Operating under a misconception: No procedural fairness owed in respect of decision to revoke of OR privileges

Hospital did not owe duty of procedural fairness to the dental surgeons whose OR privileges it revoked pursuant to the Public Hospitals Act.

Administrative law – Decisions reviewed – Hospital Board – Judicial review – Procedural requirements and fairness – Hearings – Standard of review – Reasonabless – Physicians and surgeons – Hospital privileges

Abbott v. London Health Sciences Centre, [2024] O.J. No. 3134, Ontario Superior Court of Justice – Divisional Court, July 12, 2024, D.L. Corbett, W.M. LeMay and S. Shore JJ.

The London Health Sciences Centre (the “hospital”) canceled the applicants’ access to ORs in the hospital without prior notice or consultation with the applicants. The applicants were dental surgeons who had historically been permitted to access OR time and resources at the hospital for their private practice patients. They sought judicial review of the decision with the court, arguing that the hospital’s decision to revoke their privileges breached their rights to procedural fairness due to the lack of proper notice and opportunity to be heard. The hospital argued that the decision was made pursuant to s. 44 of the Public Hospitals Act (PHA), so it was not required to give notice or provide those affected with any opportunities to be heard; i.e., that the applicants were not entitled to procedural fairness in respect of the decision.

The court found that the decision to revoke OR access constituted a decision to cease a service under s. 44 of the PHA, so the applicants were not entitled to procedural fairness. The decision was necessary to comply with the Hospital Service Accountability Agreement (HSAA) and ensure equitable access to OR resources through the Wait Time Information System (WTIS). The court held that the decision was made in good faith, as required by s. 44 of the PHA, within its mandate to ensure compliance with funding requirements and equitable patient access. The decision was therefore upheld as reasonable.

This case was digested by Kara Hill of Harper Grey LLP.  If you would like to discuss this case further, please feel free to contact her directly at [email protected].