In Case You Missed It: Top Legal Pandemic Issues for Health Care Providers for the Fall of 2021

  • January 05, 2022
  • Nicole Fielding - Koziebrocki Law

Jennifer O’Dell of Lerners LLP and Lidiya Yermakova of Lenczner Slaght LLP moderated the panel discussion with speakers Sari Feferman of Rosen Sunshine LLP, Anna Matas of Gillian Hnatiw & Co., and Meghan Cowan of Aird Berlis LLP. All addressed key issues and provided practical and up-to-date advice to legal professionals advising their clients on the challenges posed by COVID-19 pandemic.

Sari Feferman on the Use of Social Media by Health Professionals to Discuss Vaccines 

During the first part of the program, Sari Feferman spoke to attendees about the use of social media by health professionals to discuss vaccine-related sentiments. Sari’s discussion highlighted the importance of health professionals remaining mindful of their obligations and the applicable guidelines from health colleges surrounding advertising and posting online. Most regulatory health colleges view posting on social media to be a form of advertising. Generally, they require information posted on social media by health professionals to be accurate, factual, verifiable, comprehensible, dignified, in good taste and balanced in tone. Sari also referenced pre-pandemic examples of health colleges stepping in when members were posting online in both a personal and professional capacity. 

Before the pandemic, health professionals used social media to express positions on vaccines or vaccine resistance, and Colleges have offered guidance on this topic in the past. Sari noted the example of the College of Chiropractors of Ontario’s Professional Advisory on Vaccination and Immunization from March 2019, in which members were reminded not to publish information about vaccination on their websites or social media accounts, as it was not within their scope of practice to do so.

A College’s mandate is to protect the public, and this extends to anything that may impact or undermine public safety. Sari noted for attendees that COVID-19 was recognized as a global health risk, and the general sense is that vaccine hesitancy and resistance poses a significant risk to the public. Information spread by a member online that is scientifically false or beyond a member’s expertise will risk intervention by a College. 

The line for when something breaches a member’s obligations and/or justifies College intervention is not a bright one. General advice for health professionals would be to stay in line with Public Health messaging, however this advice may vary depending on the facts of the situation. Some of Ontario’s regulatory colleges have already intervened in matters involving posts made on social media by members related to COVID-19 vaccines. One example included a decision from the College of Physicians and Surgeons of Ontario (“CPSO”) to issue a caution to a physician who was providing unsupported statements that a COVID-19 vaccine is not necessary, on the basis that it posed a risk to the public to make these statements during a pandemic. Additionally, the College of Nurses of Ontario recently initiated an investigation surrounding a nurse’s posts online about vaccines being lethal and COVID-19 being a conspiracy. Further, the CPSO recently referred a physician with a large online following to the College’s Discipline Committee on allegations that he made misleading, incorrect or inflammatory statements online regarding the COVID-19 pandemic.

Legal professionals guiding health professionals on how to navigate their online presence should advise their clients that there is currently no clear or bright line on when a College will investigate social media posts. Health professionals should keep in mind their responsibility to convey information to the public that is factual and supported by evidence.