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Professionals - Misconduct. Trozzi v College of Physicians and Surgeons of Ontario
In Trozzi v College of Physicians and Surgeons of Ontario (Div Court, 2024) the Divisional Court dismissed a JR, here against a decision and penalties [ie. it "revoked his licence to practise medicine in Ontario"] imposed by the Ontario Physicians and Surgeons Discipline Tribunal that found the applicant doctor had engaged "in conduct that would reasonably be regarded by members as disgraceful, dishonourable or unprofessional" and "incompetent" ["as defined by subsection 52(1) of the [Health Professions Procedural Code, Schedule 2 to the Regulated Health Professions Act"] over a COVID dispute.
Here the court considered the enforceability of CPSO misconduct policies, holding that they are not law bur 'evidence':(c) Did the Tribunal Err by Treating Guidelines and Policies as having Statutory Force?
[72] Dr Trozzi objects to being found to have committed misconduct based on breach of non-statutory policies. He submits that the categories of failing to maintain the “standard of practice” and committing conduct “that would reasonably be regarded by members as disgraceful, dishonourable or unprofessional” are vague and cannot be filled by non-binding guidelines and policies.
[73] The lack of specific regulatory definitions of professional misconduct was also the basis of Dr. Trozzi’s challenge of the “reasonable and probable grounds” for the College’s initial investigations. He argued that he was not required to produce files as ordered because there were insufficient particulars of the alleged misconduct to support an investigation and a production order.
[74] This issue has previously been resolved by this court. In The Christian Medical and Dental Society of Canada v. College of Physicians and Surgeons of Ontario, 2018 ONSC 579, aff’d 2019 ONCA 393 (CanLII), this court held,[28] The Policies have been adopted by the CPSO as policies of general application. The Policies establish broad expectations of physician behaviour and are intended to have normative force. They articulate what the CPSO believes the tenets of medical professionalism require independently of CPSO policy. There is no issue that the Charter applies to the Policies.
[29] However, the Policies have not been adopted pursuant to the authority granted to the CPSO under the RHPA to enact regulations. Nor are the Policies a "code, standard or guideline relating to standards of practice of the profession" adopted pursuant to section 95(1.1) of the Code of which compliance is required pursuant to such provision. Accordingly, non-compliance with the Policies is not a specific act of professional misconduct under the professional misconduct regulation of the CPSO, being Professional Misconduct, O. Reg. 856/93. The Policies also do not provide for a penalty for non-compliance with their terms and no mandatory consequences flow from their breach.
[30] This raises the applicability of the Policies in respect of any allegation of professional misconduct involving a breach of a provision of the Policies by a physician. Whether a physician's actions amount to such misconduct would require a determination by the Discipline Committee of the CPSO, having regard to the standards of practice and professionalism. The Policies may be used as evidence of such professional standards, and of the conduct expected of a physician in particular circumstances, in support of an allegation of professional misconduct. However, a physician remains entitled to seek to lead contrary evidence and to argue that failure to adhere to the Policies' guidance did not, on the particular facts, constitute professional misconduct. [75] The tribunal was alive to the role of policies before it. In discussing the concept of “disgraceful” conduct, the tribunal received several policies and other guidance documents that were in evidence before it and reasoned,[64] The above documents do not bind the Tribunal in our determination of what constitutes professional misconduct, but they do provide useful guidance in determining what conduct "would reasonably be regarded by members as disgraceful, dishonourable or unprofessional." Taken together, they establish that the profession's core values and expectations include behaving professionally while advocating for patients, in a manner that promotes the health and well-being of the public. Even when engaged in debate or conflict, members should be civil, collaborative and work towards the public good. Physicians are also expected to stay informed during a public health emergency and, in the context of the COVID-19 pandemic, should not undermine public health measures. [Emphasis added.] [76] The bolded words in the preceding quotation correctly express the court’s decision in The Christian Medical and Dental Society of Canada.
[77] In Yazdanfar v. The College of Physicians and Surgeons, 2013 ONSC 6420, this court discussed the determination of standards of practice from evidence reflecting a common understanding within the profession. The court wrote,[36] A standard of practice exists even when it is not explicitly set out in a written code; a reviewing tribunal may ascertain it "by reference to evidence of a common understanding within the profession as to expected behavior of a reasonable professional, or by deducing it from the profession's fundamental values": Walsh v. Council for Licenced Practical Nurses, 2010 NLCA 11, 295 Nfld. & P.E.I.R. 222, at para. 48, Green C.J.N.L ., concurring. The ASPS guideline was not found to comprise a binding code in the present case; rather, it was found to be reflective, after consideration of extensive evidence, of a common understanding within the profession of which the appellant had a responsibility to be apprised. [78] In discussing how to determine “standards of practice” in connection with the claim that Dr. Trozzi failed to maintain standards of practice, the tribunal again found,[68] College policies can provide guidance as to the standards against which the actions of physicians are assessed (Khan v. College of Physicians and Surgeons of Ontario, 2023 ONSC 2096 at para. 60) ...
[69] In this case, we rely on the College's policies and statements, as well as the CanMEDS Framework, as evidence of a common understanding within the profession as to the expected behaviour of members with regards to communications during a pandemic. Dr. Gardam's opinion also assists in determining the applicable standard of practice. As we will discuss in more detail below, we find that what is "reasonably expected of the ordinary, competent practitioner" is that they refrain from spreading misinformation and conspiracy theories intended to undermine public health measures during a pandemic. [79] The tribunal did not give statutory force to any policies or guidelines. This ground of appeal is dismissed.
(d) Did the tribunal err in Finding that the College had Reasonable and Probable Grounds to Embark on an Investigation of Dr. Trozzi’s Conduct?
[80] I do not need to decide if this ground of appeal lies given the tortured procedural history by which it was dealt with and appealed below. Even if the issue remains appealable, I would dismiss this ground of appeal.
[81] The principal submission made to oppose the investigation was that the College was basing its charges on the non-statutory guidelines and policies. As described in para. 20 of the tribunal’s interlocutory decision dated March 10, 2023, Dr. Trozzi argued that without those guidelines and policies being treated as binding standards of law, the investigation was just a fishing expedition under an order that lacked reasonable and probable grounds.
[82] The tribunal correctly found in both its interlocutory decisions that the College only advanced guidelines and policies as evidence and not as binding statements of law. As such there is no reason why they could not stand as a reasonable and probable grounds to support an investigation. This court found as much in the case of Dr. Luchkiw v. College of Physicians and Surgeons of Ontario, 2022 ONSC 5738 at para. 65.
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