The regulatory body for Ontario’s doctors says it has been asking for legislative changes since 2019 to address complaints, as the authority and province clash over the spread of disinformation about COVID-19 vaccines.
The accusation comes as pressure mounts on regulatory Colleges to properly investigate physicians sharing unproven medical information about vaccine side effects and issuing false medical exemptions, after the situation was brought to light in a Global News investigation.
Ontario Health Minister Christine Elliott last week labelled the reports “extremely concerning” and publicly called on the College of Physicians and Surgeons of Ontario (CPSO) to crack down on its members, announcing she would be sending them a letter “urging them to do everything that is possible to put an end to this behaviour.”
But the CPSO argues the onus is on the provincial government to adjust legislation to allow them to properly deal with complaints.
“Since 2019 — and every year since — the CPSO sought the support of government for greater discretion to investigate complaints, as well as process improvements to streamline the handling of complaints,” CPSO Registrar and CEO Nancy Whitmore wrote in a letter of reply to Elliott, obtained by Global News, on Friday.
“These requested improvements require government support in the form of legislative and/or regulatory changes.”
CPSO accuses province of inaction
Whitmore’s letter was sent the same day Elliott wrote to the CPSO asking to “better understand what steps the College is taking” to address the conduct of the doctors in question, as well as “what it is doing to ensure physicians understand their roles, responsibilities and accountabilities.”
“I would also like to know what actions the College will be taking to ensure that this type of behaviour ceases so that the public can continue to have confidence that physicians are providing them with the best possible care at this unprecedented time,” Elliott wrote.
The CPSO says actions to reprimand physicians in other provinces, such as in Alberta where the College was performing unannounced inspections of medical clinics where there have been complaints related to COVID-19, “are not possible under the current legislative and legal frameworks in place in Ontario.”
Whitmore then outlined several actions the government could take to “enable us to more effectively investigate and regulate members.” These included adjusting rules for the CPSO to investigate “frivolous and vexatious” complaints, which is currently a lengthy process that often requires “more Committee resources than a more earnest and credible complaint.”
The CPSO requested changes to this process in March 2019 and again in June 2021, Whitmore wrote.
Doctors' FAQ 'updated 93 times'
The CPSO had been communicating with health professionals consistently on misinformation, Whitmore said, including sending three direct messages herself and also “updating our COVID-19 Frequently Asked Questions posted on our website 93 times to ensure Ontario’s physicians had access to timely information throughout this pandemic.”
The CPSO is investigating more than 40 physicians for issues related to the COVID-19 vaccines and has issued three licence suspensions and four restrictions.
But Whitmore said the CPSO was “limited in its actions” when physicians refuse to cooperate with investigations, forcing them into “lengthy legal proceedings in order to engage in the basic enforcement of our oversight duties.”
Whitmore asked the government to amend legislation to address these challenges, too.
A Ministry of Health spokesperson did not answer specific questions but said the province “remains very concerned about the irresponsible behaviour of some Ontario physicians.”
“We are actively reviewing all options, including potential legislative and regulatory amendments, to protect the protect the public interest and ensure misleading information about the COVID-19 vaccine is not being spread by physicians,” the spokesperson said.
“At the same time, it is our expectation that the College continues to review its existing policies and communications with the profession to ensure that every reasonable measure is being taken to ensure that the expectations and repercussions of spreading misinformation are clearly understood.”
Court rules doctors must comply with investigations
This month, a hearing for four Ontario doctors — Rochagne Kilian, Mary O’Connor, Mark Trozzi and Patrick Phillips — took place at the Ontario Superior Court after legal proceedings were brought against them by the CPSO late last year.
Trozzi, O’Connor and Kilian were accused of failing to comply with investigations into allegations they issued false medical exemptions for the COVID-19 vaccine.
Phillips was facing two investigations from the CPSO: one prompted by comments the CPSO labelled “incompetent” on social media, including comparing Canada’s Covid restrictions to Nazi Germany, and the second after he posted a tranche of allegedly confidential CPSO documents from the investigation on Twitter, including the names of a medical officer of health and CPSO staff.
As a result, Phillips’ followers sent threatening and abusive messages to CPSO staff, calling them “Nazis” and saying they would face trial for Nuremberg code violations.
The CPSO sought a publication ban on Phillips re-posting the documents.
In his ruling, released on Wednesday evening, Justice Edward Morgan said Trozzi, Phillips and O’Connor must comply with investigations into their conduct. Kilian’s case was postponed as her lawyer, Rocco Galati, was hospitalized.
However, Morgan dismissed the majority of the CPSO’s application on Phillips’s social media use, stating that Phillips should not be held accountable for the actions of his followers as it was a “form of guilt by ideological association.”
As such, the court ordered a publication ban for the identity of sources and witnesses involved in the CPSO investigation, but not in relation to CPSO staff involved in the investigation.
'Nazi' now just a 'lowbrow insult'
Morgan said statements by Phillips’ followers that CPSO personnel would face Nuremberg-style trials for administering COVID vaccines were “ridiculous” and an “utterly absurd analogy,” and as such, were unrealistic.
He also objected to the use of the word “Nazis” but dismissed it as having “unfortunately passed into general discourse as a commonplace form of lowbrow insult.”
“Analogizing an Ontario regulator’s enforcement of vaccine and other health policies to history’s most genocidal regime is so outlandishly wrongheaded that it does not require me to even articulate a contrary argument,” Morgan said.
But Morgan found that the tweets did not “truly threaten” CPSO personnel.
Ruling a 'game-changer': lawyer
Phillips and his lawyer, Michael Alexander, did not attend the Jan. 7 hearing and did not provide a reason for their no-show. Morgan labelled the move an “abandonment” on Alexander’s part.
Alexander previously told Global News that Phillips and Trozzi have not issued “‘fake’ medical exemptions” and were outspoken about the COVID-19 vaccines because they believe they are “not safe and effective.”
Speaking after the decision was released, Alexander offered no comment on Trozzi’s case, but said Phillips’ was a success.
“Justice Morgan’s decision vindicates Dr. Phillips’ position that the College does not have the statutory authority to prevent him from publishing his investigative materials by ruling that College officials are ‘public’ officials who cannot avoid public scrutiny and accountability,” Alexander says.
“This decision is a game-changer for the College and the profession as a whole because it heralds a new era of transparency in College proceedings.”
Kilian’s husband, Abrie Kilian, has declined to comment on the court hearing. O’Connor’s lawyer, Michael Swinwood, did not respond to questions.
The CPSO welcomed the court’s decision, but said hearings such as these were becoming an “increasing problem” and requested assistance from Elliott’s office to address them.
Vaccine exemption system late
New rules for vaccine exemptions were due to be brought in on Jan. 10, with people with such exemptions needing verified certificates with a QR code. Doctor’s notes will no longer be accepted.
The system would help with investigations into doctors issuing false vaccine exemptions. Such cases would be referred to the CPSO to investigate.
However, it does not appear to have been implemented.
A CPSO spokesperson said he had not been notified by the Ministry of Health that it was in place.
The Ministry of Health refused to answer questions on vaccine exemptions and whether the QR-code system was implemented. The ministry, and Elliott, have so far refused to answer all questions from Global News in relation to these issues.