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In a trio of decisions, all released on February 6, 2021, the Inquiries, Complaints and Reports Committee (“ICRC” or the “Committee”) of the College of Physicians and Surgeons of Ontario (“CPSO”) ordered a physician to attend to be cautioned in person in relation to COVID-19 related content on her Twitter account. At the time of this publication, two of the three decisions have been appealed to the Health Professions Appeal and Review Board.
The CPSO became aware of the pediatrician’s social media content after receiving complaints from members of the public. Tweets at issue in two of the decisions stated, “[t]here is absolutely no medical or scientific reason for this prolonged, harmful and illogical lockdown” and “[i]f you have not yet figured out that we don’t need a vaccine, you are not paying attention”. The third decision also concerned a retweet that stated, “[c]ontact tracing, testing and isolation … is ineffective, naïve & counter-productive against COVID-19… and by definition, against any pandemic.” Concerns were also raised that in her comments on Twitter the doctor claimed, among other things, that COVID-19 is not a serious health issue, that Hydroxycholoroquine is a safe and necessary drug that should be used for COVID-19 and that a vaccine, and mitigation strategies such as masks are not necessary.
The matters were considered by the ICRC, who focused on the physician’s own tweets and retweet, not her comments on other tweets. In all three cases, the ICRC ordered that the physician attend to be cautioned in person with respect to her “lack of professionalism and failure to exercise caution in her posts on social media, which is irresponsible behaviour for a member of the profession and presents a possible risk to public health.”
With respect to the tweet about lockdown, the ICRC panel stated that it accepts that there is a range of views about the effectiveness of using lockdown to control COVID-19 spread and that the Committee “has no interest in shutting down free speech or preventing physicians from expressing criticism of public health policy.” The ICRC noted that it was valid to point out drawbacks to lockdown and to question whether the benefits outweigh the negative aspects and whether lockdown is working as expected in Ontario. However, the ICRC took issue with the physician stating “unequivocally and without providing any evidence that there is no medical or scientific reason for the lockdown.” The ICRC held that the tweet did not align with the information from public health and that “it is not accurate,” citing lockdowns in China and South Korea as evidence that lockdown can and has worked in reducing the spread of COVID-19.
With respect to the tweet about a COVID-19 vaccine, the ICRC stated that “a safe, tested vaccine is the ideal solution to protecting the population and bringing about an end to the pandemic with the lowest possible number of deaths.” In contrast, a return to “normal life” without vaccinating is a high-risk strategy that would involve a significant death rate among vulnerable patient populations as well as continue to pressure the healthcare system. The ICRC again highlighted that the physician did not provide any evidence supporting her statement that a vaccine was not necessary. The Committee considered her tweet to be irresponsible and a potential risk to public health because it would be “expected and understandable” that a certain proportion of the general public who read the tweet may decide to decline a vaccine.
With respect to the retweet, the ICRC held that, despite not authoring the tweet herself, retweeting indicated an endorsement of the information. The Committee held that it is valid to debate and question whether testing, contact tracing and isolation efforts have been sufficiently effective, but “to undermine the public health message by declaring without evidence that these measures are counterproductive…seemed indefensible to the Committee.”
The physician claimed that her tweets were taken out of context and that they came from her personal Twitter account and, thus, have no affiliation with her medical practice. The ICRC rejected both arguments, stating that “tweets by their very nature have minimal context” and noting that the physician’s Twitter biography makes it clear she is a doctor. As such, members of the public who are not healthcare professionals are likely to attribute significant weight and authority to the tweets.
In these decisions, the ICRC states clearly that physicians have a responsibility to use social media “appropriately.”
Miller Thomson’s Health Industry lawyers are available to assist with any questions or issues, including regarding regulatory College complaint matters and matters pertaining to privileging/credentialing of physicians and other regulated health professionals.
