Lawyer scrutinizes the stranglehold on medicine in Ontario

Michael Alexander is representing three Ontario doctors who face various allegations of professional misconduct for not abiding by COVID-related guidance put out by their regulatory body, the College of Physicians and Surgeons of Ontario (CPSO). 

Alexander recently filed a motion with the disciplinary tribunal stating that any further allegations and disciplinary action taken against the physicians have no merit because they are based on guidelines and recommendations, not legislated laws or regulations. 

For the last 18 months, the CPSO has put three restrictions in place on practicing physicians. 

“Doctors cannot say anything contrary to the public health recommendations and orders regarding COVID-19. They cannot write medical exemptions for COVID-19 injections except in very, very rare circumstances so it’s virtually a ban. They can’t prescribe alternative medication for the prevention and treatment of COVID-19,” says Alexander. 

Physicians who do not conform to those restrictions have been persecuted by the CPSO through investigations and disciplinary action. 

Yet Alexander claims that this is without clear justification of professional misconduct, as per the CPSO’s own regulations: 

You can’t have a finding of professional misconduct based on not following recommendations, [physicians] have to be in conflict with one of the items listed as professional misconduct in a regulation.

Alexander argued that none of the evidence presented against these physicians meets the threshold for well-established, reasonable and probable grounds – empirical evidence and facts, not suspicions and hunches: 

Even if these restrictions are law, they violate the Charter of Rights and Freedoms. But even on jurisdictional grounds, [the CPSO has] no right to impose these as if they are actually laws and regulations.

In the factum response to Alexander’s motion, counsel for the CPSO Elisabeth Widner, acknowledged that the restrictions are just that: recommendations. 

Alexander said that they did that to avoid the Charter arguments. “If they admit that these things aren’t laws, then you can’t apply the Charter to them.”  

The CPSO also tried to group COVID-related restrictions in with college policies which are “also not laws or regulations,” according to Alexander. “It was quite a sneaky strategy,” he continued.

In referring to the persecution of Dr. Trozzi, one of the three Doctors facing disciplinary action, Alexander reminded the audience that he was also a university professor. “His job is to raise questions about COVID-19, but not in Dr. Whitmore’s Ontario.” 

Similar situations arouse with Dr. Phillips who reported COVID-19 vaccine adverse events through his Emergency Department:

He has a duty to do that as a physician but not in Dr. Whitmore’s Ontario. He’s being accused of fraud now for doing that.

Dr. Nancy Whitmore is counsel elected CEO and registrar of the CPSO who, according to Alexander, has “had a very profound and negative influence on the practice of medicine in this province.” 

Despite legislation called ‘The Regulated Health Professions Act,’ Alexander says that there have been problems with the CPSO acting outside of their jurisdiction for decades. 

A report by Justice Michael Code titled ‘Medicine in Ontario needs “Glasnost”' highlighted the issues that still persist today. 

One reason that happens is that the lawyers at the Canadian Medical Protective Association (CMPA) do not raise jurisdictional and charter questions with the CPSO.

“These problems have never been addressed,” said Alexander who is seeking to set precedence to “fundamentally change how Doctors are regulated and how patients receive medical care.” 

Alexander hopes to have a decision by the end of December. “If we’re successful then every investigation that has been based upon this overbroad template will have to come to an end,” he says. 

Despite the stranglehold that the CPSO seems to have on private, individualized medical care in Ontario, the motion was not presented to an independent review board – it essentially asks the College to squash its own investigation. 

College counsel oversees all CPSO matters. There is no clear separation between investigation, prosecution and discipline.

“There have been a lot of accusations of bias, so they created a new independent ‘Discipline Tribunal,'” details Alexander, by hiring independent judicators to mingle with CPSO members on hearing panels. 

“They tried to give a veneer of independence, but the judicators are hired by the College. It’s still problematic,” notes Alexander. 

Dr. Trozzi weighs in on what these proceedings mean for the practice of medicine and providing individualized medical care to patients in Ontario.

He refers to the persecution of ethical doctors as “weaponization of what is supposed to be a regulatory body.” 

And at the end of all of this, it’s patients who suffer most.

“For every Doctor who is ethically and scientifically intact, who is sidelined from taking care of patients in this province, that’s thousands of people who have no access to an ethical doctor who knows the science,” Trozzi reminds us.

If the motion is successful, dozens of doctors could be vindicated from the accusations against them and able to once again provide direct patient care.

“If it goes the other way, well it [won't have] changed much,” says Dr. Trozzi.

The intent is that the right to see a doctor who has a duty to make informed judgement calls without risk of reprimand returns to the practice of medicine in Ontario.