Court affirms suspension of doctor who allegedly issued COVID vaccine exemption to high-risk patient

The Ontario Divisional Court has affirmed a tribunal committee’s decision to suspend a doctor’s licence who allegedly issued a COVID vaccine exemption to a patient at high risk from the virus.

In Dr. Luchkiw v. College of Physicians and Surgeons of Ontario, 2022 ONSC 5738, the applicant has been practising family medicine in Barrie since 2014. She recently became the subject of two investigations by the College of Physicians and Surgeons of Ontario (CPSO). The CPSO commenced its investigations after it received information that the applicant issued a vaccine exemption to a patient at high risk for complications from COVID-19 due to his immunocompromised status.

The CPSO also received information that the applicant was “deficient” in her infection prevention and control practices and disseminated misinformation regarding COVID-19. The CPSO then appointed investigators to inspect the applicant’s practice.

However, the applicant did not cooperate with the investigators. The CPSO’s Inquiries, Complaints and Reports Committee notified the applicant that it was considering suspending her registration certificate. Ultimately, the committee ordered the suspension of the applicant’s registration certificate. The applicant then brought an application for judicial review of the committee’s decision with the Divisional Court.

The Divisional Court dismissed the application for judicial review. It found that the decision to suspend the applicant’s registration certificate is reasonable and the least restrictive order available to protect the public.

According to the court, there was ample evidence to support the decision. First, the CPSO received multiple reports concerning the applicant’s infection prevention and control practices and the issuance of a vaccine exemption to an immunocompromised patient. Second, the investigator who attended the applicant’s office observed “deficiencies” related to such practices.

“There was no signage at the entrance to the office advising that all patients and visitors are to wear a mask and practice hand washing hygiene,” Justice William Chalmers wrote. “The investigator also noted insufficient space for physical distancing, a failure to provide cleanable chairs in the waiting room, and there were no tissue and/or paper towel and lined waste receptacles available for disposal.”

The applicant argued that the investigations were unlawful because of “fatal defects” in the investigation orders and the CPSO’s “lack of authority” to regulate medical exemptions. Therefore, the committee cannot rely on her failure to cooperate as a reason to suspend her certificate of registration. The court disagreed.

The court stressed that all regulated health care professionals in Ontario must cooperate with an investigation under s.76 of the Health Professional Procedural Code. Thus, even if the applicant believes that the investigations are unlawful, she is under a positive obligation to cooperate.

“Clearly, the applicant did not cooperate in the investigation,” Justice Chalmers wrote. “She did not provide the list of patients for whom she had provided various types of treatments and medical exemptions related to COVID-19, and she did not provide the complete medical records for each patient listed.”

“She failed to respond to enquiries as to whether she provided the vaccine exemption to an immunocompromised patient. She failed to provide the investigators access to her office,” Justice Chalmers added.

The court found that the applicant’s failure to cooperate or recognize the authority of the CPSO is a sufficient basis for concluding that she is “ungovernable,” and this raises additional concerns concerning patient safety. Hence, the committee’s conclusion about her lack of cooperation and governability is factually grounded and reasonable.