Expanded bill lacks protection for physician’s privileges
PUBLISHED: Expanded Bill Lacks Protection for Physician’s Privileges, Law360, July 27, 2023.
The Ontario government has expanded the scope of OHIP-insured services that can be provided to the public at private facilities. The goal, under the Your Health Act, SO 2023, c 4, Bill 60 (“Your Health Act”), is to expand access to publicly funded healthcare services in order to improve patient wait-times. The problem is that the new legislation is missing an entire procedural framework for physicians: a process by which they can protect their privileges to practice at these private facilities.
In Ontario, patients access publicly funded (i.e. OHIP “insured”) healthcare services through public facilities, such as a public hospital. A consequence of our public system is unacceptable wait-times for medically necessary care. There are, already, private facilities in the province that provide patients with medical services on a private-pay basis; meaning, patients pay out of pocket. For example and put simply, a patient can decide to wait (a very long time) in order to have cataract surgery performed at a public hospital, and have it paid for by OHIP. Or, a patient can elect to pay for refractive cataract surgery at a private clinic, where the patient will be seen much faster and, often, benefit from more advanced technology. There is a lot of debate out there about whether this should be allowed, or not – and that debate will not be the focus of this article.
Under the Your Health Act, private facilities will be able to offer more OHIP-insured services to the public. When we allow private facilities to operate under the public system, there should be procedural safeguards for physicians who operate at these facilities. Those mechanisms to access justice are not in the Your Health Act.
By way of context, in order for a physician to work at a public hospital, that physician must be granted an appointment (or “privileges”). A physician’s appointment (or privileges) is their ticket to practice at the public hospital. Since it is a public hospital, the legislature, in its wisdom, set out a procedural framework, in the legislation, to govern the appointment of a physician’s privileges. Under the Public Hospitals Act, RSO 1990, c P 40 (“Public Hospitals Act”), public hospitals can be held accountable in connection with decisions that affect a physician’s appointment or privileges.
The Public Hospitals Act provides that every physician is entitled to apply for an appointment or reappointment of their privileges to the medical staff of a public hospital. The term of a physician’s appointment is for one year, and it is renewed annually. If a public hospital decides not to appoint or reappoint, or decides to revoke, suspend, cancel, or substantially alter a physician’s appointment or privileges, that physician can appeal the hospital’s decision to the Health Professions Appeal and Review Board (HPARB).
HPARB is a quasi-judicial tribunal. It is entirely independent from a public hospital. At HPARB, the physician is entitled to a hearing de novo – which means, a brand new hearing. In hearing the case of a physician’s appointment or privileges, HPARB owes no deference to the public hospital. HPARB hears the physician’s case anew and makes its own decision, which can include the board substituting its decision in place of the hospital’s prior decision. HPARB’s independence and its ability to substitute its own decision in place of the hospital’s, is a crucial mechanism for a physician to be able to access justice when wronged by their public hospital.
The Public Hospitals Act, however, does not apply to private facilities that will be licensed under the Your Health Act. It says so right under section 2 of the Public Hospitals Act, and the related amendments under the Your Health Act.
Under the Your Health Act, a private facility can apply for a licence to operate as an integrated health services centre and provide OHIP-insured services, to the public. In this respect, it would operate exactly like a public hospital, despite it being a private facility. Considering the procedural framework across sections 37 – 41 of the Public Hospitals Act, and considering that private facilities will now be permitted to operate under the public system, one would reasonably expect to see a procedural framework mirroring that of the Public Hospitals Act, within the Your Health Act. But, there isn’t one.
The word “privileges” appears once under the Your Health Act. Section 5(4)(e)(iv) requires a private facility, when applying for a licence under the Your Health Act, to provide the Ministry with “information regarding the hospital privileges of physicians who provide services at the centre, if applicable.” This language would appear to suggest that even the Ministry presumes that private facilities will grant “privileges” in the same way as public hospitals. Yet, the legislation is silent on the procedural framework surrounding those very privileges.
It did not escape the Ministry to require that private facilities shall have a “complaints process” to respond to and address patient complaints (section 22 of the Your Health Act). Yet. The Your Health Act is silent on how physicians can defend themselves when they are the subject of those complaints and/or decisions regarding their privileges.
This is concerning because it provides physicians with no recourse and no participatory rights when faced with a decision that could destroy their livelihood. Without a legislated framework for the governing of their hospital privileges, the only recourse that a physician would have, if treated unfairly by their private facility, is by way of civil litigation. Not only is that route expensive, arduous and intimating, but there is a paucity of civil case law on physicians’ appointments at private facilities. Why? Because until now, (almost) all OHIP-insured healthcare was provided exclusively by public hospitals, for which there is a legislated framework under the Public Hospitals Act! The legal analysis in the cases before HPARB is necessarily different, as compared to a physician at a private facility, because of that administrative framework.
If private facilities are now permitted to operate under our public system, and are empowered to do so by way of legislation, there ought to be a procedural framework that echoes the principles contained under the Public Hospitals Act, so that physicians have some ability to protect their livelihoods and level the playing field when providing their services and devoting their careers to these facilities.
