprovides 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. Impactof 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 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.

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 quasi-constitutional. 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 quasi-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’sDraft 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 policiesclearly 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 groundslisted 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 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 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]