Understanding the Authority to Issue Interim Orders

Issuing an interim order during an investigation is an extraordinary power that can have significant consequences for the practitioner. Courts scrutinize them to ensure that any legislative preconditions have been met and that the orders do not go further than necessary. In Thirlwell v. College of Physicians and Surgeons of Ontario, 2022 ONSC 2654 (CanLII), https://canlii.ca/t/jp4mq a physician was under investigation for issuing inappropriate letters exempting individuals from COVID vaccinations. There was evidence that the registrant had issued such letters based on an ideological view about the government’s response to the pandemic, the coaching of prospective patients on what to say in order to be issued such a letter, charging a fee for such letters, and failing to cooperate with the regulator’s investigation. The regulator issued an interim order preventing the issue of such letters and monitoring compliance, including requiring access to the practitioner’s billings to OHIP.

The practitioner’s challenge to the interim order was narrowed to the requirement to provide access to the registrant’s OHIP billings. In upholding the interim order provisions, the Court made the following points:

The Court quoted another case that said: “If society once erred on the side of protecting doctors’ reputations, times have rightly changed. The law prefers and gives primacy to the goal of protecting vulnerable patients.”

There only needs to be some evidence to support a risk of harm to patients, which was certainly the case here.

On the issue of the harm to patients being speculative given the practitioner’s recent cooperation, the Court said: “The future is always speculative. It’s the past on which any concern is based. In this case, there is more than enough to evoke concern for the safety of patients. This is not a circumstance where the court is being asked to speculate based “in essence on one incident” or where the court is being asked to search for the existence of the evidence. The history demonstrates the willingness of Celeste Jean Thirlwell to put at risk, not just the health of these patients, but all members of the general public who may, without knowing of the exemption, come in contact with those patients.” [footnotes omitted]

The proposition that the interim order should be the least restrictive one necessary to protect the public applied to the order as a whole and not each, individual component of the order.

The motivation of the practitioner (in this case ideological belief) was relevant to what kind of interim order was necessary to protect patients.

In this case, it was reasonable for the regulator to seek third party information to verify the accuracy and completeness of the practitioner’s self-reports as part of the monitoring regime.

The interim order was upheld.

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