Ontario’s new health law raises issues for physician recourse, says health lawyer Brooke Shekter

Ontario recently paved the way for more private healthcare in the province, but Brooke Shekter, a health lawyer at TTL Health Law says the changes create a “whole new ball game” for physicians seeking recourse for the private clinics’ decisions about their employment.

In May, the province’s Progressive Conservative government passed Bill 60, the Your Health Act, 2023. The law allows for the establishment of private health service centres, which are permitted to provide medically necessary healthcare, including surgery.

In Ontario, the Public Hospitals Act governs public hospitals and provides procedural safeguards to physicians. Physicians are not employees of the hospital, but independently regulated professionals practising through professional corporations, and regulated by their college under the Regulated Health Professions Act. The Public Hospitals Act also gives physicians hospital privileges, which include their appointment to a hospital’s staff, access to facilities, and specification of the types of procedures they may perform.

The Health Professions Appeal and Review Board (HPARB) is an independent adjudicative agency that deals with disputes over physician hospital privileges. It also handles reviews of decisions from the Inquiries, Complaints, and Reports Committees of Ontario’s self-regulating health professions, and reviews and conducts hearings of College Registration Committee orders. Decisions around appointment, reappointment, and suspension or altering of physician privileges go to the tribunal.

“There's a very clear route of how physicians can access justice when they're wronged by their public hospital under the Public Hospitals Act,” says Shekter. “But in the Your Health Act, there's nothing about how they can access any kind of justice.”

In the Your Health Act, the amendments state clearly that the Public Hospitals Act does not apply to the private facilities, she says.

“They're going to give privileges to these physicians to operate at these private facilities, but then there's literally no recourse for those physicians if something goes wrong and the hospital wants to take away their privileges.”

While doctors will enter contracts with the private clinics and have access to the common law, Shekter says that, until recently, all the caselaw around physician-privilege issues has occurred under HPARB, an administrative, quasi-judicial tribunal. The legal analysis would be “completely different” suing a private facility in court, she says.

“That is a whole different kettle of fish. Their entitlements under the common law, as employees, would not necessarily be sufficient to rectify the wrongs of having privileges revoked or suspended. It might not be enough.”

An employee who gets fired from their job can usually go get another job. But as regulated professionals, revoking or suspending a physician’s hospital privileges could “unilaterally destroy their entire career,” says Shekter.

“I think it's important that physicians have a way to protect their careers and be able to protect their livelihoods.”