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The Ontario Divisional Court in Thirlwell v College of Physicians and Surgeons of Ontario was recently called on to consider an order issued in the course of an investigation into the activities of Dr. Thirlweel, who was found to have been issuing medical exemptions to the COVID -19 vaccine improperly. Notably, Dr. Thirlwell was found to have been issuing the exemptions without a clear medical reason and with a view to profit, rather than provide exemptions based on the individualized medical condition of each patient.
After a series of encounters with the investigation committee with whose orders Dr. Thirlwell was reticent to comply, she was ultimately subject to terms and limitations on her practice. However, Mr. Thirelwell contested one of the conditions, that the College of Physicians and Surgeons be permitted to make inquiries with the Ontario Health Insurance Plan (“OHIP”) with respect to her billing practices and encounters with each patient.
The Court forcefully rejected Dr. Thirlwell’s argument that her billing practices were irrelevant to the issue of vaccination exemptions and were not the least restrictive means to protect the public. Rather, the College had broad latitude to achieve its mandate of protecting the public where there is evidence to suggest a member’s actions are exposing patients or the public to injury. Moreover, the college is to accorded deference in determining what means will best protect the public. The Court also indicated that although other measures were put in place to ensure no harm would be done to the public, the fact that access to the OHIP logs may overlap with those measures was not sufficient to quash that condition.
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When considering what sanctions to impose as a result of a member’s conduct, a regulator is required to consider what measures best protect the public, and courts will recognize that regulatory organizations are often in a better position to make that determination.
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