Committee’s decision to take no action against OMA President for “victim blaming” upheld

By: Sari Feferman

The Background

In 2018, a physician, Dr. X, posted on Twitter and referred to two other physicians using offensive and vulgar language. Members of the physician community expressed concern to the president of the Ontario Medical Association (OMA) (the “President”) about Dr. X’s Twitter post and his connection with the OMA. The President communicated with the OMA membership via email, and published a statement called a “President’s Update”.

One of the physicians to which Dr. X referred in his Twitter post (Dr. L) complained to the College of Physicians and Surgeons of Ontario (the “College”) about the President’s conduct in response to Dr. X’s post (the “Complaint”).

The College’s Inquiries, Reports and Complaints Committee (the “Committee”) took no action with respect to the Complaint. Dr. L sought a review of the Committee’s decision by the Health Professions Appeal and Review Board (the “Board”).

The Complaint & Response to the Complaint

In the Complaint, Dr. L expressed concern that the President empowered and protected Dr. X in her social media posts and media interviews by validating Dr. X’s lies. The Complaint further alleged that in her email to all (42,000) OMA members, the President “victim blamed” Dr. L and the other physician.

In her response to the Complaint, the President stated that the OMA had to address concerns from physicians asking for comments on Dr. X’s post. This led to her social media exchanges and the publication of the President’s Update. The President pointed out that when she learned about Dr. X’s posts, she denounced the language he used, and she tried to give information in a balanced way by pointing out that Dr. X did not hold any office at the OMA or post on its behalf.

The Decision of the Board

The Board reviewed the adequacy of the investigation and the reasonableness of the Committee’s decision.

Dr. L argued that the Committee failed to investigate the veracity of the President’s response to the Complaint. The Board stated that this is not the Committee’s role. When considering a complaint, the Committee’s mandate is to protect the public interest and improve the quality of physician care. With this view – and with the understanding that an investigation is generally document-based and therefore, limited in making findings of credibility – the Committee must determine whether allegations of professional misconduct warrant a referral to the Discipline Committee. Here, the Board found the Committee gathered the information needed to make a decision regarding the President’s conduct in response to Dr. X’s posts, including the College’s policy on social media. The Board ultimately found the Committee’s investigation adequate.

Dr. L argued that the Complaint related to the President’s conduct in response to Dr. X’s attack on a female racialized member of the profession, which was witnessed by the public and physician community, and that the Committee unreasonably failed to take action against her. Counsel for the President submitted that the decision was reasonable and that it would be a mistake for the College to police the OMA, as this is not the role of the College or within the jurisdiction of the Committee.

In determining the reasonableness of the Committee’s decision, the Board considered the Committee’s reasoning process and whether the chain of analysis was coherent, rational, and justified.

The Board noted that the Committee did not need to determine whether the President was credible. The Committee had before it a paper review and no opportunity to test the parties’ statements through examination or cross-examination. There was no information before the Committee indicating that the President knowingly conveyed false information to the public. The Board considered that Dr. L was asking the Committee to go beyond its mandate and determine that the President acted in such a way to protect Dr. X and victimise Dr. L.

The Board found that the Committee appropriately considered Dr. L’s concerns in order to determine whether specified allegations of professional misconduct warranted a referral to the Discipline Committee. The Board found there was no information to suggest that the Committee’s decision to take no action with respect to the Complaint was not in the public interest and its decision was based on a chain of analysis that was rational, coherent and justified in relation to the facts.

The Board confirmed the Committee’s decision to take no action with respect to the Complaint.

Conclusion

This decision outlines the Committee’s analysis when determining whether to refer allegations of professional misconduct to the Discipline Committee. The Committee will not determine the veracity of a party’s submission, nor will it assess the credibility of a party. Generally tasked with completing a document review of the matter, the Committee will make a determination while fulfilling its mandate to protect the public interest and improve the quality of care.

This decision is also a reflection of the growing trend of College complaints based on a professional’s conduct on social media. It may serve as a reminder to professional members to be conscious of the way in which they represent themselves and their professions on social media. While outlets like Twitter and Facebook can be useful tools for conveying important information to the public and engaging with colleagues, they are public forums where the words, thoughts, and opinions of the health professional are on display and can easily be misinterpreted, taken out of context or embellished, which can give rise to complaints and regulatory action.

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