COVID misinformation leads to more professional misconduct for health practitioners
We have previously reported on decisions by the Health Practitioners Disciplinary Tribunal (the Tribunal) finding that a nurse who shared misinformation about the COVID-19 vaccine and public health response had committed professional misconduct. The Tribunal has now released a similar decision relating to a doctor. The decision demonstrates that, despite the general right to freedom of expression, practitioners can face professional consequences for making public statements related to health policy in their capacity as health professionals.
Facts
Dr Canaday made a series of public statements on the radio and in several seminars that were hosted online by “Voices For Freedom” which included:
Criticisms of the safety and effectiveness of the COVID-19 vaccine, such as describing it as an “experimental biological agent” and suggesting that it caused “magnetic phenomena”.
Advocating for alternative medicines and therapeutic treatments and suggesting that the efficacy of these medicines had been suppressed by Pfizer and various governments.
Criticisms of the NZ Government’s public health response to the COVID-19 pandemic, including characterising statements by the then-Minister of Health as “perverse”, “evil” and “straight out of the Soviet playbook” and comparing them to KGB (Soviet Secret Service) tactics.
Dr Canaday also spoke in a way that suggested he had the necessary respiratory expertise to comment on COVID-19, although he had not provided medical care of a respiratory nature to any COVID-19 patients.
Issues
Dr Canaday was charged by a Professional Conduct Committee (PCC) with professional misconduct. To succeed, the PCC needed to prove that Dr Canaday had acted within the scope of his medical practice in an improper, illegal, or unethical manner (malpractice), or had been negligent, or that his statements were likely to bring the medical profession into disrepute. The Tribunal also had to be satisfied that Dr Canaday’s actions were significant enough to warrant disciplinary sanction.
Was Dr Canaday acting within his practice?
The Tribunal found Dr Canaday was acting within his scope of practice in making these statements because he presented his advice as a doctor, and used his knowledge, skills, and competencies in offering that advice. He was effectively engaged in teaching in the community, as a doctor.
Freedom of expression
Dr Canaday argued that his right to freedom of expression was engaged, and would be unreasonably infringed on if a decision was entered against him. The Tribunal accepted that while medical practitioners are generally free to express controversial opinions on non-medical matters, on health-related issues, “with the privilege of registration [as a medical practitioner] comes certain responsibilities and sometimes limitations”. That because his audience – the general public – was more likely to attach more weight to his words due to his status of a medical practitioner. Protection of the public, and the standing of the profession, reasonably required some inhibition of practitioners’ freedom of expression in the context of teaching in the community in their professional capacity.
Findings of professional misconduct
The Tribunal considered that, while none of Dr Canaday’s statements amounted to malpractice or negligence, some of his statements were misconduct as they risked bringing the medical profession into disrepute. Namely, Dr Canaday had:
Not taken care to present statistics regarding fatalities after vaccination in a way that made clear that those deaths could necessarily be attributed to the vaccine. The Tribunal cited other instances of misconduct related to Dr Canaday’s presenting information in an emotive and insufficiently detailed manner, which risked misleading the public.
Said that doctors were being paid not to understand the vaccine, and that the Medical Council of New Zealand was telling doctors not to warn patients about the risk of vaccination. Taken together with his other statements, these statements undermined confidence in the profession. (In itself, criticism of the professional body would not have been misconducted).
Made unsubstantiated claims that other medicines capable of treating COVID-19 had been suppressed because of the government’s contract with the manufacturer of the vaccine, which was inflammatory and inaccurate.
Described the vaccine as an “experimental” biological agent, which was misleading and untrue. Dr Canaday’s words were likely to provoke an emotive response, and risked misleading the public.
Made comments about the vaccine containing compounds that could cause “magnetic phenomena” which lacked evidential foundation. Though Dr Canaday had said he was simply “wondering out loud” about the issue, the Tribunal considered that public education of the profession, as a doctor, was not the appropriate forum for that speculation.
The Tribunal also considered Dr Canaday had engaged in misconduct by giving a falsely exaggerated impression of his expertise in respiratory medicine. This risked further heightening the impact of his misleading advice, undermining confidence in the profession.
In this respect, the Tribunal found it significant that the statements were made during a global health emergency, when knowledge about COVID-19 and the effectiveness of the COVID-19 vaccine was rapidly evolving and changing. As such Dr Canaday’s actions, by undermining the ability of the profession to communicate that information to the public, were serious enough to warrant disciplinary sanction.
The Tribunal did not consider other statements by Dr Canaday suggesting the government was not providing the “full story”, and was “evil”, amounted to misconduct. Though disparaging, these statements did not amount to unprofessional criticism of other health practitioners or risk misleading the public in a way damaging to the standing of the profession.
Comment
Dr Canaday’s case forms part of a developing line of authority suggesting that health practitioners’ right to freedom of speech is subject to the responsibilities they take on as professionals to share medical information accurately and with regard to the potential inferences that their audiences might draw. It appears likely that health practitioners will continue to be held to a higher standard than laypeople are when publicly sharing health information, particularly when discussing emergent public health issues.
The case also provides insights for legal practitioners involved in professional disciplinary matters. The PCC failed to establish a number of Dr Canaday’s statements were misconduct due to its evidence failing to meet a high threshold of proof set by the Tribunal. This was due in part to the drafting of the charging documents, with the PCC having set itself the difficult task of proving, for example, that Dr Canaday’s scientific views were at odds with the general medical consensus, or that his sources were not generally accepted by the scientific community. The Tribunal also provided a general comment that, due to the potential for an audience to misunderstand a statement, a statement which is not actually misleading but only has the potential to mislead would generally not meet the test of professional misconduct. This case ought to be studied closely when drafting charging documents and evidence in future disciplinary proceedings to ensure that counsel do not set objectives that are too difficult to reach.
Article written by Joesph Corbett and Tim Bain
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