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Medical Law - Hospital Privileges. Abbott v. London Health Sciences Centre
In Abbott v. London Health Sciences Centre (Ont CA, 2025) the Ontario Court of Appeal dismissed an appeal, this brought against a dismissed JR, which was in turn brought against the respondent board when they "without affording the appellants a hearing, decided to (i) cease providing OR time to the appellants and reassign that time to “clinical priority tertiary, quaternary-level surgical cases”, and (ii) cancel the hospital privileges of the appellants and revoke their staff appointments related to using OR time for their private practice patients", under s. 44 ['Ceasing to operate or provide services'] of the Public Hospitals Act.
Here the court considers (and illustrates in action) PHA provisions relating to hospital privilege practices by private practitioners:[4] Under s. 44 of the PHA, if a hospital’s board of directors determines that the hospital will cease to provide a “service”, it may revoke the appointment of any “physician” to the hospital’s staff and cancel their hospital privileges associated with the cancelled service. Section 44(3) of the PHA provides that certain decisions contemplated by s. 44 may be made without holding a hearing.
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[6] For the reasons that follow, I would dismiss the appeal. I reject the appellants’ arguments that the Board was obliged to hold a hearing on the question of whether s. 44 of the PHA was applicable, that the Board adopted an unreasonable interpretation of the PHA in characterizing the appellants’ use of OR time and resources for the treatment of their private practice patients as a “service” within the meaning of s. 44, and that it was unreasonable to view the appellants, who are dental surgeons, as coming within the reach of s. 44 of the PHA. Finally, since the Board was not required to hold a hearing, I reject the argument that the Divisional Court erred, in assessing whether the Board’s decision was reasonable, by not taking into account evidence provided by the appellants which was not considered by the Board.
II. THE CONTEXT
a. Background
[7] The appellants are dental surgeons certified as specialists in oral and maxillofacial surgery. They are partners in, and practice out of, the Interface Centre for Oral and Maxillofacial Surgery, a private dental clinic in Southwestern Ontario.
[8] LHSC is one of Canada’s largest acute-care teaching hospitals. It is governed by the PHA.
[9] For many years, the appellants and three other oral surgeons – referred to collectively as the “private practice oral surgeons”[1] – had access to OR time and resources at LHSC. The OR access allowed the appellants to perform oral surgery on patients of their private practice. The appellants each held appointments at, and were granted privileges by, LHSC, limited to providing these services.
[10] The OR time at LHSC was allocated to the appellants from the oral surgery division of LHSC’s Department of Dentistry. The oral surgery division was comprised of the private practice oral surgeons, who used the OR time exclusively for patients of their private practices, and other oral surgeons on staff at the LHSC.
[11] As a public hospital, LHSC is subject to a Hospital Service Accountability Agreement (“HSAA”) with Ontario Health, an agency created by the Government of Ontario to oversee health care planning and delivery across the province, including funding of the health care sector.
[12] The HSAA sets out how funding provided to the LHSC can be used and stipulates that funding may only be used to provide “Hospital Services”, defined as “the clinical services provided by [LHSC] and the operational activities that support those clinical services…”. The HSAA also requires LHSC to transition to the Wait Time Information System (the “WTIS”), which tracks patients waiting time for a specific procedure based on their defined priority level.
b. LHSC’s Office of Capacity Management’s Concerns About the Appellants’ OR Access
[13] LHSC’s Office of Capacity Management reviews its management accountabilities for funding under the HSAA to ensure that funding is only being used for Hospital Services that comply with the HSAA. As part of its review during 2023, it formed the view that the LHSC’s “practice of providing OR rooms to private practice oral surgeons was not in line with their obligations under the HSAA” and that this service needed to end. The Office of Capacity Management further “identified that OR time allocated to the Department of Dentistry was not being used as required by the LHSC OR policy”.
[14] On September 19, 2023, the private practice oral surgeons were informed that they would no longer be allocated OR time at the LHSC effective October 1, 2023.
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III. THE BOARD’S DECISION
[18] In November 2023, LHSC’s Strategic Redevelopment Committee (the “Committee”) recommended to the Board that LHSC (i) cease providing OR time to the private practice oral surgeons and reassign that time to “clinical priority tertiary, quaternary-level surgical cases”, and (ii) cancel the hospital privileges of the private practice oral surgeons and revoke their appointments to the extent their privileges were related to using OR time for their private practice patients. In the Committee’s view, the practice of allowing OR services through private practice oral surgeons was “misaligned with LHSC’s accountabilities under the HSAA, including with respect to clinical prioritization, including because [the private practice oral surgeons] do not use the WTIS.”
[19] The Committee’s recommendations to the Board were contained in a detailed Briefing Note (the “Briefing Note”). It provided background about the history of the issue, including that provided by the Office of Capacity Management. It did not purport to summarize the affidavits the appellants had provided. It then set out the Committee’s views supporting its recommendations.
[20] The Briefing Note explained that although permitting OR access to the private practice oral surgeons provided some benefits to the community, the benefits to LHSC were limited, and the OR time could be better utilized. According to the Briefing Note, unlike the staff oral surgeons, the private practice oral surgeons were not required to treat patients admitted to LHSC other than their own private practice patients or perform on-call shifts for the Department of Dentistry. They did not all hold academic appointments at the Schulich School of Medicine and Dentistry, with which LHSC was affiliated. They billed the Ontario Health Insurance Plan or their own patients directly for the procedures they conducted and did not reimburse LHSC for their use of the OR or its staff, equipment or supplies. Freeing up OR time previously assigned to private practice oral surgeons for reassignment to higher priority surgical cases could increase funding to LHSC as well as reduce the waiting time for those surgeries.
[21] Moreover, the Briefing Note stressed what it saw as a fundamental difference between the way patients were selected, booked and prioritized for surgery by the private practice oral surgeons, and the way that occurred for all other surgeries at LHSC. Patients were booked for surgery by the private practice oral surgeons inconsistently with the LHSC’s OR booking policy and “[t]he allocation of OR time to [private practice oral surgeons was] misaligned with LHSC’s accountabilities under the HSAA”. The private practice oral surgeons “do not maintain waitlists in the [WTIS], use or track patient clinical prioritization within the [WTIS] and schedule procedures accordingly. [Their] waitlists are not captured in [WTIS]…”. Thus, their patients “who have surgery in LHSC’s ORs are not clinically prioritized based on required provincial standards prior to their procedures being scheduled.” The private practice oral surgeons’ “use of LHSC’s ORs is an outlier. All other LHSC surgical service lines follow the standard pathway: community practitioners refer patients requiring hospital-based surgery to a hospital-based surgeon for assessment, clinical prioritization and scheduling.”
[22] The Briefing Note mentioned that the appellants had commenced legal proceedings challenging the cancellation of their OR time. It referred the Board to s. 44 of the PHA stating that:where a hospital board makes a decision to cease to provide a service, the board may revoke, cancel or substantially alter the hospital privileges of any physician which relate to the provision of that service, and revoke the appointment of that physician. The board is protected from liability where these decisions are made in good faith.
The Briefing Note also pointed out that adopting its recommendations would not harm patients of the private practice oral surgeons, as those requiring procedures in a hospital OR could be referred to the LHSC’s staff oral surgeons, as is the standard practice for other community-based practices. [23] The Board approved the Committee’s recommendations on November 29, 2023 but also determined that the private practice oral surgeons should receive 30 days’ notice of the cancellation of their privileges. At a December 20, 2023 Board meeting, January 31, 2024 was set as the date on which LSHC would cease providing “operating room services” for the private practice oral surgeons and as the date on which “the hospital privileges of [the private practice oral surgeons] that are related to the [private practice oral surgeons’] operating room services be cancelled” and “any dentist’s appointment [to the LHSC] be revoked”.
[24] The appellants were not provided with notice of the Board’s meetings or deliberations, and they were not given an opportunity to respond or provide input into the decision or the decision-making process. Although they had provided affidavits, the affidavits were not considered by the Board before making the impugned decision.
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a. The Legislative Scheme
[32] Broadly speaking, the appellants’ complaint is about a decision concerning their hospital appointments and privileges that was made without providing them with procedural fairness. And, broadly speaking, the PHA does not tolerate such a result. Sections 37(3) to (7) and ss. 38 to 43 of the PHA entitle a person aggrieved by a decision of a hospital about a staff appointment or hospital privileges to reasons for the decision, a hearing, and certain appeal rights.
[33] But where s. 44 of the PHA applies, the situation is different. This section becomes applicable in two circumstances.
[34] The first, contemplated by s. 44(1) of the PHA, is where a hospital board determines, or a Ministerial order requires, that a public hospital “cease to operate”. Where such a decision is made, s. 44(1.1) empowers the hospital’s board to revoke, alter or cancel appointments and hospital privileges of “any physician”.
[35] Section 44(1.2) of the PHA describes the other circumstance in which s. 44 is applicable, namely, where the board of a hospital determines, or a Ministerial order is made requiring, that the hospital will “cease to provide a service”. Section 44(1.2) provides that:Subsection (2) applies if,
(a) a board of a hospital determines that the hospital will cease to provide a service;
(a.1) the Minister responsible for the administration of the Connecting Care Act, 2019 has made an order under that Act that requires a hospital to cease to provide a service[.] [36] Section 44(2) of the PHA then provides for decisions about staff appointments and hospital privileges of “any physician”. It states:If one of the conditions set out in subsection (1.2) applies, the board of the hospital mentioned in that subsection may make any of the following decisions that the board considers necessary or advisable in order to implement the decision or requirement to cease to provide a service:
1. Refuse the application of any physician for appointment or reappointment to the medical staff of the hospital if the only hospital privileges to be attached to the appointment or reappointment relate to the provision of that service.
2. Refuse the application of any physician for a change in hospital privileges if the only privileges to be changed relate to the provision of that service.
3. Revoke the appointment of any physician if the only hospital privileges attached to the physician’s appointment relate to the provision of that service.
4. Cancel or substantially alter the hospital privileges of any physician which relate to the provision of that service. [37] Under s. 44(3) of the PHA, “the Board may make a decision under subsection [44](1) or (2) without holding a hearing”. Under s. 44(4) of the PHA, “[s]ubsections 37 (3) to (7) and sections 38 to 43 do not apply where the board makes a decision under subsection [44](1) or (2).”
[38] Section 44(5) of the PHA protects a corporation that owns or operates a hospital for any act done in good faith by its board in execution or intended execution of its authority under ss. 44(1) and (2).
[39] The PHA does not define “service” as it is used in s. 44. It does, however, define “physician”, another term used in that section, to mean “a member of the College of Physicians and Surgeons of Ontario or another prescribed person”: s.1 of the PHA (emphasis added).
[40] Section 32 of the PHA provides for the making of regulations on a variety of topics, including “prescribing persons for the purposes of the definition of a ‘physician’ in section 1”. The regulation under the PHA, the Hospital Management, R.R.O. 1990, Reg. 965, provides, subject to a non-applicable exception, that for the purposes of the PHA “‘physician’ includes a person who is exempted from subsections 9 (1) and (3) of the Medicine Act, 1991 [,S.O. 1991, c. 30]”: s. 1.1(1) of the Hospital Management.
[41] Subsections 9(1) and 9(3) of the Medicine Act address who may use the title, and hold themselves out as, among other things, a “surgeon”. Section 9(2) of the Medicine Act creates an exception from s. 9(1) for the use of the title of surgeon “by a member of the Royal College of Dental Surgeons of Ontario.”
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[59] The appellants’ argument that the no hearing provision in s. 44(3) did not apply to the threshold determination by the Board that LHSC would cease to provide a service is contradicted by the language of s. 44(3) itself. Section 44(3) of the PHA provides that “[t]he Board may make a decision under subsection (1) or (2) without holding a hearing unless a hearing is required by or under this Act.”
[60] By its own terms, s. 44(3) of the PHA is not limited to nullifying any obligation of the Board to hold a hearing for decisions to cancel privileges or revoke appointments under s. 44(2). It also applies to decisions under s. 44(1). The reference to subsection 44(1), in context, should be read to embrace ss. 44(1.1) and 44(1.2) of the PHA, the latter of which refers to the Board’s power to determine that the hospital will cease to provide a service. This is so, for two reasons.
[61] First, a reading of s. 44(3) of the PHA that excludes ss. 44(1.1) and (1.2) from its ambit creates an unlikely mismatch that the legislature could not have intended. Under that reading, the legislature exempted from the obligation to hold a hearing, decisions to close a hospital (under s. 44(1)), while not exempting from the obligation to hold a hearing, decisions about privileges and appointments that are taken under s. 44(1.1) to implement a hospital closing decision. And it would mean that a decision to cease to provide a service under s. 44(1.2) of the PHA – a less intrusive decision than to close a hospital – is not exempted from the obligation to hold a hearing, while decisions under s. 44(2) about staff appointments and privileges related to the cancelled service would be exempt from a hearing requirement. In other words, the context suggests that the reference, in s. 44(3) of the PHA, to s. 44(1) should be read to mean all of s. 44(1) including ss. 44(1.1) and (1.2).
[62] Second, this reading is consistent with the way s. 44(5) of the PHA has been interpreted. Sections 44(4) and (5), of the PHA, like s. 44(3) each refer to decisions under ss. 44(1) and (2). This court held, in Beattie v. Women’s College Hospital, 2018 ONCA 872, leave to appeal refused, [2018] S.C.C.A. No. 524, that s. 44(5) was applicable in a case where the hospital had decided to cease to provide a service under s. 44(1.2). At para. 8 of Beattie, the court stated that: “[t]he intention of s. 44(5) is clear. It precludes all proceedings for damages for acts done in good faith under ss. 44(1) and 44(2) by hospitals which close or cease to provide a service.”
[63] Accordingly, nothing in the text, context or purpose of s. 44(3) renders unreasonable the Board having addressed the “threshold” question of ceasing to provide a service without holding a hearing.
[64] Similarly, nothing in the text, context or purpose of s. 44(1.2) renders unreasonable the view that the Board, in terminating OR access of the private practice oral surgeons, was deciding that LHSC would “cease to provide a service” such that s. 44 applied. No case law or other authority required “service” to be restricted to an entire service in the sense of all dentistry or all oral surgery.[2] It was open to the Board to proceed based on an interpretation of the phrase that takes into account not only the ultimate treatment that a patient received (i.e., oral surgery) but also the way patients were selected for treatment (i.e., only patients of the private practice oral surgeons), and that their surgery was prioritized by an “outlier” method that did not use WTIS and was out of compliance with LHSC’s obligations under the HSAA and its own OR policy. The Board was entitled to contrast those features with the way all other surgical patients were referred and prioritized, to identify that the OR access of the private practice oral surgeons was a distinct service within the meaning of s. 44(1.2).
[65] Third, the Board did not adopt an unreasonable interpretation of s. 44(2) by applying it to the appellants. While s. 44(2) applies to physicians, both s. 1 and s. 32 of the PHA contemplate that an extended meaning may be given to that term by the regulations. As described above in paragraphs 39-41, the interaction of the regulations under the PHA and the Medicine Act extends the term “physician” to oral surgeons, such as the appellants. . Rogelstad v. Middlesex Health Alliance
In Rogelstad v. Middlesex Health Alliance (Ont Divisional Ct, 2025) the Divisional Court dismissed a doctor's appeal, here against an HPARB ruling that "upheld the suspension of his privileges and revocation of his hospital appointment on the basis that he failed to vaccinate against COVID-19 in compliance with the Middlesex Hospital Alliance’s mandatory vaccination policy".
Here the court illustrates local hospital-level steps taken in a COVID-related revocation of hospital privileges:[11] The POC unanimously supported a mandatory vaccination policy which was adopted by the MAC. The policy required everyone at the Hospital, including Dr. Rogelstad, to be fully vaccinated or to have a valid exemption. The policy stipulated that non-compliance could result in suspension or loss of privileges.
[12] Following announcement of the policy, Dr. Rogelstad wrote to the Hospital’s Chief of Staff indicating that he did not intend to receive the vaccination based on his view that it did not prevent transmission of the COVID-19 virus, and, in fact, increased the risk of infection for certain individuals. In response, the Chief advised him that his privileges would be suspended if he did not comply by November 29, 2021.
[13] Dr. Rogelstad failed to meet this deadline, and on November 30, 2021, he was notified that his privileges were suspended pursuant to Article 4.1(a) of the By-Laws. He was also provided notice of a MAC meeting on December 3, 2021 to consider making recommendations to the Hospital Board regarding the revocation of his appointment.
Medical Advisory Committee Recommendations
[14] Following its meetings held on December 3, 2021 and January 12, 2022, the MAC recommended that Dr. Rogelstad’s privileges continue to be suspended and that if he did not provide full proof of vaccination by January 31, 2022, his appointment at the Hospital would be revoked. Following the MAC recommendations, he requested a hearing before the Hospital’s Board of Directors.
MHA Board of Directors Decision – April 25, 2022
[15] The Hospital Board released its decision confirming the recommendations of the MAC on April 25, 2022. In reaching this conclusion, the Board relied on evidence provided by employees in the Hospital’s senior leadership, including its Chief of Staff, Chief of Medicine, and its Infection Prevention and Control Specialist, who testified in support of the mandatory vaccination policy and explained why it was adopted.
[16] The Hospital Board also heard from one expert witness, Dr. Dick Zoutman, who it qualified as a specialist in infectious disease. He testified that it was reasonable for the Hospital to require vaccination due to its high-risk patient population, noting that unvaccinated people have a higher likelihood of contracting and transmitting COVID-19. He also discussed various clinical studies demonstrating that the vaccines were safe for almost all demographics. On cross-examination, Dr. Zoutman conceded that he was not involved with the Hospital and was not familiar with its layout or the specific measures adopted there. He also conceded that he was “unaware of any evidence that anyone in particular will be safer if Dr. Rogelstad gets vaccinated”.
[17] Dr. Rogelstad challenged Dr. Zoutman’s evidence and testified that the Policy was out of step with current guidance from experts in the field. He characterized Dr. Zoutman’s evidence as “faulty and generalized”, especially with respect to the risks associated with the vaccine. He led evidence suggesting that anaphylaxis responses to the vaccine have been underreported and that there were further risks of myocarditis and pericarditis as well.
[18] The Hospital Board ultimately concluded that the mandatory Policy was reasonable, given the Hospital’s duty to provide a safe environment for its patients. It also referenced Directive #6 from Ontario’s Chief Medical Officer of Health, which required hospitals to implement vaccination policies and expressly permitted them to impose mandatory policies subject to certain exemptions.
[19] Given the reasonableness of the Policy, it further determined that permitting Dr. Rogelstad to continue practice would violate the By-Laws and Professional Staff Rules. On this basis, it confirmed that the suspension of his privileges and revocation of his hospital appointment would continue unless he provided proof of vaccination.
[20] Following the decision of the Hospital Board, Dr. Rogelstad requested a hearing before HPARB pursuant to section 41(1)(d) of the PHA.
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[38] As noted in the Decision, Dr. Rogelstad has a statutory right to reapply for privileges now or in the future and that is the proper course to follow if he wishes to challenge the current reasonableness of the Policy. It is not the role of HPARB or this Court to assume primary jurisdiction and decide whether privileges ought to be regranted now, in 2025. The issue this Court must determine is whether HPARB committed any palpable and overriding error or error of law in deciding to confirm the 2022 decision of the Hospital Board. At paras 21-29 the court reviews the HPARB hearing, reasoning and conclusions.
. Rogelstad v. Middlesex Health Alliance
In Rogelstad v. Middlesex Health Alliance (Ont Divisional Ct, 2025) the Divisional Court dismissed a doctor's appeal, here against an HPARB ruling that "upheld the suspension of his privileges and revocation of his hospital appointment on the basis that he failed to vaccinate against COVID-19 in compliance with the Middlesex Hospital Alliance’s mandatory vaccination policy".
Here the court sets out statutory provisions and one hospital's related by-laws regarding hospital privileges suspension and revocation:Statutory Background
[4] Under the Public Hospitals Act, R.S.O. 1990, c. P.40 (“PHA”), a hospital’s board of directors appoints physicians as members of their medical staff and may revoke or suspend these appointments pursuant to a recommendation of the Hospital’s Medical Advisory Committee (“MAC”) and the process set out in its By-laws.
Statutory Background
[5] The procedures for suspension and revocation of staff privileges at MHA are set out in Articles 3 and 4 of its Professional Staff By-Laws, dated May 30, 2012 (the “By-Laws”). Articles 3.1(a) and 4 set out the grounds that may give rise to mid-term action to suspend or revoke:ARTICLE 3. SUSPENSION AND REVOCATION OF PRIVILEGES
3.1 Mid-Term Action With Procedural Guidelines
(a) Mid-term action may be initiated wherever the Professional Staff member is alleged to have engaged in, made or exhibited acts, statements, demeanour or professional conduct, either within or outside of the Hospitals, and the same:
(i) exposes, or is reasonably likely to expose a patient, healthcare provider, employee or any other person in the Hospital to harm or injury;
(ii) is, or is reasonably likely to be, detrimental to patient or worker safety or to the delivery of quality patient care within the Hospitals;
(iii) is, or is reasonably likely to be, detrimental to Hospital operations;
(iv) is, or is reasonably likely to constitute, abuse;
(v) results in the imposition of sanctions by the applicable professional College; or (vi) is contrary to the By-Laws, the Professional Staff Rules and Regulations, the Public Hospitals Act, or any other relevant law or legislated requirement.
Article 4.1(a): Where the conduct, performance or competence of a Professional Staff member exposes, or is reasonably likely to expose a patient, health care provider, employee or any other person at the Hospital to harm or injury and immediate action must be taken to protect the patients and no less restrictive measure can be taken, the Chief of Staff may immediately and temporarily suspend the Professional Staff member’s privileges, pending a meeting of the Medical Advisory Committee and a hearing by the Board. [6] In the present case, the MHA relied on four of the enumerated grounds, namely that Dr. Rogelstad’s conduct in failing to comply with the vaccination policy:(a) exposed, or was reasonably likely to, expose a patient, healthcare provider, employee or any other person in the Hospital to harm or injury;
(b) was, or was reasonably likely to be, detrimental to patient or worker safety;
(c) was, or was reasonably likely to be, detrimental to Hospital operations; and,
(d) was contrary to the By-Laws and the Professional Staff Rules. [7] A physician against whom action is taken under Article 3 or 4 is entitled to a formal meeting before the MAC which makes a recommendation to the Hospital Board. A Hospital Board hearing is held if requested by the physician, and the Hospital Board may accept or reject the MAC’s recommendation. A decision of the Hospital Board can be appealed de novo to HPARB under s. 41 of the PHA. . Abbott v. London Health Sciences Centre
In Abbott v. London Health Sciences Centre (Div Court, 2024) the Divisional Court dismissed a JR, here where a hospital revoked "access to operating rooms" against several doctors.
Here the court discusses hospital privileges, here regarding 'ceasing to operate or provide services' [PHA 44] - and the processes used here:[18] The question before this court is whether the Hospital was making a decision under s. 44, for which no hearing is required, or more specifically, was the decision of the Board to revoke the Applicants’ hospital privileges a decision to cease a service so as to fall under s. 44 of the PHA?
Was the Hospital making a decision under s. 44?
[19] The Applicants submit that the Hospital was not making a decision to cease a service, but “merely revoking the individual ... OR access and professional staff privileges”, and therefore their decision is not one which would fall under s. 44 of the PHA. I disagree.
[20] The term “service” is not defined in the PHA.
[21] To understand the decision below, it is important to understand the circumstances under which the Board’s decision was made.
[22] [sic] created by the provincial Ministry of Health, charged with overseeing health care planning and delivery across the province, including management of funding in the health care sector. The HSAA is an agreement that sets out the terms and conditions under which LHSC The Hospital is subject to the HSAA with Ontario Health. Ontario Health is an agency receives funding from Ontario Health. A condition of the funding is that LHSC will only use the funding for providing “Hospital Services” in accordance with the terms of HSAA.
[23] A definition of “Hospital Services” is found in the 2023/2024 Hospital Service Accountability Agreement (“HSAA”) as follows:Hospital Services means the clinical services provided by the Hospital and the operational activities that support those clinical services, that are funded in whole or in part by the Funder, and includes the type, volume, frequency and availability of Hospital Services. [24] One of the terms in the HSAA is that the Hospital transition to the Wait Time Information System (the “WTIS”). The WTIS supports the management of surgical waitlists by tracking patients waiting for a specific procedure based on their defined priority level.
[25] The Office of Capacity Management at LHSC, through the Strategic Redevelopment Committee, was tasked with reviewing its management accountabilities for funding under the HSAA to ensure, among other things, that that their funding from Ontario Health was only being used for Hospital Services that complied with the terms set out in the HSAA.
[26] The Strategic Redevelopment Committee determined that the Hospital’s practice of providing OR rooms to private practice oral surgeons was not in line with their obligations under the HSAA and that this Hospital Service needed to end.
[27] The Committee recommended to the Hospital’s Board of Directors that LHSC cease providing operating room services to private practice oral surgeons. The Board approved the recommendation at a subsequent Board meeting. The decision to stop providing OR rooms to private practice oral surgeons is within the Board’s general mandate to run the Hospital.
[28] The private practice oral surgeons historically had access to 300 hours of LHSC OR resources, in which they could perform procedures on patients from their private practices, who either required OR services or who did not have insurance for routine/low acuity procedures.
[29] This program operated quite distinctly from other Hospital Services. This arrangement provided benefits to the community and the private practice oral surgeons, as it operated outside of the usual practices of the Hospital.
[30] Patients of the private practice oral surgeons were able to gain access to an OR without being accountable to the WTIS and without having to be assessed, prioritized, and scheduled through the WTIS, in essence jumping the queue. This service was not consistent with the HSAA.
[31] The Applicants had access to the ORs, staff, equipment and supplies with no reimbursement to the Hospital. The Applicants did not have to fulfill the requirements and obligations of Hospital staff. For example, they were not required to treat any LHSC patients. They did not have to do on-call shifts. They did not need to have academic .integration network and did not use the integrated system within the Hospital.
[32] The Hospital was offering a service to the community by permitting patients access to a hospital without having to follow the usual process and/or be subject to provincial wait times. It was a distinct service being provided to patients who were not hospital based but part of the community clinics.
[33] Further, through this program, the Applicants were able to bypass the usual obligations or costs to the Hospital. As set out in Beattie v. Women’s College Hospital, 2018 ONSC 1852, 46 C.C.E.L. (4th) 131, at para. 14, the Applicants only worked at the Hospital in this capacity and their privileges did not extend outside of this program.
[34] All other surgical service lines within LHSC receive referrals from community surgeons to clinically assess and accept patients that require hospital-based surgery. LHSC then uses an integrated program to track patients waiting for surgeries and to allocate surgeon time based on the specific patient’s defined WTIS priority level. Patients referred to LHSC are usually high-acuity patients who require treatments in a hospital and the standard practice is for them to be referred to a hospital-based surgeon. The patients using this service were not subject to the same requirements.
[35] For the reasons above, I would find that the decision of the Board is “a decision to cease a service” within the meaning of s. 44 of the PHA. As set out above, it was agreed by the parties that if it is determined that the decision falls under s. 44, no notice or hearing was required.
[36] As set out above, LHSC is accountable to use the WTIS to ensure equitable patient access to scarce OR resources. They are required to report on their performance as part of their agreement with Ontario Health. The Board acted in good faith, pursuant to s.44(5) of the PHA in cancelling the service, to meet their obligations under the HSAA.
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