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Medical Professionals (RHPA) - Doctors Cases (4). Gill v. Health Professions Appeal and Review Board
In Gill v. Health Professions Appeal and Review Board (Div Court, 2024) the Divisional Court dismissed two JRs challenging CPSO cautionary decisions regarding a doctor's social media COVID comments.
Here the court considers the role of professional monitoring bodies, specifically the CPSO:[75] Balanced against Dr. Gill’s free speech rights was the College’s mandate to regulate the medical profession, which includes ensuring that physicians conduct themselves in a manner aligned with professional ethics. This is made explicit in s. 3(1)5 of the Code, which stipulates that one of the College’s objectives is to “[t]o develop, establish and maintain standards of professional ethics for its members”. In keeping with this object, the College passed its guidance with respect to how physicians should conduct themselves on social media generally, and more specifically, during the COVID-19 pandemic. For ease of reference these policies are reproduced again.
[76] The College’s Statement on Social Media directs that physicians “[p]rotect their own reputation, the reputation of the professions, and the public trust by no posting content that could be viewed as unprofessional.”
[77] The College’s guidance to physicians about how they should be engaging on social media about issues relating to the pandemic reads:Physicians are reminded to be aware of how their actions on social media or other forms of communication could be viewed by others, especially during a pandemic. Your comments or actions can lead to patient/public harm if you are providing an opinion that does not align with information coming from public health or government. It is essential that the public receive a clear and consistent message. The College’s statement on Social Media – Appropriate Use by Physicians outlines general recommendations for physicians including acting in a manner that upholds their reputation, the reputation of the profession and maintains public trust. [78] These policies are specifically referenced in the College’s decisions in which a caution was issued.
[79] In carrying out its objectives, the College must uphold its overriding duty to serve and protect the public interest (Gore v. College of Physicians and Surgeons of Ontario, 2009 ONCA 546, 96 O.R. (3d) 241, at para. 12). The Supreme Court of Canada has repeatedly emphasized the importance of this role and the responsibility it entails. As the Supreme Court put it in Pharmascience v. Binet, 2006 SCC 48, [2006] 2 S.C.R. 513, at para. 36:The importance of monitoring competence and supervising the conduct of professionals stems from the extent to which the public places trust in them. [80] In this case, the College’s caution decisions found that in the context of a pandemic or public health emergency, misleading or false information about public health interventions could be dangerous to the public. This is because members of the public may give significant weight to doctors’ opinions, which in turn could cause them to ignore public health directives. This could put the public at risk. There is nothing unreasonable about this concern, and is one that has been recognized by courts across the country, including the Supreme Court of Canada. It is not, as Dr. Gill asserts, a “paternalistic” concern based on mere speculation.
[81] Thus, when the College chose to draw the line at those tweets which it found contained misinformation, it did so in a way which reasonably balanced Dr. Gill’s free speech rights with her professional responsibilities. Further, as discussed above, it did so in a manner that offered some protection to the public, but was minimally intrusive to Dr. Gill. In other words, its response was proportionate.
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