In January 2024, theOntario Physicians and Surgeons Discipline Tribunal (the Tribunal) of theCollege of Physicians and Surgeons of Ontario (CPSO) released two separate penalty decisions relating to the conduct of two physicians during the COVID-19 pandemic.
One of the decisions,College of Physicians and Surgeons of Ontario v. Trozzi, resulted in the CPSO’s most serious penalty: revocation of the physician’s certificate of registration.
The Misconduct in Question
In October 2023, the Tribunal found that Dr. Trozzi had committed acts of professional misconduct and was incompetent as defined by s. 52(1) of the Health Professions Procedural Code, schedule 2 to theRegulated Health Professions Act, 1991.
Specifically, the Tribunal found that Dr. Trozzi promoted non-scientific and baseless conspiracy theories about COVID-19, cast doubt on the motives of public health officials around preventative measures, and discouraged adherence to public health interventions.
The Tribunal also found that Dr. Trozzi’s care of patients in relation to granting medical exemptions from COVID-19 vaccines did not meet the standard of practice; and that he demonstrated incompetence through his lack of knowledge or judgement in obtaining informed consent.
Finally, the Tribunal found that Dr. Trozzi did not comply with his duty to respond promptly and completely to the College’s requests for documents and his “piecemeal, prolonged and ultimately incomplete approach to providing documents and information to the College” also constituted misconduct.
The Penalty: Revocation
The College sought revocation of Dr. Trozzi’s certificate of registration and a reprimand along with costs of the hearing, totalling almost $95,000.
In response, Dr. Trozzi argued that revocation should be reserved for physicians who have engaged in repeated misconduct and have wilfully breached undertakings and orders. He also argued that his right to expression is protected by section 2(b) of theCanadian Charter of Rights and Freedomsand that any penalty directed at the substance of his opinion would infringe those rights and would have a chilling effect on the expressive rights of other physicians.
Since Dr. Trozzi raised the question ofCharterrights, the Tribunal engaged in a proportionality analysis, balancing the “severity of the interference of the Charter protection with the statutory objectives.” It concluded that the statutory objectives achieved by revocation of Dr. Trozzi’s certificate of registration outweighed hisCharter rights.
Revocation has undeniably serious professional consequences for any regulated health professional. For physicians, it means that the physician may no longer engage in the practice of medicine. However, it does not necessarily mean the permanent exclusion of the health professional from the profession. A registrant whose certificate of registration has been revoked may apply for reinstatement after one year (in the case of revocation because of sexual abuse, after five years).
The Tribunal considered the chilling effect revocation would have on the expressive rights of physicians. It noted that the findings of professional misconduct and penalties associated with it do not affect the rights of physicians to engage in debate, even heated debate, about public health measures and the science underlying those measures. Rather, the findings and associated penalties are aimed at addressing misleading, inflammatory speech that contributed to harm to the public during a public health emergency.
In deciding whether revocation was an appropriate response to Dr. Trozzi’s misconduct, the Tribunal considered whether he was ungovernable. Ultimately, it concluded that Dr. Trozzi was ungovernable as evidenced by his own statements and actions. The Tribunal noted that there were several guidance documents from the College about how physicians’ practices could and should support public health measures during the pandemic including on social media. The College released these guidance documents to ensure that physicians were informed about and acted to support public health measures.
The Tribunal found that Dr. Trozzi not only failed to pay heed to those guidance documents, but he also actively worked toundermine them. The clearest examples of these efforts were through Dr. Trozzi’s extreme and inflammatory rhetoric, to convince the public that the pandemic was a hoax and that COVID-19 vaccines are dangerous.
The Tribunal noted that there were no signs showing that Dr. Trozzi had a willingness to change. Rather, the evidence showed that he intended to continue his spread of misinformation through his social media and website. His conduct, his own words during the proceeding, and his commentary after the misconduct decision gave the Tribunal reason to believe that remediation was unlikely. The Tribunal had no faith that a suspension of Dr. Trozzi’s certificate, even with terms, conditions or limitations, would lead to insight or a willingness to accept the authority of the College.
The Tribunal noted that revocation would maintain public confidence in the profession and the College’s ability to regulate in the public interest given the finding of ungovernability. The Tribunal also reasoned that revocation ensures that Dr. Trozzi cannot use his status as a licensed physician to bolster the credibility of his COVID-19 communications, thereby protecting the public from the harm of misinformation cloaked with the appearance of authority.
Note: Our blog is not intended to act as legal advice. Our legal team has acted for a wide variety of professionals facing disciplinary proceedings. Please contact us to see if we are able to assist.
By Mina Karabit
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