Court confirms suspension for doctor who refused to wear mask during patient examination

The Ontario Divisional Court has affirmed a decision of the Inquiries Complaints and Reports Committee of the College of Physicians and Surgeons of Ontario to suspend a doctor’s registration for breaching an undertaking to always wear a mask at work.

In Matheson v. College of Physicians and Surgeons of Ontario, 2021 ONSC 7597, the applicant had been practising as a physician in Ontario since 1992. In February 2021, a patient complained that the applicant did not wear a mask during the examination. To avoid an interim suspension of his registration, the applicant signed an undertaking to abide by the Ministry of Health’s directive, including wearing a mask at all times while at work. In March 2021, another patient made the same complaint.

In April 2021, the committee issued an order suspending the applicant’s registration. It found that the applicant did not wear a mask during a patient examination in March 2021.

The applicant applied for judicial review of the committee’s decision. He argued that the decision was unreasonable because the committee failed to consider his submission that he complied with the undertaking.

In dismissing the application for judicial review, the Divisional Court held that the committee’s decision to suspend the applicant’s registration was reasonable.

The court found that the committee’s conclusion that the applicant failed to comply with his undertaking to wear a mask at all times while at work was reasonable. According to the court, the evidence showed that the applicant’s submission neither directly addressed the patient’s complaint nor explicitly stated that he wore his mask during a patient examination in March 2021. Instead, he put forward generalities about compliance with his undertaking and various COVID-19 protocols.

“Given the contents of the submission and the fact that [the applicant] did not in fact address the substance of the complaint, [the] conclusion is reasonable and supported by the record,” the court said.

Moreover, the court ruled that the committee’s decision was not based on a general assessment of whether the applicant was complying with the undertaking. Instead, it was based on the specific concern that the applicant’s undertaking included a term about wearing masks and a prior complaint that he had not worn a mask when seeing patients.

“[The applicant’s] compliance with other aspects of the undertaking does not make the committee’s decision unreasonable,” the court said.