Disciplinary investigations against three Ontario doctors should never have started, their lawyer says, because they were breaching “mere guidelines” related to COVID-19 and not breaking a code of professional conduct.
The doctors—Crystal Luchkiw, Patrick Phillips, and Mark Trozzi—seemed to take a blow earlier this year when a tribunal rejected their motion to halt proceedings. But lawyer Michael Alexander has latched onto part of that tribunal’s decision to come back fighting.
The tribunal, which hears disciplinary cases within the College of Physicians and Surgeons of Ontario (CPSO), agreed with Alexander that CPSO’s requirements for doctors during the pandemic were “simply recommendations or guidelines; they did not have the force of law,” Alexander said at a new hearing on March 10.
The reason the tribunal had allowed the prosecution to continue was on other grounds, Alexander said, such as lack of cooperation with the college’s investigations. But if the investigation shouldn’t have happened in the first place, that alleged lack of cooperation should be irrelevant, he said. This is the matter he brought before the tribunal on March 10.
When these hearings first began in November, Alexander told The Epoch Times that the decision made by the tribunal could impact how a plethora of such cases are being handled nationwide. Doctors and nurses across Canada are facing discipline for being critical of public health recommendations during the pandemic.
In some cases, including Alexander’s clients, the discipline is for speaking their criticisms publicly or posting on social media.
Ontario’s college collaborated with colleges in other provinces to set the guidelines for doctors. Doctors were not to discourage vaccination in speaking with the public, they were not to issue medical exemptions for injections except in rare circumstances, and they were not to prescribe alternative treatments for COVID-19.
If the tribunal agrees with Alexander that the prosecution should not proceed, that decision could influence how other discipline cases play out as well.
The CPSO’s counsel, Elisabeth Widner, argued that Alexander did not bring forth any new evidence that would warrant the tribunal reversing its previous decision to continue with the prosecution.
“[Alexander is bringing forth] the very same issue that we already argued that was ruled on by a five-member panel and this tribunal not two months ago,” she said at the March 10 hearing. “That is the same argument that has already been disposed of by the tribunal.”
Alexander said, however, “It’s an attempt to draw out the implications of the tribunal’s ruling that the COVID-19 restrictions are merely recommendations.”
Defining Professional Standards
Widner and Alexander sparred on issues of how professional standards are legally defined, and thus what officially constitutes professional misconduct.
They also argued regarding the wording of the investigation orders and whether those orders remain valid despite the tribunal’s confirmation that the COVID-19 restrictions are “guidelines.”
For example, the investigation order for Luchkiw says that the investigators are to look at “whether Dr. Luchkiw in her family medicine practice and also in her conduct, including in relation to a completion of medical exemptions for COVID-19 vaccines, has engaged in professional misconduct or is incompetent.”
Alexander said if you remove the part about vaccines, “It is now a description of nothing.” He said it doesn’t meet the standard of a “brief description” of evidence required to start a disciplinary investigation.
Widner said a Divisional Court ruling last fall said it was fine for the college “to use guidance documents” such as the COVID restrictions in question, “to inform their conclusions about the patient safety test.” The patient safety test is codified in relation to professional conduct.
The college had asserted that not following the COVID-19 guidance may have endangered patients and thus brings the doctors under valid suspicion of misconduct and warranted an investigation.
“We have a problem, and I am bringing this problem to the attention of the Ontario Court of Appeal,” Alexander said. “And if necessary, I will take it to the Supreme Court of Canada.”