4 docs who won't give CPSO access to records are on shaky legal ground: Health law experts

The four Ontario doctors awaiting a provincial court’s decision on whether or not they are legally required to open up their medical records to the College of Physicians and Surgeons of Ontario will likely be disappointed by the outcome, according to lawyers with expertise in health law. “The college is completely within their regulatory sphere–they want to see records, they’re absolutely entitled to it,” said Paul Harte, principal lawyer at Harte Law in Toronto. He cited the Regulated Health Professions Act, which states in Section 75 that the college has the legal right to appoint an investigator to determine if a member has committed an act of professional misconduct or incompetence. Section 76 spells out physicians’ legal obligation to cooperate fully with the college, and prohibits anyone from obstructing an investigation. The CPSO announced on November 3 that it has asked the Ontario Superior Court of Justice to compel four physicians–Drs. Rochagne Killian, Mary O’Connor, Celeste Jean Thirlwell and Mark Raymond Trozzi–to cooperate with investigations into their practices, “including their issuance of medical exemptions for COVID-19 vaccinations or diagnostic testing.” Drs. Trozzi and Killian had also been barred last month from issuing exemptions for COVID-19 vaccination, masking and testing. Last week, CPSO took the further step of suspending Dr. Killian's medical licence. Read: 4 docs not co-operating with investigations into COVID practices: CPSO All four took the position that the college did not have the legal authority to obtain medical records and other information from their practice. One of the doctors–Dr. Thirlwell–stated through her lawyer that any attempts by the college to get records from her office will be “resisted physically, by private security,” according to the CPSO. She has also insisted that the college lacks jurisdiction to “police” medical exemptions. Rebecca Young, a partner at Damien Frost and Associates LLP in Toronto, said challenging the CPSO’s jurisdiction in appointing investigators to look into physicians’ conduct would be a “difficult task to do.” Speaking in general, she added that doctors under orders to hand over their clinic’s records to the college may be able to challenge the relevance of such a request. “And with COVID being novel it could lead to novel legal arguments,” said Young, whose areas of specialty include professional licensing and discipline. “Whether there’s merit to these novel arguments is another matter.” Harte said the arguments about the CPSO’s right to restrict statements or actions that contradict public health guidelines around COVID-19 are peripheral issues to what’s really at the heart of the CPSO’s filings this week. “The core issue here is not about COVID exemptions but rather about members of a self-regulated profession cooperating with their regulatory body,” he said. “If doctors won’t comply with an investigation by the regulator that’s supposed to govern them then they are, in essence, ungovernable.” Shae Greenfield, a spokesperson for the CPSO, said in an email to The Medical Post that the college's ability to effectively investigate complaints or possible misconduct by physicians is a "core tenet to self-regulation" and critical to protecting patients and maintaining the trust of the public. "If we are obstructed in that process, the legitimacy of our tribunal and its decision-making process is adversely affected," he wrote. Read: CPSO bars two doctors from issuing medical exemptions for COVID vax, masks, tests

4 docs who won't give CPSO access to records are on shaky legal ground: Health law experts

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