On July 6, 2023, the Ontario Physicians and Surgeons Discipline Tribunal (“OPSDT”) determined that Dr. Crystal Luchkiw, a family physician from the Barrie area, had engaged in disgraceful, dishonorable or unprofessional conduct for refusing to co-operate with the investigations of the College of Physicians and Surgeons of Ontario (the “College”) into her practice of exempting patients from the COVID-19 vaccine.
FACTS
In September 2021, the Simcoe Muskoka District Health Unit wrote to the College requesting that it investigate Dr. Luchkiw’s infection prevention and control (“IPAC”) practices.
On the same day, a member of the public emailed the College expressing concern about an online video interview in which Dr. Luchkiw discussed various issues relating to COVID-19 vaccine, which included claims:
- that the government and local hospital were exaggerating the number of cases and that it was a government hoax; and
- that the vaccine, among other things, had not been properly researched.
On November 29, 2021, a College investigator and nurse inspector went to Dr. Luchkiw’s office to notify her of the investigation and to conduct a review of her adherence to public health protocols around the COVID-19 pandemic but upon arrival were refusal access.
The College attempted a second time to investigate this physician after the Royal Victoria Regional Health Centre wrote to it advising it that Dr. Luchkiw had recently resigned her privileges at the hospital while it had been investigating her in relation to two matters:
- an interview in which she gave inaccurate information about the COVID-19 pandemic; and
- a COVID-19 vaccine exemption obtained by an immunocompromised patient, which the hospital had reason to believe was given by the doctor.
As a result, the College wrote to Dr. Luchkiw requesting further information, and in particular, access to patient medical records so that they could be reviewed. The doctor refused to produce this information to the College.
On February 22, 2022, the College’s Inquiries, Complaints and Reports Committee (“ICRC”) issued an interim order against Dr. Luchkiw preventing her from providing COVID-19 vaccine exemptions.
ISSUE
At issue in this decision is not whether the physician engaged in wrongful conduct by providing COVID-19 vaccine exemptions. The issue is whether she should be reprimanded for failing to cooperate with the College’s investigation into her vaccine exemption practice.
DECISION
The physician’s defence for refusing to cooperate was based on legal arguments that the College lacked the authority to regulate medical exemptions from vaccines, freedom of expression and IPAC protocols.
The tribunal disagreed and observed that a regulated health professional has a duty to cooperate with its governing College despite any legal defences they may have on the merits of the complaint (at para. 19):
As the College states in its submissions, regulated health professionals have no common law, proprietary or constitutional right to practise medicine. A certificate of registration from a regulated health profession is a privilege, conferred by statute, where the member establishes that they possess the necessary qualifications, and undertakes to abide by the governing regime. The Tribunal has described the duty to cooperate as “an essential tool for the College to fulfill its primary objective of protecting the public interest” (College of Physicians and Surgeons of Ontario v. Chandra, 2018 ONCPSD 28 at pp. 23-24 and 32).
As a result, the OPSDT found against the physician and ordered a further hearing to determine penalty and costs.
Decision Date: July 6, 2023
Jurisdiction: Ontario Physicians and Surgeons Discipline Tribunal
Citation: College of Physicians and Surgeons of Ontario v. Luchkiw, 2023 ONPSDT 14 (CanLII)
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