Orillia dentist Joe Philip’s complaint against Colin Lee, the Simcoe Muskoka District Health Unit’s (SMDHU) associate medical officer of health, has been dismissed - again.
Philip, who is suing the health unit for $10 million in a civil suit, filed a complaint with the Inquiries, Complaints and Reports Committee of the College of Physicians and Surgeons of Ontario, claiming that Lee “viciously” attacked him and his practice over alleged infection control lapses at his Wyandotte Street dental office.
The College ruled Philip’s complaint was “frivolous, vexatious, made in bad faith, moot or otherwise an abuse of process pursuant to Health Professions Procedural Code (HPPC) of the Regulated Health Professions Act.
Philip was not satisfied and asked the Health Professions Appeal and Review Board (HPARB) to review his complaint.
In a 20-page ruling issued May 20, the board confirmed the College’s initial decision and will “take no action with respect to the complaint.”
Philip told OrilliaMatters the decision is "discouraging."
It’s the latest salvo in a long, protracted and often bitter dispute between Philip and the health unit that began almost three years ago.
On Dec. 11, 2017, two SMDHU employees showed up at Philip’s dental clinic without prior notice and carried out an inspection of the premises.
They returned the following day to continue the inspection.
That day (Dec. 12, 2017) Philip was given a letter indicating the inspection was undertaken following “concerns from a member of the public.”
On Dec. 13, 2017, Philip was served with an Order pursuant to section 13 of the Health Protection and Promotion Act (HPPA), requiring the dental office:
- To cease the reprocessing of all reusable medical equipment/devices at the premises until further notice;
- To not use any reusable medical equipment/devices that have been reprocessed on the premises on any client/patient until further notice; and
- To provide thorough environmental cleaning of all patient areas, reprocessing areas and storage areas for medical equipment/devices prior to Dec. 18, 2017.
Philip complied with the Order. Days later, on Dec. 18, 2017, the SMDHU rescinded the Order.
On Feb. 15, 2018, the SMDHU issued a second Order under section 13 of the HPPA, listing specific allegations of infection control lapses at the clinic.
The Order indicated that a failure to provide adequate IPAC (infection and control) practices “may have resulted in the transmission of Hepatitis B, Hepatitis C and HIV”.
The Order required Philip to provide a list of all patients that received direct care prior to Dec. 18, 2017.
On Feb. 15, 2018, the same day that Philip received the second Order, he appealed and sought a stay of the Order with the Health Services Appeal and Review Board (HSARB).
At a case conference regarding these matters, held on Feb. 20, 2018, the date of Feb. 26, 2018 was set for the hearing of the stay motion, and the date of March 13, 2018 was set for a hearing of the appeal.
On Feb. 21, 2018, the SMDHU rescinded the second Order. That same day, it issued a statement, sent to local dentists, dental surgeons and dental hygienists.
The SMDHU stated that an inspection of Philip’s dental clinic identified that patients who had received dental services between Jan. 1, 2012 and Dec. 18, 2017 “may have been exposed to improperly cleaned and sterilized equipment used for procedures.”
While stating the risk of transmission of disease was “very low”, “as a precaution” the SMDHU recommended that patients be tested for Hepatitis B, Hepatitis C and HIV.
The following day, the SMDHU posted on its website a “Lapse Report” regarding the Orillia dental clinic.
It listed a number of allegations, including that the clinic:
- Inadequately reprocessed critical reusable medical equipment/devices prior to each client;
- Inadequately monitored and audited the cleaning and sterilization processes for reusable medical equipment/devices prior to each client;
- Reprocessed critical medical equipment/devices not protected from contamination;
- Inadequately disinfected dental water lines;
- Had inadequate environmental cleaning of patient and reprocessing areas; and
- Had inadequate administrative controls, including staff education and training
Prior to issuing these statements, the SMDHU asked Philip for a list of his patients so that they could be advised of the potential risks. Philip refused to release the list.
Following the SMDHU notification and posting of the Lapse Report, there was media coverage of the SMDHU’s concerns regarding Philip’s dental clinic and responses - including those that “strongly defended” Philip and asserted that the SMDHU had no credible basis for implying that his practice was a source of disease transmission.
In a statement released on June 19, 2018, addressed to various health-care providers, the SMDHU reiterated its concerns about the dental clinic. It noted that two individuals who had attended the clinic during the period specified in 2018 Order had tested positive for Hepatitis C. In a statement released on June 22, 2018, the SMDHU stated that one of the individuals who had tested positive for Hepatitis C was a child.
THE OTHER SIDE
In his complaint to the College, dated June 27, 2018, Philip expressed concerns that Lee, as the person who oversaw the actions taken by the SMDHU:
- Did not include the Royal College of Dental Surgeons of Ontario (RCDSO) in its inspection of the clinic;
- Did not attend the HSARB meeting (case conference) to discuss the SMDHU’s findings;
- Disseminated false and inaccurate information to the public when he published medical statements which led to irreparable damage to Philip’s reputation and practice.
Philip also alleged Lee “viciously attacked (him) by using media releases and health care faxes to irreparably destroy (his) reputation and business.”
Philip also said Lee “made incorrect statements regarding hepatitis C in the media, caused unnecessary panic and emotional distress for families by requesting that children and families be tested for blood borne infections; and caused the public to fear going to the dentist by suggesting that a patient can contract blood borne infections by visiting their dentist.”
THE COLLEGE
The College of Physicians and Surgeons of Ontario's Inquiries, Complaints and Reports Committee met on July 17, 2018, prior to receiving a response to Philip’s complaint from Lee. On that date, the Committee “formed the preliminary view that it would not investigate or take any action in response to Philip’s complaint” on the basis that:
- The behaviour complained of does not relate to the practice of medicine. It is about actions of public officials carried out in the course of their duties.
- The Committee is not the appropriate forum to undertake the review requested.
- There is no reasonable prospect of the Committee taking any action.
By decision dated Sept. 12, 2018, the Committee decided to take no further action.
In a letter dated Jan. 30, 2019, Philip requested that the HPARB review the Committee’s decision.
THE HPARB
In its May 2020 ruling, the Health Professions Appeal and Review Board said it “appears to the Board that there was no dispute regarding the SMDHU’s actions in this matter, or that (Lee’s) role regarding those actions was in his capacity as the associate medical officer of health for the SMDHU.”
The critical issues before the Committee were whether in his role as associate medical officer of health, Lee acted appropriately and whether he was acting in his capacity as a physician or as a civil servant.
“Again, the information that was before the Committee is clear as to what actions (Lee) took in his role as associate medical officer of health and whether, at all times, he was acting in that capacity,” ruled the HPARB.
In its analysis of Philip’s complaint, the Committee expressed two reasons for deciding to take no action.
The first was because, in the view of the Committee, Lee was "simply fulfilling his role as public official."
The committee went on to note that in this case, it appears Philip did not initially provide the patient names for the purpose of patient notification.
“Thus, the Committee does not have concerns that Lee’s conduct was not in keeping with expectations the College has of its members. On the contrary, had Lee not issued the press release, ‘the public would have remained at risk,’” it said.
Secondly, the Committee did not share Philip’s concerns about Lee and remains of the view that “this is not the appropriate forum to undertake the review requested given that the complaint relates to the actions of a public official carried out in the course of his duties. For this reason, there is no reason for the Committee to take action against (Lee).”
PHILIP’S REACTION
Philip said he was not happy with the decision.
He provided the following statement:
The decision by HPARB that Dr. Lee was acting as a public official and not a medical doctor is discouraging especially when, during this recent COVID pandemic, political leaders have had to rely on the medical knowledge of these health officers to advise the public.
More importantly though, the decision highlights some of the issues that are dominating current events.
The board alludes to the powers afforded to Dr. Lee under the HPPA and yet ignore the most important and basic right under the HPPA for individuals under investigation. Every individual has the right to an appeal and is innocent until proven guilty.
A hearing was set for March 13, 2018 which SMDHU, presumably under the direction or with the blessing of Dr. Lee, circumvented, by going to the media without a decision by HPARB which resulted in irreparable financial and reputational harm.
Who is holding physicians in such a role accountable if the CPSO and HPARB claim that these venues are not the correct forum?
One cannot ignore the double standard at play here when HPARB clears Dr. Lee from this incident citing that the complaint at hand was vexatious, frivolous and/or moot, and yet when I similarly claimed that the complaint made against me was of a vexatious and frivolous nature my defence was easily dismissed.
A proper investigation into this matter would have revealed that SMHDU’s request for my patient list was to compare the names against their iPHIS database and not merely for patient notification.
There has never been a dentist in the province of Ontario that has been ordered to submit themselves to such a litmus test.
Why should I subject myself to this, knowing that the only intent of the health unit was to prove association and not causality.
This demonstrates the current discrepancy in policing and investigating standards that occurs for certain groups of people in our society.
