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Medical Law - Hospital Privileges. 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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