Ontario Tribunal to Decide ‘Professional Misconduct’ Case Against Doctor Critical of COVID Measures

Dr. Crystal Luchkiw of Barrie, Ont., is facing the potential loss of her license for her criticism of Ontario's COVID-19 public health measures. Courtesy of Michael Alexander

A disciplinary tribunal is set to make a decision that could have wide-reaching implications for many doctors being investigated after opposing COVID-19 health measures, says attorney Michael Alexander.

The tribunal, which hears disciplinary cases within the College of Physicians and Surgeons of Ontario (CPSO), has reserved its decision on the case of Dr. Crystal Luchkiw while weighing the arguments presented at a May 19 hearing.

It was the final hearing in a series of hearings that has explored the limits of doctors’ freedoms of speech and practice, and the limits of the CPSO’s powers over the profession.

COVID Measures ‘Mere Guidelines’

Alexander, Luchkiw’s attorney, has argued all along that the CPSO’s rules for doctors on COVID health measures are “mere guidelines” or “recommendations” and don’t have the power of law.

Those rules included that doctors were not to speak publicly against official health recommendations, they were not to issue vaccine exemptions except in extreme cases, and they were not to prescribe alternative medications for treating COVID-19.

Luchkiw’s alleged breach of conduct relates to a vaccine exemption one of her patients received (though it hasn’t been proven she issued that exemption herself), and to public comments she made that were critical of official health recommendations.

A suspected breach of the CPSO’s guidelines does not warrant the suspension of Luchkiw’s license and an investigation into her conduct, Alexander says, and he calls for an immediate halt to the CPSO’s actions against his client.

“If the tribunal were to decide that the college can’t prosecute people because they have acted contrary to ‘suggestions and recommendations,’ that would invalidate all the investigation orders they have written for all the doctors who are currently being investigated or prosecuted around COVID-19,” Alexander told The Epoch Times following an earlier tribunal hearing on Nov. 23. “All of those would come to an end.”

‘Obligation to Cooperate’ With Investigations

The CPSO’s counsel, Elisabeth Widner, argued on May 19 that Luchkiw has breached the rules for professional conduct by refusing to cooperate with the investigation by the CPSO’s Inquiries, Complaints and Reports Committee (ICRC).

“Even if Dr. Luchkiw believes that the investigation is unlawful, she is under a positive obligation to cooperate,” Widner said. She cited the Regulated Health Professions Act, legislation that outlines the CPSO’s powers to regulate the profession. Section 76 (3.1) states that “a member shall cooperate fully with an investigator.”

“Dr. Luchkiw refused to cooperate because her view was, and still is, that the college’s investigation orders ... failed to disclose reasonable and probable grounds for investigation,” Alexander said. “The orders do not make reference to actual events, that is, an act of professional misconduct as defined under the regulation.”

The investigation order against Luchkiw said 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 at a March 10 hearing if you remove the part about vaccines (since it’s only a “guideline” and not a point of professional misconduct), “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.

No ‘Harm’ Done?

The CPSO has argued that it had reasonable cause to start an investigation because Luchkiw’s patients were at risk of harm, that they may be harmed by not following official COVID health measures.

Widner cited in her final arguments section 25.4 of the Regulated Health Professions Act, which says the ICRC may suspend a practitioner’s license “if it is of the opinion that the conduct of the member exposes or is likely to expose the member’s patients to harm or injury.”

Alexander told the tribunal it must decide if the investigation orders meet the legal definition of “reasonable and probable grounds—whether the orders, as written, conform to that definition.” He said this is a matter of “logical interpretation” and “pure reason, so to speak” rather than a requirement that they look at all the evidence regarding Luchkiw’s actions.

Alexander also contests the idea that Luchkiw might have caused “harm” to her patients by not following the COVID health policies.

“What harm has she caused?” he said in an email to The Epoch Times. “The college has yet to find even a shred of evidence indicating that Dr. Luchkiw has caused harm to even one patient.”

He said it is the CPSO that has caused harm by depriving her patients of her care. “When Dr. Luchkiw was suspended, 1,700 patients lost their primary access to medical care in a system that is chronically underserved.”

About 20 percent of her practice was devoted to palliative care. “Hundreds of patients at the end of life suddenly found themselves without medical care and support,” he said.

Alexander has also made arguments that the CPSO’s guidelines violate the Charter rights to free speech and informed consent, which ensures individuals can make free choices about their medical care. The CPSO has argued that Charter freedoms have limits when exercising them can cause harm to others.

If the tribunal decides against Luchkiw, the CPSO will be allowed to continue its investigation of her conduct and proceed with another round of hearings—this time focused on her actions themselves (whereas the current hearings have examined whether an investigation should even be underway in the first place).

This decision on whether the CPSO has the right to investigate Luchkiw is more significant than any ruling on Luchkiw’s specific actions might be, Alexander said. This decision could impact whether the CPSO proceeds with similar cases against other doctors, whereas decisions on Luchkiw’s specific actions have a more limited impact, albeit significant to her personally.