Public Hospital Advisory: Ministry of Health extends general approval under Public Hospitals Act of temporary capacity expansion for public hospitals

February 23, 2021 | Meg Berkovitz, Karima Kanani

Public hospitals in Ontario continue to collaborate with healthcare and community partners to build system capacity in responding to COVID-19.  Subsection 4(2) of Ontario’s Public Hospitals Act (“PHA”) requires the approval of the Minister of Health to operate or use any “institution, building or other premises or place” for the purposes of a hospital.

In March 2020, the Ministry of Health (“Ministry”) provided hospitals with the flexibility required to meet service demands related to COVID-19 by waiving submission requirements under the Section 4 Approvals Protocol relating to approval requests under subsection 4(2) of the PHA. The Ministry also granted general approval to all public hospitals under subsection 4(2) of the PHA to operate and use premises, including hotels, retirement homes and community centers, for the purposes of a hospital, provided that certain conditions were met (please see our Health Communique for details on the original waiver and approval). The Ministry waiver and approval were set to expire on March 31, 2021. However, due to ongoing pressures on Ontario’s health care system, the Ministry has recently extended the approval and waiver until June 30, 2021.

Due to the recent extension, public hospitals continue to be approved to operate and use an institution, building or other premises for the purpose of a hospital, provided that the following conditions are met:

  • The hospital leases, licenses or otherwise acquires a temporary right to occupy the premises to address the hospital’s needs to create greater capacity for patient treatment arising from COVID-19, seasonal influenza and ramp up of elective surgeries;
  • The term of any lease or license does not extend past June 30, 2021;
  • The premises are selected in consultation with and endorsed by the hospital’s Ontario Health Region Planning Table, and with due regard to their suitability for the intended purpose (in view of the current exigencies and system challenges) and for the safety of patients, hospital staff and others; and
  • The hospital provides the Ministry certain information relating to the premises, including the address, specific premises or portion of premises being occupied, purposes for which the premises are used, number of beds operated on the premises, details respecting rent, copy of the lease or license agreement, etc.

The general approval does not apply to the purchase of property by a hospital.  If a hospital is proposing to purchase premises, it is required to seek Ministry approval in accordance with the Section 4 Approvals Protocol.

The general approval is temporary and effective until June 30, 2021, unless it is revoked earlier.  However, in its communication of February 1, 2021, the Ministry recognized that the time limitation on the temporary approval may pose a barrier in some cases and has indicated that it will consider granting approvals up to March 31, 2022 to hospitals that submit subsection 4(2) PHA approval requests for longer-term arrangements that will assist in addressing provincial surgical backlogs.

Miller Thomson Health Industry lawyers remain available to support public hospitals on all aspects of their COVID-19 planning, including leasing or licensing arrangements for space to expand capacity for patient care.


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