The BC government’s ordering of health measures relating to the COVID-19 pandemic, such as vaccination and masking requirements, has resulted in much legal wrangling, including litigation by or against health professionals who oppose such measures.
For example:
- On March 16, 2022, a group of health care professionals filed a petition to the court to challenge the validity of various orders by the Provincial Health Officer, including the order that workers in various publicly-funded health care facilities be vaccinated: Tatlock v. AGBC, BCSC S-222427 (Vancouver Registry).
- On February 2022, the College of Physicians and Surgeons of BC (CPSBC) issued a citation against Dr. Charles Hoffe, for his publishing statements on social media and other digital platforms that the College alleges were misleading, incorrect or inflammatory about vaccinations, treatments, and public measures relating to COVID-19.
- On March 18, 2022, the Inquiry Committee (IC) of CPSBC suspended a physician, Dr. Malthouse, on an interim basis, pending further investigation, for his having apparently issued, to an investigator, medical certificates purporting to exempt the recipient from all vaccination requirements (not merely COVID-19 vaccinations) and from all face mask (including face shield) requirements. The IC issued its suspension under section 35 of the Health Professions Act, RSBC 1996, ch. 183 (”HPA”).
In this article, we examine the interim suspension of Dr. Malthouse in more detail.
A redacted version of the IC’s reasons (the “Decision”) is available through the CPSBC website here. A public summary of that that decision is here.
Evidence of misconduct: The evidence underlying the interim suspension involved an investigator who applied for vaccine and masking exemptions through an online website, paid about $800, and received two exemption certificates issued by the Registrant. The investigator did not have contact with the Registrant, and did not provide any medical information indicating a legitimate need for the exemptions. However, the form he completed had pre-populated check-marks indicating such symptoms as “Phobia to Masks”, “Hyper-sensitivities”, and “Psychosocial Condition”. The exemption certificates he received purported to exempt the investigator from all forms of vaccination, and all form of face coverings, for a minimum of ten years each. They also misrepresented that the investigator was a patient who was under the Registrant’s “longitudinal care”. The Registrant also used his status as an active registrant of the College.
The test for extraordinary action: The IC applied the now well-known test for “extraordinary action” pending investigation, as set out in Scott v. College of Massage Therapists of British Columbia, 2016 BCCA 180, which asks the following:
- Is there a “prima facie” case to show that the conduct alleged has taken place?
- Is action necessary to protect the public while the matter is further investigated or brought to a hearing?
- If the answer to both questions is “yes”, what action is sufficient and proportionate?
The conclusions of the IC:
A prima facie case. First, the IC accepted that the evidence established a “prima facie” case against the Registrant, given his having apparently issued false or deceptive vaccination and mask exemptions, “without any contact with the patient and without any genuine objective medical evidence for his opinions,” and also given “the exemptions issued contain demonstrably untrue statements”. [34] Further, given that the vaccine exemption related to “any” type of vaccination, and the IC panel was not aware of “any known medical condition that would justify this conclusion,” the IC also had serious concerns with the Registrant’s overall competence. [36]
Action is necessary to protect the public. Second, respecting risk to the public, the IC recognized that, “We are in the midst of a dynamic pandemic. There continues to be the potential for resurgence and new variants of COVID-19.” [46] Further, “The mask mandates and requirements for proof of vaccination may vary from time to time. At present, public health orders are being relaxed in some jurisdictions, but may of course increase again if circumstances change.” [47] Given that citizens “rely on mask exemptions and vaccine exemptions or other valid documentation issued by physicians,” [47] the issuance of false documents “continues to present a risk of public harm”. [47]
Given a variety of factors, the IC concluded “a high likelihood that the alleged misconduct would be repeated if no interim order is made.” [48]
The necessity of a suspension. Third, with respect to whether a suspension was necessary and proportionate, the IC was satisfied that restrictions on practice would not be sufficient to protect the public. [54]
- First, practice restrictions in this case would be difficult or impossible to monitor. [55]
- Second, the evidence indicates the Registrant is willing to make knowingly untrue statements and “stake” them with his status as an active registrant. [56]
- Third, the “essence” of the practice of medicine “is a bona fide doctor-patient relationship, leading to consideration by the physician of the patient’s medical condition, followed by a reasoned diagnosis based on the physician’s expertise and experience, and ultimately an evidence-based plan for treatment that responds to the patient’s condition and promotes the patient’s well-being.” [57] Instead of these things occurring, the Registrant “subordinated his professional obligations and the best medical interests of his “patient” to some other consideration.” [58] The IC concluded that, “Overall, this approach is completely incompatible with what is required of a physician and is inconsistent with the safe competent practice of medicine.” [59]
As the IC’s concerns “transcend the issue of vaccine or mask exemptions,” it was unable to conclude that anything short of a suspension could sufficiently address the risk to the public. [60]
Decision and Order in the matter of extraordinary action under HPA s. 35 concerning Dr. Stephen Malthouse(linked here).
Lisa C. Fong, Q.C. and Michael Ng