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Emergency room doctor successfully defends right to express opinion publicly

Updated: Nov 26, 2020

SYDNEY, NS: The Justice Centre for Constitutional Freedoms today announced that it has successfully defended a Nova Scotia emergency room physician, Dr. Chris Milburn, from professional discipline after a Complaint was filed by a group of activists who took exception to an opinion column he wrote in a local paper. A Summary of the Decision of the Investigation Committee of the College of Physicians and Surgeons of Nova Scotia was published on November 12, 2020.

Last year, on November 16, 2019, Dr. Milburn wrote an opinion piece for The Chronicle Herald. In the wake of two special constables being convicted of criminal negligence for the death of a drunk man in custody, Dr. Milburn expressed the opinion that, while police and jail guards should be held to a high standard, they should not be held to an impossible one. He noted the negative effects on already over-burdened emergency departments of having to provide “medical clearance” of some of the most “wild-behaving and impaired” people being brought in routinely by police and guards.

Dr. Milburn’s piece was read widely, and many people, both within and outside the medical profession, expressed support for his views both publicly and privately. A number of others spoke out against his views. Various letters to the editor were written which showed a split in public thinking on the matter – some were critical of what they perceived to be his dismissive attitude toward those with addiction issues; still others were grateful for his comments as being a breath of fresh air.

To respond to his critics, Dr. Milburn wrote a rebuttal piece on Nov. 27, 2019, in which he confirmed that he always provides appropriate care to any patient, ‘criminal’ or not, and noted the ‘soft bigotry of low expectations’ exhibited by one of his detractors, a criminal defence lawyer, in her article critiquing his opinion. Explained Dr. Milburn, “I believe that caring for someone means having high expectations and pushing them to do better. I have personally provided excellent care to some of the most notorious criminals in our country. I believe these people are human beings, flawed like the rest of us, who deserve medical care just like anyone else. And when I don’t have to give up my own physical safety or risk that of my staff to provide that care, I am more than willing to do so.”

A compilation of letters to the editor on Nov. 30, under the headline “Milburn op-eds stoke serious debate about personal responsibility”, showed the public appreciated the opportunity to discuss the issues, despite opinions being divided.

On January 17, 2020, a group of 14 activists, academics and doctors, led by a Halifax lawyer, filed a formal Complaint against Dr. Milburn with the College of Physicians and Surgeons of Nova Scotia, seeking to punish and threaten the livelihood of Dr. Milburn merely for expressing opinions with which they disagreed. They were not Dr. Milburn’s patients, nor had he had any prior interactions with these complainants. Several did not even reside in Cape Breton, where he practices medicine. The College has not permitted the Complaint to be publicized in its entirety.

The Justice Centre provided submissions to the College on Dr. Milburn’s behalf, defending the right of physicians to express their opinions on matters of policy in the public square and arguing that everyone is entitled to freedom of thought, belief, opinion and expression, as guaranteed by the Canadian Charter of Rights and Freedoms – including doctors. The Justice Centre noted that attempting to have a doctor professionally disciplined for his opinions and commentary on matters of public interest amounts to bullying and should not be encouraged by the College.

A better response to opposing or offensive views is to write a rebuttal piece, which was done by a few people including one of the complainants. “This is how ideas are presented, debated, dismissed, or affirmed in a free and functioning democracy – not attacking the speaker and attempting to destroy their livelihood or cause them to be otherwise disciplined by their professional regulator,” states Justice Centre lawyer Lisa Bildy.

The College appointed an Investigation Committee, which reviewed the submissions and questioned Dr. Milburn in the presence of his lawyer from the Justice Centre. In its Decision, dated November 4, 2020, the Committee dismissed the complaint against him and stated that it “does not find that Dr. Milburn may have breached the standards of professional ethics or practice and therefore a caution is not appropriate.”

While this was an excellent result for Dr. Milburn, the Decision was unfortunately not a ringing endorsement of free speech: “A dismissal of this complaint should not be read as the Committee’s endorsement of Dr. Milburn’s public utterances…Individuals who identify themselves as physicians when speaking out on matters in a public way, must recognize the impact of their words and take into account the various sensitivities at play in the matters under discussion,” the Committee wrote.

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