The CMA legal challenge: Unintended consequences?

On Bluesky, I congratulated the Canadian Medical Association (CMA) for standing up for gender-affirming care in Alberta by filing a constitutional challenge to Alberta's Bill 26 that prohibits top surgeries, puberty blockers and hormone therapy for those under 18 with gender dysphoria. In response, Dr. Amir Attaran, a professor in the Faculty of Law at the University of Ottawa, stated he supported the rights of patients requiring gender-affirming care. However, the CMA using section 2(a) of the Charter of Rights and Freedoms, as a freedom of conscience issue, is very problematic for medical care in Canada going forward. Since Dr. Attaran has expertise in health and law, as well as being an active litigator, and is well-positioned to understand this issue, I sent him an email asking him to clarify his objections: the crux of his concern is that every lawsuit won sets a precedent in Canada’s legal system and this lawsuit would set an unsafe precedent for safe patient care. Dr. Attaran said, "Let me state first what is not my concern with this lawsuit: it is not my concern that CMA is substantively wrong—I think their approach is wrong. It's right that physicians should be able to care for patients, including children, seeking gender reassignment or some other sort of gender-affirming care, that's in the standard of care and it's correct that physicians should be able to provide it. That's not the fight here. The fight that I have, as this works through the courts, is that the medical profession, embodied by the CMA, is doing this in a way that will inadvertently sets up a path, in our precedent system of law, that could be used for the opposite purposes. "Gender dysphoria is a medical problem of the patient. It's not a problem, except peripherally, with the conscience of the doctor. By making this about the conscience of the physician, the CMA does two things. One, it's not practicing patient-centred medicine, this is a doctor-centred lawsuit. Second, it is giving credence to a legal theory that has pretty much been dominated by those on the outside that are trying to destroy the standard of care. "So ironically the CMA reaches for the freedom of conscience in the way that others did when they were trying to destroy the standard of medical care."Dr. Attaran gives a few examples to clarify this, one of which is, "Suppose you establish a beachhead like the religious doctors against MAID tried to do, with the emphasis not on the patient's autonomy to chose MAID or avoidance of harm to the patient, but focusing on the doctors and their conscience. This is saying doctors are more important than the patients. It's a knife that undoes a considerable amount of medical ethics—instead of the idea of patient autonomy and care, its equipping the doctor with rights that can be used for opposite purposes." He clarifies that Section 2(a) protects freedom of conscience and religion, hence the religious groups opposing MAID are covered by protected religious freedom as well. In this case, the court sided on the rights of patients and their right to care, "A group of five doctors and three professional organizations had launched a legal challenge against a policy issued by the province's medical regulator, arguing it infringed on their right to freedom of religion and conscience under the Charter of Rights and Freedoms . . .. An Ontario court says doctors who have a moral or religious objection to treatments such as assisted dying, contraception or abortions have to refer patients to another doctor who can provide the service.” You can read more about that court decision here.I asked about abortion and if section 7 of the Charter of Rights and Freedoms would be more appropriate. ln the 1988, Supreme Court case R. v. Morgentaler, section 7 of the Charter of Rights and Freedoms was used and the court ruled that the law on abortion in the Criminal Code violated a woman’s right to “life, liberty and security of the person.” This made abortion legal in Canada as a medical procedure, protecting women's right to healthcare. Could the rights of patients with gender dysphoria be better protected that way?"Exactly," Dr. Attaran said.Our profession should give serious consideration to Dr. Attaran's concerns. Maybe section 7 and not 2 a) should be used in this lawsuit, since the former protects patient care and the latter protects doctors, including doctors uninterested in providing many types of patient care. As physicians we have a duty of care to patients based on evidence and not on our conscience or religion. If the CMA wins this lawsuit, I see how it could set a dangerous legal precedent for medical care in Canada by allowing doctors to choose the medical care they provide patients. It should be pointed out that, "advocacy groups and families have protested and taken legal action against the province, arguing that Bill 26 violates gender-diverse young people’s section 7 right to security of the person, their section 12 right to be free from cruel and unusual treatment and their section 15 right to equality,” notes a CTV News article.These appear to be more appropriate protections for Canadian patients than the protections the CMA is seeking for doctors. Dr. Mary Fernando is a physician in Ottawa.

The CMA legal challenge: Unintended consequences?

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