Making schools safe spaces: The legal authority for school boards to enact masking policies

On April 19, the Thames Valley District School Board (TVDSB) passed a motion to require masking for all staff, students and visitors in TVDSB buildings. Motivated by a Public Health Ontario report that advised “temporary re-implementation of masking requirements indoors and improved air quality can reduce the risk of in-school transmission…,” the motion was primarily motivated by “staff absences, combined classes and school closures,” grounding it in concern for occupational health and safety.

Controversy quickly followed. The office of the TVDSB’s Director of Education sent a message to parents noting that masks were still only recommended and that, contrary to the motion, would not be required. Officials claimed guidance from the Ministry of Education prohibited the board from enacting such a mandate and that no enforcement mechanisms were available. A few days later, the Chair of the Board of Trustees sent another message to parents, this time indicating that masking was, in fact, required.

This is only the most recent confusion that has arisen regarding the authority for school boards to enact COVID-19 specific policies.

When Ontario’s government announced it was going to lift the mask mandate imposed by the Reopening Ontario Act, positioning it as another step in the province’s plan to “cautiously and gradually ease public health measures,” many parents and educators expressed concern about its effect in schools. And rightly so. Mere days after the mandate was lifted on March 21, Peter Juni, the former head of Ontario’s COVID-19 Science Table, noted that Ontario was clearly in the sixth wave of the pandemic, driven in part by the government’s so-called cautious and gradual plan.

In response, only one school board, Hamilton-Wentworth (HWDSB) acted. On March 16, the HWDSB passed an extension on the masking mandate, much to the ire of Minister of Education, Stephen Lecce, who wrote to the HWDSB on March 18 that it was expected that the board would lift the mask mandate. Moreover, it was reported that the ministry claimed that the “‘board has no legal authority to mandate masks’ in the absence of a directive from their local public health unit.”

Other boards, like Toronto (TDSB), sought permission from the province but were denied. Despite this, Ottawa-Carleton’s board passed a motion April 12 requiring masks, followed by the TVDSB.

The Education Act clearly gives boards the authority to enact policies aimed at promoting student well-being.

Yet confusion persists. Are school boards permitted to enact mask mandates?

The answer is clear: yes. The Education Act clearly gives boards the authority to enact policies aimed at promoting student well-being. And, no, boards do not require permission from a local public health unit (although a local public unit could impose a mask order). Indeed, prior to the Reopening Ontario Act, boards across the province were considering or in the process of enacting masking policies. This is not to say that the Ministry of Education is unable to direct boards or enact a policy – it is just not clear that this has, in fact, occurred.

Instead, what appears to be happening is that the Ministry of Education is attempting to govern by fiat – in short, telling local, autonomous boards that they are not permitted to exercise their lawful authority because, well, we say so.

This is an affront to the rule of law and undermines the democratic principles our dominion is founded upon.

Consider, for example, Premier Doug Ford’s criticism that school board members “aren’t medical experts” – since when has Doug listened to medical experts? – and that boards were expected to follow the direction of Ontario’s Chief Medical Officer of Health (CMOH), Kieran Moore. Nowhere in the Education Act is the CMOH mentioned, and this power for CMOHs to direct schools does not exist under the Health Protection and Promotion Act (HPPA). Indeed, the HPPA vests authority in local Medical Officers of Health (MOHs), and only provides powers for CMOHs to intervene if they are “of the opinion that a situation exists anywhere in Ontario that constitutes or may constitute a risk to the health of any person” (s. 77.1(1)). Then, and only then, does the CMOH have authority to act to “prevent, eliminate or decrease the risk.”

Nowhere is there any authority that requires school boards to follow the CMOH.

At least not until the Reopening Ontario Act. Through this legislation, the province was granted new powers, including the ability to issue orders and require compliance with the CMOH. It was under this Act that the provincial masking mandate was implemented. And it is this mandate that the Ministry of Education is opaquely referring to when it says boards do not have authority to enforce a mandate.

On March 9, Deputy Minister Nancy Naylor sent a memorandum to Directors of Education outlining the plans for the lifting of health and safety measures in schools. Specifically, the memo indicated “the province is returning schools to a more normal learning environment,” and outlined plans on many fronts, including, “In alignment with community masking requirements, masks will no longer be required for students, staff and visitors in schools, school board offices and on student transportation.” On March 11, Lecce stated, “School boards in this province are expected to implement this cautious plan.”

School boards were told they were expected to follow the plan to lift/ease the health and safety measures enacted under the Reopening Ontario Act, and that plan was followed.

However, it is an entirely different argument to say that boards cannot enact their own policies, including masking policies, or that they are required to follow the CMOH’s direction.

Section 169.1(1) of the Education Act imposes an obligation on boards, beginning with “Every board shall” – indicating there is a legal requirement. Among the many things a board shall do is “promote student achievement and well-being.”

The Act states the “purpose of education is to provide students with the opportunity to realize their potential and develop into highly skilled, knowledgeable, caring citizens who contribute to society.” It further notes that all involved in the education sector “have a role to play in enhancing achievement and well-being.” It is clear the Education Act contemplates education as going beyond scholastics, recognizing that “(a) strong public education system is the foundation of a prosperous, caring and civil society.” As the purpose of education is more than just ensuring scholastic excellence, it suggests a more holistic understanding of both “achievement” and “well-being.” Well-being is defined as “the state of being comfortable, healthy or happy.” Boards are thus charged with, among other things, promoting student health.

It is not only permissible that a board enact policies to promote the health of its students, it has a legal duty to do so.

The Act specifies that board members shall carry out their responsibilities in “a manner than assists the board in fulfilling its duties under this Act” – which would include the duty of the board to “promote student achievement and well-being” – and specifically indicates that a member of a board shall “maintain focus on student achievement and well-being.”

Thus, it is not only permissible that a board enact policies to promote the health of its students, it has a legal duty to do so. This does not mean that a board must enact a masking policy; it suggests instead that a board has the authority to enact policies related to student well-being. Once the policies/approaches have been decided, a board member shall “entrust the day-to-day management of the board to its staff through the board’s director of education.” This is where the controversy in the TVDSB arose: the director of education reinterpreted the board’s decision, rather than implementing it, contrary not only to his duties under the Education Act but also in violation of the TVDSB bylaws.

And there are other provisions under the Education Act that could be used to help enforce a mask mandate.

According to the Act, it is the duty of a principal to “maintain proper order and discipline in the school.” Indeed, the Act grants powers to principals to “direct a person to leave the school premises if the principal believes that the person is prohibited by regulation or under a board policy from being there.”

Principals are also specifically charged with protecting the health of students. It is the duty of a principal “to give assiduous attention to the health and comfort of the students …” (emphasis added). Importantly, given that COVID-19 is an airborne virus, this assiduous attention is to be given to, among other things, ventilation. Assiduous means that principals must give great care and perseverance to the comfort and health of students.

Moreover, principals have a duty “to refuse to admit to the school or classroom a person whose presence in the school or classroom would in the principal’s judgment be detrimental to the physical or mental well-being of the pupils.” While this grants discretion to principals, it is difficult to imagine that the presence of a communicable disease, one with potential long-term consequences, is not detrimental to the physical health of pupils. Certainly, the countless parents that have emailed principals and school boards vocalizing their concerns about COVID-19 transmission indicate there are genuine safety concerns at play.

Indeed, the Act also imposes a duty on principals to “report promptly to the board and to the medical officer of health when the principal has reason to suspect the existence of any communicable disease in the school.” Under this provision, I would imagine that principals are calling their respective medical officers of health daily; if they are not, they are in breach of this duty. Further, principals have the authority to “refuse admission to the school of any person who the principal believes is infected with or exposed to a communicable disease requiring an order under section 22 of the (HPPA) …” One could argue that if any section 22 order has been issued under the HPPA, this order elevates the disease, in this case COVID-19, to a status that warrants special consideration.

The duty of a principal is to ensure the well-being of students and to protect them from anything detrimental to their health.

The obligations imposed by the Act make it clear that the duty of a principal is to ensure the physical well-being of students and to protect them from anything detrimental to their health, with a particular focus on communicable diseases.

There have been some that have suggested, wrongly, that a board policy requiring masks may deny the right of a child to education. Requiring compliance with a lawfully enacted policy does not, de facto, deny a right to education if a child refuses to comply with that policy. It is no more denying a child the right to education if the child is prohibited from entering a school for not wearing a mask than prohibiting a child from entering the school for not following other board policies. Moreover, the failure to provide a safe and inclusive space for all by not implementing masking policies effectively denies children unable to attend school due to safety concerns the same right. The board has a duty to ensure a positive school climate inclusive of all pupils, including those with a disability – how is a school inclusive of those with disabilities if they are unable to attend without, literally, risking contracting a virus that may prove deadly?

So why would the Ministry of Education suggest that boards cannot impose mask mandates?

This appears to be government overreach. The Ontario government has done something similar with MOHs, indicating that they must follow the lead of the CMOH, even though no such requirement exists in law.

To be sure, the ministry could direct school boards – and there are several avenues for this. For one, the Education Act allows regulations to be made “prescribing, respecting and governing the duties of the board.” However, there is a specific process that must be followed, including consultations and notice to the public. The duties of the board cannot be changed over phone calls or through memos.

The minister and ministry also have powers to issue policy directives. The ministry sets out direction and expectations of boards through Policy/Program Memoranda, a complete list of which can be found here. Note the absence of COVID-19 instructions.

The compliance that Lecce demands, that schools remove the masking mandates imposed under the Reopening Ontario Act, has occurred. When the province decided to remove the mask mandate in Ontario on March 21, school boards could no longer rely on the masking mandate under the Reopening Ontario Act.

That, however, does not in any way nullify their duties and powers under the Education Act.

I believe in public education and public health. It is not the aim of my advocacy to cause harm to those institutions that are intended to provide protection. Schools are supposed to be safe; public health is supposed to protect the community.

However, should school boards forgo their duty to protect the well-being of students and to ensure student safety, should principals not ensure that assiduous attention is given to the health of students, the next step that may be needed is to initiate legal actions to hold these boards to account.

For the time being, the appeal is for boards, vested with statutory authority, to fulfill the duties imposed on them, and to comply not with the opaque and ungrounded directives from a government that rules by fiat.

In so doing, boards will not only protect students, but will remind Ontarians of the importance of local autonomy and of upholding the rule of law at a time when our democratic institutions are under threat.

The comments section is closed.

  • Jacob says:

    Dear Steven,

    I’m responding here as the site doesn’t allow a response below. It’ll be quick. I’ve learned long ago that there really is no point in having a debate with someone who is prescient. You seem to think you can tell me my motivations or thoughts, inferring your own conclusions about the sincerity of my thanking you for the engagement. I can disagree with you – even think some of your points are asinine – and still be grateful for you engaging (I did publish with a site geared towards debate). I’ve worked in public health for a while – when you seek to regulate food and alcohol, you get used to people not agreeing. Somehow, you are able to come to a conclusion that, frankly, is mere conjecture on your part. A telling move for someone claiming to be concerned about evidence. You find the conclusions you want.

    This is affirmed by your dismissal of Public Health Ontario. It’s mandate is scientific and technical advice. Importantly, for this discussion, it provides advice to the Ontario government. Moreover, had you looked at the report you would have been able to identify the evidence they rely on. You can raise issues with the evidence they rely on, but instead you just call public health “authorities”. You claim I haven’t engaged in good faith, but then dismiss the discussion of evidence by a credible group.

    Of course, the likes of me can’t possibly understand public health or policy making in this space as I’ve never worked in an ER.

    So, I’ll move along and wait for you to, in the absence of any evidence and based purely on an attempt to frame the discussion in a particular way, you tell me how I feel today.

    Best (wait, do I mean that? I’ll wait for you to tell me),

    • Jacob says:

      For those that read comments, just noted Steven’s penchant to retweet Great Barrington Declaration nonsense. Not at all surprised. Wonder if he’s read the evidence that suggests had the “let them die, pro-eugenics” GBD approaches been adopted that, unsurprisingly, they wouldn’t have worked.

      I know people that claim to have evidence to support their belief in God. Dogmatic approaches are never very helpful in the end.

  • curtis says:

    since masks have been proven to be only 10% effective by a university of waterloo study you are forcing students to wear a 90% defective device .. The virus is also showing signs of waning in strength.. Doesn’t sound like a good idea to force people to wear something so inadequate. No scientific proof supports wearing masks. Even the original pandemic plan states healthy people wearing masks is next to useless.. Look up the document.. It is close to 600 pages long.

    • Jacob Shelley says:

      Hi Curtis,
      Best to link to studies you refer to – helps identify the source and allows the reader to identify.

      Also, a minor point, but the statement “no scientific proof supports wearing masks” is pretty easily defeated. Watch – read this: https://www.cdc.gov/mmwr/volumes/71/wr/mm7106e1.htm.

      There can be disagreement – and there are many studies, not all of the same quality, not all measuring the same things – but grandiose statements don’t really help with advancing the discussion. And they are really easy to knock down.

      By the way, this is but one of many studies that do support masks – so there’s also that (although I just need one to prove your claim wrong).


      • curtis collins says:

        you need better information and should listen to professionals who also state masks are ineffective. Try reading the original pandemic plan which i am surprised you are not aware of. Try google and type original pandemic plan canada.. 2006. This document was made by at least 36 health care professionals at that time and Dr. Teresa Tam directed it. Article 13 2.6 clearly states “There is no evidence the use of masks in general public settings will be protective when the virus is circulating widely in the community” Type university of waterloo mask study kw record aug 19, 2021. Try to be concerned about the people and not be so focused on a waning virus that will be with us for years to come. What do you care about the mental health of people that the government is realizing has been greatly affected.? Your opinions are just that, only your opinions.

    • Jacob Shelley says:

      Dear Curtis,

      Please provide a link to the study. It’s much easier for a reader to follow the argument when you direct them to the papers. Just a tip.

      Additionally, usually advisable to avoid statements like “No scientific proof supports wearing masks.” I can discredit this statement quite easily. Take a look at this: https://www.medrxiv.org/content/10.1101/2022.04.04.22272833v1.full. Statement is no longer true.

      Pandemic plans at the start didn’t think the virus was airborne, by the way – science evolves. As the science evolved, our understanding of how to prevent evolved with it. 600 pages! Who has the time for that when it’s completely unnecessary!

      Thanks for chiming in.

      • Jacob says:

        Whoops, I didn’t think my original comment got posted. 2 for 1, Curtis! It’s a deal for you. You can evaluate my claims twice and decide whether to respond (unless Healthy Debate notices the duplication and erases it). We all make mistakes – like the claim that there is no science to support masks – but we can learn from them. That’s the beauty of learning. Always room to improve.

    • curtis collins says:

      oh and i forgot to mention… People wearing masks are still getting covid… Do you need more proof that masks don’t work! Also peculiar is i have never worn a mask and i’ve never had covid. I have been to rallies of thousands, attended church with 150 people, shopped in malls, been jammed in vehicles with 20 people, ridden buses and attended many public gatherings. The decision to wear a mask must be a personal choice, not dictated by authorities.

      • Jacob says:

        Dear Curtis,

        First, I do talk to experts. Every day almost. When was the last time you actually talked to an expert?

        As for the pandemic plan – it’s not that I’m unaware, it’s just that it’s not a document that’s particularly useful now, given that science evolves. If you talked to experts, you might know that. Evidence changes. That that basic fact evades you is telling. When I used your google suggestion, this was the first google hit: https://uwaterloo.ca/news/media/study-supports-widespread-use-better-masks-curb-covid-19. Whoops, is that what you meant? Also, best to read the study not the Record. That might be the difference here – not only are you not talking to experts, you’re not reading studies, but news reports about studies. It’s like reading about a Leafs game in the paper and claiming you watched the game.

        It’s interesting you say to be concerned about people, yet you’re clearly concerned about wearing a mask and not the fact that failure to wear a mask puts people at risk. You seem very confused, to be honest.

        As for not wearing a mask yourself, not a super smart idea. I think I might know who “Curtis” is here, actually, based on your comments. Not entirely surprised. Either way, both Curtises clearly aren’t very bright.

        Hope you stay safe, despite your foolishness and confused rant.

  • Dr Brian Schroeder says:

    I have to agree completely with Dr Manduca and Dr Roedde. Let’s stop making safety and health care decisions based on political power games and media shaped beliefs, and rely instead on published research.Let’s truly put the best interests of the children first, relying on best available SCIENCE, and quit using that facade to promote our own preferred narrative.

  • Rickk says:

    We’ve been told to follow the science not scientism as school boards are attempting to promote.
    Masks do NOTHING except perpetuate fear and give a false sense of protection.
    One cannot rely on these latest ‘studies’ as they were conducted under an overwhelming umbrella of political narrative. Simply go back to any study prior to 2019 and review the conclusions for surgical and cloth masks and their complete ineffectiveness for protection against aerosolized airborne teeny tiny viruses. Masks-wearing must be left up to the individual (regardless of effectiveness) not mandated by government or their proxies.

    • Jacob Shelley says:

      Hi Rick,
      What a strange perspective – follow the science, but not that science!

      Good science doesn’t have a political narrative that drives it – even though it may (and always is) conducted within political arenas.

      Saying to follow the science, but only the science you think comes to the right conclusion, isn’t following the science.

      But we agree: follow the science. But policy does not, and cannot, always follow the science, particularly when the science is ongoing. The precautionary principle is an important tool to ensure we provide maximal protection while we get the science right.

      Follow the science, indeed – but that doesn’t mean follow the science that Rickk gives his stamp of approval for!
      Thanks for engaging,

      • Stephen Roedde MD CCFP (EM) (retired) says:

        Jacob. I have asked you several times… where is the evidence?
        You posted a document from public health… used to support their policies Some use “authorities” to back them up… but others require scientific evidence. As I have repeatedly stated.. masks are therapeutic interventions, and require RCT’s. They have been done. Two of them. Look up the results. Learn something and stop the sarcasm. You are a fine piece of work. You have failed to engage with me on the basis of good faith discussions of evidence, but in the past, are close to abusive to others. Healthy debate and your employer can do better! At least you haven’t pivoted here to accusations of murder as you did on twitter.

  • Stephen Roedde says:

    Well stated Patrick!
    I concur that schools need to place more emphasis on teaching about the hierarchy of evidence, and provide students with the skills required to differentiate evidence from belief. Some teachers are doing this, but few have the skills themselves.

    • Jacob Shelley says:

      You’re back – I’d suggest you look into the hierarchy of evidence as well – but look beyond the picture and try to understand what different layers of evidence can accomplish and what it can be used for. Also consider what the layers of evidence cannot do.

      The parachute RCT remains open. Perhaps we need one for seatbelts too. Maybe lifejackets. How about stop signs?

      • Stephen Roedde MD CCFP (EM) (retired) says:

        Yes I’m back. I taught t evidence based medicine for 25 years at the postgraduate level for many years…as well as leading EBM workshops at McMaster University. I don’t needed lectures on the hierarchy of evidence from the likes of you. You have a belief… about efficacy… and aspirations that eventually your belief will be supported with evidence… but you do not have it currently. Stop the ignorant comments to people who disagree with you opinion. Masks in children, with uncertainty regarding both risks and benefits are not any of the things you listed. The parachute comment was typically ignorant of you. … although, I suspect that for all of the three items… there is an evidence base, its not my wheelhouse… and I’m happy to wear my seatbelt, will refrain from parachuting as I’m not much of a risk taker, and wear a lifejacket when paddling in whitewater… but not always in a boat.

  • Dr Patrick Manduca says:

    In the absence of any strong evidence (both RCTs both showed negligible effectiveness) that masks work to limit the spread of viral infections – and there is strong evidence that masks can harm students especially younger ones – why is this being debated at all? Perhaps principals can promote health and well being by educating students that the masks do not provide protection and assuring them that they will almost never experience a severe infection. (Ref: Swedish and German studies as well as John Hopkins review etc etc )

    • Jacob Shelley says:

      Dear D. Manduca,

      In the absence of evidence, the precautionary principle should be applied.

      Perhaps principals can inform students about the risks of long-covid, which is not dependent upon severe infection, just infection, while they are at it. I’ll wait to see how you respond to this – perhaps you will reveal the tendency of some to cherry-pick science to fit their needs.


      ps: given your call for RCTs, I assume you simply forgot to include a reference to the RCT that showed the harm to students outweighed the benefit. This is just a review of the evidence you suggests exists for harms, but readers can look into the RCTs on point to support your claims: https://www.mcgill.ca/oss/article/covid-19-health-and-nutrition/masked-kids-are-alright#:~:text=The%20other%20claims%20of%20physical,which%20is%20a%20complete%20canard.

      • Stephen Roedde MD CCFP (EM) (retired) says:

        “Perhaps principals can inform students about the risks of long-covid, which is not dependent upon severe infection, just infection, while they are at it. I’ll wait to see how you respond to this – perhaps you will reveal the tendency of some to cherry-pick science to fit their need”…

        Which brings us back to evidence . you seem to be playing a game Jacob.

        What evidence do you have that forcing children wearing masks in schools will prevent long COVID? Are you not paying attention? We will ALL get COVID. Most already have contracted it. One can delay things …as China has done… or as we did to allow the miracle of vaccines to mostly mitigate the risks. It’s not a zero risk life… and it’s impossible to mitigate every risk to zero… but you seem stuck… really, really stuck.

  • Stephen Roedde MD CCFP (EM) (retired) says:

    Lots of legal back and forth in this piece. Lost in the noise of the article, is the science that would lend support tonschollboards deciding to override recommendations of the MOH and government of the day. . There are exactly 2 randomized controlled trials regarding masks to prevent COVID. One negative, one demonstrating a small, clinically questionable effect of surgical (not cloth) masks. Thats it. Two years into this pandemic. A massive failure by the WHO/CDC/NIH and Health Canada. Those who say that masks protect in significant ways against COVID, are expressing belief, not evidence, and have no credible data beyond what I have stated.
    This includes the author of this piece. Masks are a medical intervention. As such they require appropriate study. Substituting inferior observational data because the intervention failed in RCT’s is an old game… played by big Pharma in the past. Sorry not good enough.
    There are known educational harms with masks, inability to read emotional expressions, inability so see lips move with speaking, likely impaired speech development in the very young… Those most at risk of impaired learning… face the greatest potential harm. Educators and ethicists should have concerns about these…
    As always, well intentioned, petty tyrants want to impose their will… without any good science to back them up. Virtue signalling about doing so to protect children is getting tiresome. It’s also disingenuous and dishonest.

    75% of American kids under 17 have already had COVID… we have no good measures in Canada because of Public Health and Health Canada failure to publish up to date, age-stratified, serological data.

    When exactly will the “zero COVID” zealots realize that there is nowhere to hide. We will all get COVID 19 (or be exposed). Vaccines have largely protected the old and metabolically unhealthy who are most at risk. Some will still get ill and die. Nearly all old like me, as well as the metabolically unhealthy. A few with severe immune compromise… who are at risk from a multitude of infections entities… and will continue to be.

    Let it go. It’s been a destabilizing and divisive two and a half years. Some seem to have developed unmanageable anxiety about contagion. I encourage them to get medical help. Others appear to have enjoyed the power they get imposing rules and behaviours on others… while virtue-signalling that’s its to “protect the vulnerable”… when it’s not.

    • Dr Patrick Manduca says:

      Dr Roedde:
      Well stated and I absolutely agree.

    • Jacob Shelley says:


      For someone decrying the science in my article, you are pretty fast and loose with scientific evidence.

      Almost as if you don’t actually care about evidence, but outcomes. You’ve suggested I’m a COVID zero zealot. Nope. Just a public health scholar who works towards protection – and in the face of uncertain evidence, the precautionary principle ought to be applied. You say as much yourself – we don’t have great evidence (although it’s much better than your attempt to obfuscate here suggests), which would justify adoption of precaution whilst in the midst of a global pandemic (unless you also don’t think that’s real either ….).

      Relying on RCTs is a stupid comment, to be frank. We don’t have RCTS for many public health interventions – nor do we need to have them. Borrowing from my friend Prof. Attaran, perhaps you’d like to volunteer to do an RCT on the effectiveness of parachutes. You won’t know whether you’re in the placebo group – but in the name of science, surely you would not object. RCTs have a place, but they are one form of evidence. I’m willing to wager you have given much medical advice to patients that did not have the backing of RCTs. Your comment reveals your ignorance about evidence – and, more specifically, the evidence required to support policy decisions.

      Thanks for reminding readers that MDs are not scientists.

      Besides, here, if you read with a critical and discerning mind, you’d note that the point of the argument is not that Boards must implement mask mandates (indeed, I do say: “This does not mean that a board must enact a masking policy; it suggests instead that a board has the authority to enact policies related to student well-being.”), but rather dispel the argument that Boards lack the authority. I’m in favour of masks, but the legal back and forth is because this is legal argument about what Boards can do. Your inability to accurately frame my argument is a further indication to me that your judgment is questionable.

      Thanks for engaging.

      • Stephen Roedde MD CCFP (EM) (retired) says:

        “Almost as if you don’t actually care about evidence, but outcomes”. Yes. It’s a basic principle of EBM. One has an intervention that one believes might be useful, one designs a study in order to test to see if it alters … outcomes. That is what science (and medicine..and public health… is about). As I expressed with your past piece on COVID your opinion regarding the failure of the current MOH… medicine has gone far wrong when we relied on low standards of evidence for therapeutic interventions… including pharmaceuticals, surgery cancer screening and non- pharmaceutical interventions. In all of those cases… those advocating for them argued as you have “it’s obvious”… but were wrong. We mostly learned from these errors… but some have not. Some seem to think that making such a proclamation is sufficient… I respectfully disagree.

        Your comment about the evidence for masks and equating it with parachutes is ignorant, disrespectful,
        disingenuous, and inappropriate. In my view it falls below the standards of “healthy Debate community guidelines. Mandated masks for children in schools are not parachutes, and you know it!

        As always, policy-makers take the best data at hand and apply values, which include emotional responses, other risk benefit outcomes, as well as financial and opportunity costs. Many just fall back on how everyone must apply the “precautionary principle” as if the statement speaks for itself.
        As an example, (which I used in my reply to your last piece), we know that elevated crossings can decrease auto-train crashes to zero (the extreme “precautionary principle” advocated by the author). However, construction of these on every road-rail crossing in the country is neither affordable nor practical. The opportunity costs are overwhelming. Policy choices reflect this. Masks for children, the group at lowest (but not zero), risk of adverse outcomes, would have the smallest potential benefits (because the absolute risk reduction for adverse outcomes (if they existed), would be much smaller for them than for an immune-compromised old man like me. As before, you fail to engage on the basis of evidence… but rater to insults sarcasm and scorn.

        As to my medical practice, as an ER physician, I have more experience making terribly difficult decisions in the face of great uncertainty than you ever will. This applies to both a working diagnosis and management choices… under great time pressure. Indeed many choices lack the best evidence… but when it exists… I did not ignore it. When there was uncertainty… I did my very best to frame the available evidence… and let the patient decide (if they were alert and capable). Nearly always they were willing to take more risks than I was (on their behalf). Indeed, I’m not much of an authoritarian. Others, are different.

        “Thanks for reminding readers that MDs are not scientists.” was also an inappropriate comment I believe falls below the standards of the Healthy Debate community standards. We have a difference of opinion on policy… and apparently the evidence that guides these policies, but it remains unclear if you disagree on the basis of a different interpretation of the best evidence available… or whether you are just pretending to know things you do not know. You did not respond to my good faith queries on your last article… nor, frankly on this one.

        This is not the beginning of the pandemic, where fear and uncertainty prevailed, and where most of us were more than willing to take a flyer on therapies and social controls with limited evidence. Some still seem to think that we should continue to do so. I’m here to state clearly that … I disagree.

        You worked hard on your article… I’m sorry I don’t have much interest in your legal arguments… but I do have an interest in your beliefs your apparent authoritarian nature and lack of supporting evidence.

        I read the piece… but indeed did get “stuck’ on the false premise on which it was based. I don’t have much interest in the legal arguments you put forward… but did note that you appeared to be suggesting that school principals disregard advice put forward by public health officials… this seems an odd position for someone who has an interest in both law..and medical ethics.

        As for “Your comment reveals your ignorance about evidence – and, more specifically, the evidence required to support policy decisions.”. I taught evidence based medicine for most of my career…as well as the EBM workshops at McMaster…. nice try. I have a different threshold… because I know of the harms that have accrued… I started my medical career when EBM was in it’s infancy… and lived through many of the sometimes catastrophic errors and waste that resulted when physicians accepted inferior evidence. I worked hard to ensure the medical students and residents I taught… learned the history, and the reasons we have the approaches we do. This in addition to the nuts and bolts of study design and interpretation. So yes. I stand by my position there IS a hierarchy of evidence , continue to maintain that inferior study designs, because of problems controlling for bias and confounding variables… do not trump the results of well conducted experiments. Unapologetic on that.

        Lastly, your Cheshire Cat “thanks for engaging” comment speaks to your personality issues. We both know you mean nothing of the kind. You appear to dislike push-back. You seem a nasty and disagreeable fellow. At least this time you engaged with me, in your usual sarcastic and dishonest fashion… rather than just making semi-abusive sarcastic comments to others. I think I know you better than you know yourself.

        You do not appear to be a man of good faith. We both know it.

        I will continue to engage…

    • kevin raposo says:

      Thank you. Why was fear constantly pushed and continuously pushed. Promote health and love. I say thank you for both.


Jacob J. Shelley


Dr. Jacob Shelley is an Associate Professor jointly appointed to the Faculty of Law and School of Health Studies, Faculty of Health Sciences, at Western University. He is also the Director of the Health Ethics, Law & Policy (HELP) Lab. He has a doctorate in law (SJD) from the University of Toronto and is an editor of Public Health Law & Policy in Canada.


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