A Barrie physician and two other Ontario doctors have failed in their bid to block disciplinary action against them by their professional body.
Their lawyer now says he intends to ask the Ontario Physicians and Surgeons Discipline Tribunal chair to review the decision and he intends to bring forward another motion.
Dr. Crystal Luchkiw, a Barrie family doctor, was suspended from practising medicine last March in connection with her approach to public health measures relating to COVID-19. Dr. Patrick Phillips was suspended in May and Dr. Mark Trozzi in December for similar approaches.
Luchkiw is accused of committing professional misconduct by failing to co-operate with the College of Physicians and Surgeons of Ontario investigation into her infection-control practices, communications about COVID-19 and issuance of vaccine exemptions.
Trozzi, a Bancroft doctor, is accused of making misleading, incorrect or inflammatory statements about vaccinations, treatments and public health measures concerning COVID-19 through his email and online communications about the pandemic.
Phillips, working in Englehart, faces similar accusations and is also accused of disclosing information from an investigation, failing to co-operate with the college, and engaging in disgraceful, dishonourable and unprofessional conduct in different aspects of his treatment of patients and public health reporting.
In a motion to the tribunal, the doctors charged the COVID-19 direction issued by their college limits medical exemptions, curtails physician comments about COVID-19, targets “anti-vaxxers” and “anti-maskers” and impedes the discussion for informed consent of patients to the use of precautionary medications and limits their freedom of expression.
All three are being represented by Toronto lawyer Michael Alexander. He argued the prosecutions for breaching COVID-19 protocol are unlawful and that the regulatory body doesn’t have the authority to investigate, describing the investigations as overbroad “fishing expeditions.”
He also argued the doctors’ constitutional rights of freedom of expression and life, liberty or security were breached.
In its decision released Thursday, the tribunal dismissed suggestions of wrongdoing by the college.
“There is in fact no evidence that anything improper took place during the investigations,” the five-member panel concluded in the written decision.
It also decided the three doctors can rely on the Charter arguments when the allegations are later heard.
Disciplinary hearing dates for the three doctors have yet to be scheduled.
Alexander said he will challenge the latest decision.
“The hearing panel simply refused to address our key submission, which was that the registrar, Dr. Nancy Whitmore, did not have reasonable and probable grounds to order investigations of the doctors,” he said in a statement Friday. “Furthermore, the panel also ignored our submission that the college had failed to establish that the doctors had violated a standard of practice.”
Given that the college agreed its statements related to COVID-19 are guidance documents, not binding rules, Alexander said the tribunal’s decision does not meet the basic standards of legal reasoning.
Last fall, a Divisional Court panel upheld Luchkiw’s suspension and found no procedural unfairness by the college. Alexander said he has filed a notice of motion with the Ontario Court of Appeal to challenge that decision.
Luchkiw has been practising family medicine in Barrie since 2014 and held privileges at the Royal Victoria Regional Health Centre until she resigned from that position Oct. 22, 2021, after she refused to be vaccinated.
