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Medical - Public Hospitals Act

. Tenn-Lyn v. Mackenzie Health

In Tenn-Lyn v. Mackenzie Health (Div Court, 2023) the Divisional Court considered an appeal from an emergency room physician [under s.43(1) of the Public Hospitals Act] of an HPARB decision which affirmed the decision of the hospital to not renew their hospital credentials (aka 'privileges').

These quotes exemplify a hospital 'credentials' system - governed by the Public Hospitals Act, its regulations and hospital by-laws:
[48] Hospital boards appoint physicians to the medical staff and may revoke or suspend their appointments pursuant to a recommendation of the Medical Advisory Committee and the Hospital’s By-law.[4] [Public Hospitals Act, RSO 1990, c. P. 40, ss. 12, 35 – 43; Hospital Management Regulation, RRO 1990, Reg. 965, s 4(1), s. 7(1) and (2)]

[49] Under the PHA, physician appointments are for a one-year term.[5] [Public Hospitals Act, RSO 1990, c. P. 40, ss. 37(2)] A hospital’s by-laws establish the specific requirements and procedures for physicians to apply annually for reappointment to the medical staff and their associated requests for privileges. The Hospital’s Professional Staff By-Law sets out the criteria for reappointment, including:
. the applicant has conducted himself or herself in compliance with the By-law, the Hospital’s values, Rules and Regulations, and Policies;[6]

. the applicant must have a demonstrated ability to work and communicate with, and relate to, others in a co-operative, collegial and professional manner;[7] and

. the applicant must have a demonstrated ability to communicate with, and relate appropriately to, patients and patients’ relatives and/or substitute decision makers.[8]
[50] Section 5.2 of the By-law provides that the Board may, at any time, revoke or suspend any Professional staff member’s appointment. Section 5.4 provides that the CEO, Chief of Staff, or Chief of a Department, may recommend to the MAC that any member’s privileges be restricted, suspended or revoked, where in their opinion the member’s conduct, performance or competence:
(a) fails to meet or comply with the criteria for annual reappointment; or

(b) exposes or is reasonably likely to expose any patient, health care provider, employee or any other person at the Hospital to harm or injury; or

(c) is or is reasonably likely to be, detrimental to patient safety or to the delivery of quality patient care within the Hospital or impact negatively on the operations or the Hospital; or

(d) fails to comply with the Hospital’s by-laws, Rules and Regulations, or Policies, the Public Hospitals Act or any relevant law.[9]
[51] Section 5.3 further provides that the CEO, the Chief of Staff, or the Chief of a Department may temporarily restrict or suspend any Professional Staff member’s privileges on an immediate basis where in their opinion the member’s conduct, performance or competence (a) exposes or is reasonably likely to expose any patient, health care provider, employee or another person at the Hospital to harm or injury; or (b) is or is reasonably likely to be detrimental to patient safety or to the delivery of quality patient care within the Hospital, and immediate action must be taken to protect patients, healthcare providers, employees or any other person at the Hospital from harm or injury.

[52] The physician can request a Board hearing and the Board’s decision can be appealed to HPARB. HPARB’s authority is set out in section 41(1)(5) of the PHA: HPARB may confirm the Board decision where it was made in accordance with the PHA, the regulations, and the by-laws.[10]
. Shukla v. Board of Directors, Health Sciences North

In Shukla v. Board of Directors, Health Sciences North (Div Court, 2023) the Divisional Court cited a variation in the RJR-MacDonald interlocutory injunction test, here where a 'mandatory' stay-injunction was sought to reinstate a doctor's hospital privileges:
[23] The first branch of the modified RJR-MacDonald test, found in R. v. Canadian Broadcasting Corp., 2018 SCC 5, [2018] 1 S.C.R. 196 at para. 15 [“CBC”] is a strong prima facie case. The burden is on the Applicant to show a case of such merit, on the law and on the evidence, that it is very likely to succeed at trial”: CBC at para. 15. In CBC, the Supreme Court modified the former “serious issue to be tried” standard in cases where a mandatory interlocutory injunction is sought, in part because such an order directs the respondent to undertake a positive course of action, such restoring the status quo, pending the proceeding to obtain the restorative relief sought.

....

[31] Irreparable harm seeks to discover “whether a refusal to grant relief could so adversely affect the Applicants’ own interests that the harm could not be remedied if the eventual decision on the merits does not accord with the result of the interlocutory application”: See RJR-MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311 at para. 63. Irreparable harm refers to the nature of the harm, not the magnitude. The nature of the harm must be such that it cannot be quantified in monetary terms or cannot be cured: RJR-MacDonald at para. 64.

....

[34] In Watts v. Clinton Public Hospital (2005), 206 A.C.W.S. (3d) 830, a senior physician without any community practice was able to establish irreparable harm to his reputation and ability to practice attendant on the revocation of his hospital privileges, which the court reinstated. In Sazant v. College of Physicians & Surgeons (Ontario), 2011 CarswellOnt 15914, the Court of Appeal declined to find irreparable harm despite financial consequences and acknowledged psychological impacts of the revocation of privileges.
. Shukla v. Board of Directors, Health Sciences North

In Shukla v. Board of Directors, Health Sciences North (Div Court, 2022) the Divisional Court usefully reviewed provisions of the Public Hospitals Act, as they bear on doctors and hospital privileges:
PART III – THE LEGISLATIVE FRAMEWORK

[14] The legislative background is important to include as background to Dr. Shukla’s argument that he has a strong prima facie case, because he submits that since the Appeal Board failed to interpret the provisions of the Public Hospitals Act, R.S.O. 1990, c. P.4 correctly, it determines his motion for a stay of the decision that revoked his privileges pending a final decision on the appeal. The processes for public hospital appointments and appeals from those decisions are legislated in Ontario.

[15] The PHA gives hospital boards the power to appoint physicians to the medical staff and determine what privileges will be attached to that appointment: See PHA s. 36. Privileges set out the scope of a physician’s ability to use the hospital’s resources to care for their patients within the hospital: See Kadiri v. Southlake Regional Health Centre, 2015 ONCA 847, 343 O.A.C 186 at para. 11. Hospitals pass by-laws pursuant to the PHA that include procedures for carrying out these responsibilities: See PHA s. 12.

[16] According to the PHA and its regulations, medical advisory committees first consider physician applications for appointments and privileges and then make recommendations to the hospital board. These recommendations may include making, renewing, suspending, restricting, or revoking physician appointments and privileges: See PHA s. 37; R.R.O. 1990 Reg. 965, s. 7(2)(a)(iv); Kadiri at para. 12.

[17] A physician may request reasons in writing for a recommendation by the medical advisory committee and seek a hearing before the board: s. 37(7). Where the physician applies for a hearing under s. 37(7) and has applied for reappointment, their appointment is “deemed” to continue until the appointment is granted. Where the physician is served with notice that the board refuses to grant reappointment, appointment is “deemed” to continue until the time for notice of a hearing to the Appeal Board has expired or if a hearing is required, until the time that the Appeal Board has rendered a decision.

[18] Where a physician considers themself aggrieved by any decision under s. 34 of the PHA or the hospital by-laws which “cancels, suspends, or substantially alters” their hospital privileges, s. 41 of the PHA gives that physician a right to written reasons of that decision, and a hearing before the Appeal Board. The Appeal Board is constituted under the Ministry of Health and Long-Term Care Appeal and Review Boards Act, 1998, S.O. 1998, c. 18, Sch. H.: See Kadiri at para. 14.

[19] Section 41(5) of the PHA provides that after the Appeal Board holds a hearing, it may confirm the decision appealed from or direct the board (or other decisionmaker) to take such action as the Appeal Board considers ought to be taken. The Appeal Board may also substitute its opinion for that of the board or decisionmaker.

[20] The Court of Appeal for Ontario confirmed that the PHA provides a legislative framework for a “comprehensive code under which the hospital determines privileges for a member of staff.” Beiko v. Hotel Dieu Hospital St. Catharines, 2007 ONCA 860 at para. 4.

[21] In this case, Schedule A to the hospital by-law for Health Science North has several types of procedures related to the questions of appointment, reappointment, suspension, or revocation of privileges which can be summarized as follows:
a. S. 15.6—Mandates the Board to appoint professional staff (physicians) for one-year appointments, but where there is a reappointment application during the year the appointment shall continue within one year.

b. S. 15.7—Provides for circumstances where there are performance, conduct or competence concerns by a professional staff member, and mandates the Board to revoke, suspend, restrict or “otherwise deal with the privileges of the member.” Two sets of procedures exist within s. 15.7, one for emergency responses to risk of harm, and the second for “non-immediate mid-term action.”

c. Schedule A to the by-law—sets out procedures for three scenarios: regular applications for appointment and reappointment, responses to an immediate need to suspend privileges mid-term in an emergency situation, and third, a non-immediate mid-term action.
[22] The Preamble to Schedule A of the by-law provides (after describing the three types of procedure) that
It should be noted that a member’s appointment and/or privileges shall continue throughout the review or investigation of circumstances relating to reappointment and until all appeals consistent with the Public Hospitals Act are completed.
. Kadri v Windsor Regional Hospital

In Kadri v Windsor Regional Hospital (Div Court, 2022) the Divisional Court considered an issue of a doctor's hospital privileges under the Public Hospitals Act, here in an appeal from the HPARB. The dispute revolves around a disagreement that the doctor had with new hospital policies:
[18] The Public Hospitals Act[20] mandates that all public hospitals have a “medical advisory committee”:
Medical advisory committee

35 (1) Every board shall establish a medical advisory committee composed of such elected and appointed members of the medical staff as are prescribed by the regulations.

Duties

(2) The medical advisory committee shall consider and make recommendations to the board respecting any matter referred to it under section 37 and perform such other duties as are assigned to it by or under this or any other Act or by the board.[21]
[19] The By-law of the Windsor Regional Hospital provides further information as to the role of its Medical Advisory Committee:
Rules and Regulations

The Board or the Medical Advisory Committee and, where appropriate, a Department or Service, with the approval of the Medical Advisory Committee, may make Rules and Regulations, as well as corresponding Policies and procedures, as deemed necessary to supervise the patient care and safety provided by the Professional Staff to ensure workplace safety, and to ensure that the behaviour of the members of the Professional Staff is consistent with the mission, vision, and strategic plan of the Corporation, the Public Hospitals Act, and the By-Law.[22]
....

This Appeal

[54] It is the decision of the Health Professions Appeal and Review Board that is the subject of the appeal to this Court.[90] The power of the Court in these circumstances is broad:
An appeal under this section may be made on questions of law or fact or both and the court may exercise all the powers of the Appeal Board, and for such purpose the court may substitute its opinion for that of the Appeal Board or board or other person or body authorized to make the decision appealed from, or the court may refer the matter back to the Appeal Board for rehearing, in whole or in part, in accordance with such directions as the court considers proper.[91]
[55] The parties agree that, as established by Canada (Minister of Citizenship and Immigration) v. Vavilov[92] where the legislature has provided for an appeal from an administrative decision the reviewing court is to apply the appellate standard of review described in Housen v. Nikolaisen[93]: questions of law attract the standard of correctness and questions of fact are reviewed on the standard of palpable and overriding error. Questions of mixed fact and law are said to fall on a spectrum that runs between the two stated standards of review. Where such questions fall on the spectrum depends on the circumstances of the case. Those that are particular to their facts, and thus not likely to have any continuing importance (no precedential value) tend to the palpable and overriding error end of the spectrum. Those that have continuing importance (precedential value) tend to the correctness end.[94]

....

[132] To go back to where these reasons began, this is not, as counsel for Dr Albert Kadri would have it, a circumstance where the hospital does nothing other than provide infrastructure so that a physician can carry out his or her practice as he or she decides without regard for the hospital’s broader role and responsibility. The system of providing health care is an integrated one, where the hospital, its staff and doctors work together to provide a high quality and hopefully efficient and economically feasible level of care. If a doctor is unable or unwilling to work within and respect the policies and programs properly approved and implemented by the hospital the choice is not to undermine the service being offered. It is to find another way or place to practice.
. Talwar v. Grand River Hospital

In Talwar v. Grand River Hospital (Div Court, 2022) the Divisional Court considered an appeal under the Public Hospitals Act involving the refusal of renewal of a doctor's hospital privileges:
[43] A physician’s ability to maintain collegial and professional relationships is a key component of patient safety and is a sufficient basis for non-renewal or termination of appointment (see: Rosenhek v. Windsor Regional Hospital, 2009 CanLII 88685). In deciding to confirm the Hospital Boards’ decision that Dr. Talwar’s appointment ought not to be renewed, the HPARB made a number of factual findings that are owed deference by this Court (see: Canada (Minister of Citizenship and Immigration) v. Vavilov, supra).

[44] Following its review of the evidence tendered at the hearing, the HPARB agreed with Dr. Talwar that it had not been demonstrated satisfactorily that Dr. Talwar’s clinical skills or his decision-making and judgment in clinical matters were such as to warrant the non-renewal of his hospital privileges.

[45] However, the HPARB found that Dr. Talwar’s conduct and behaviour over a prolonged period of time demonstrated an inability or refusal on his part to relate to and interact with his general surgery colleagues and with hospital administration in an appropriate manner. Dr. Talwar’s conduct led to complete breakdown in the necessary trust and confidence that must exist among a group of physician colleagues in order to have a functioning working relationship and deliver effective patient care.



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Last modified: 19-01-24
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