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Suspended doc's lawyer says client was targeted due to COVID-related medical exemptions

'What I am concerned about in particular is that the college — not just in this case but also in others — is using the standard of practice to curtail speech,' says lawyer

The lawyer for a Barrie family doctor whose licence was suspended by the College of Physicians and Surgeons of Ontario (CPSO) says there will be an appeal if the regulatory body doesn’t overturn its decision. 

Michael Alexander, a constitutional litigator with the Justice Centre for Constitutional Freedoms, is representing Dr. Crystal Luchkiw in her case against the CPSO.

Luchkiw had her licence suspended March 17 by the CPSO’s investigations, complaints and reports committee.

Alexander said he was retained by Luchkiw in December after CPSO “investigators made an impromptu appearance at her office at around that time.”

While the CPSO has not released specifics about why the doctor's licence was suspended, Alexander said the issue of COVID-related medical exemptions “is at the core of our position” and the college shouldn’t have the right to regulate how that is done by doctors.

“The college is claiming the right to regulate medical exemptions in Ontario, but our position is they don’t have the legal authority to do that,” Alexander said. “That’s the major thrust of our position on this.”

He said the college has taken its cues from the provincial government and “in their statement about medical exemptions, the college cites a Health Ontario document.” 

“The Health Ontario document is not a law. It’s not a regulation; it's just a recommendation and, in fact, at the top of the document it says it is no substitute for advice you may take from a lawyer or a doctor,” Alexander added.

Alexander also said the CPSO has a standard of practice it sets for clinical skill and that shouldn’t interfere with the individual’s right to speak out against things such as public health issues.

“If a doctor wishes to speak out against political issues, like public health measures, that’s a right the doctor has as an individual,” he said. “It has no relationship to the standard of practice, in our view. What I am concerned about in particular is that the college — not just in this case but also in others  is using the standard of practice to curtail speech. I don’t think that’s what the standard of practice was meant to do.”

Alexander confirmed he’s also representing other doctors involved with what he called “college overreach.”

In Luchkiw’s case, Alexander said, unless the CPSO comes to a different position in its decision, there will be an application to Superior Court for a judicial review.

“I would say if we don’t hear from the college by the end of the week, we’ll be moving forward with judicial review,” he said.

On Tuesday, a CPSO spokesperson said the findings and evidence for the suspension can only be revealed after an appeal is filed.

According to the CPSO, on Nov. 18, 2021, Royal Victoria Regional Health Centre (RVH) officials notified the college, under Section 33 of the Public Hospitals Act and Section 85.5(2) of the Health Professions Procedural Code, that Luchkiw had resigned her medical staff appointment at the local hospital on Oct. 22, 2021. This was during the course of an investigation by the hospital into allegations related to her practice and conduct, as well as in connection with her non-compliance with hospital policies.

RVH chief of staff Dr. Jeffrey Tyberg confirmed Luchkiw is no longer affiliated with the Barrie hospital, but declined to provide further details because it’s a personnel matter.

Luchkiw has an office at Tollendale Village on Hurst Drive in south-end Barrie.

Alexander said Luchkiw had “somewhere between 1,600 to 1,700” patients.

When Alexander was asked if Luchkiw was available to comment on her licence suspension, he said his client is working on a statement, which could be made available at a later date.

Alexander said his client was not anti-vaccine, but did not believe the COVID-19 shot was ideal.

“She is not anti-vax; never has been. She does have particular concerns about the COVID-19 vaccines because, in her view, the critical scientific literature no longer supports the idea that the vaccines are safe and effective,” the lawyer said. “She believes she has been studying the literature and following what highly credentialed people have been saying about this. She thinks the information would indicate the vaccines are not safe and effective.”

The federal government's public health website page says: “Only vaccines that are proven to be safe, effective and of high quality are approved for use in Canada. COVID-19 vaccines are tested during their development according to international standards and then carefully reviewed by Health Canada. Health Canada will only approve vaccines where the benefits outweigh the risks.”

Alexander said Luchkiw gives her patients the choice about whether they want the vaccine, but also provides her “own assessment of the risks and benefits.”

Should an appeal be made regarding her medical licence, Alexander said the process could take up to six months depending on the courts, but he hopes to speed that up.

“We’ll be asking for a judicial review on an urgent basis given that patients are involved and the college has taken some rather extreme steps with Dr. Luchkiw,” he said. “Their treatment of her also involves other doctors who are being investigated for writing exemptions, and other doctors who want to write exemptions but are afraid if they do they will end up in discipline before the college.”

Alexander reiterated the importance of expediting the process not necessarily for Luchkiw, but for her patients. He says the CPSO notified the Ontario College of Pharmacists about the suspension and it cancelled all refills on prescriptions that Luchkiw had written.

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Shawn Gibson

About the Author: Shawn Gibson

Shawn Gibson is a staff writer based in Barrie
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