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Following a March 21, 2020 Order made pursuant to Ontario’s Emergency Management and Civil Protection Act, which applies to health service providers (including hospitals and psychiatric facilities), hospitals are now required and authorized to take any reasonably necessary measures with respect to work deployment and staffing to respond to, prevent and alleviate the outbreak of COVID-19.
The Order allows hospitals to employ extra temporary contractors. It further allows hospitals to require and collect information from contractors about their availability to provide services and about their likely or actual exposure to the coronavirus, or any other health conditions that may affect their ability to provide services.
This follows a statement from Ontario’s Minister of Health on March 15, 2020 requesting that all hospitals ramp down elective surgeries and other non-emergent clinical activity so as to preserve capacity for COVID-19 cases.
Consistent with the above and so as to effectively respond to COVID-19, hospitals may be required to make scheduling changes for physicians and other privileged health professionals, as well as bring on additional privileged health professionals, depending on professional staff human resource needs. These actions may have implications for the privileges of existing professionals and may require immediate and expeditious granting of privileges.
To the extent that any scheduling changes result in what may be deemed a substantial alteration of privileges, such alteration may be justified if the dominant purpose is the quality of care being delivered to patients and/or the need to respond to COVID-19. Care should be taken to ensure that any potential alteration of privileges for these purposes is done equitably.
To the extent that a hospital requires the immediate and expeditious granting of privileges to new professional staff, hospitals should comply with their professional staff by-laws. The granting of Temporary privileges may be an appropriate tool in such circumstances. Hospitals should be mindful of the duration of those privileges, keeping in mind any by-law requirements with respect to the possibility of extending temporary privileges.
The College of Physicians and Surgeons of Ontario has a policy on public health emergencies. This policy acknowledges that during public health emergencies it may be necessary for physicians to temporarily practice outside of their scope. It authorizes such temporary actions under the following conditions:
- the medical care needed is urgent;
- a more skilled physician is not available; and
- not providing medical care may result in greater risk of harm to the patient or public than providing it.
To ensure competence while temporarily practising outside one’s scope of practice, the policy states that “physicians must exercise their professional judgement and work with their health care colleagues to determine what appropriate medical care they can provide to persons in need of care, in accordance with the relevant legislation and emergency management plans.” Physicians are not permitted to practice outside their scope once the public health emergency is over.
Physical distancing and resource issues resulting from COVID-19 may also mean that a hospital’s Medical Advisory Committee (MAC) is prevented from meeting with respect to the annual renewal of physician privileges. Section 37(5) of Ontario’s Public Hospitals Act states that a MAC may defer consideration of a physician’s application for appointment and privileges if, within sixty days of receiving the application, it advises the Board and the applicant in writing that a final recommendation cannot yet be made and gives written reasons therefor. If COVID-19 prevents your MAC from meeting to discuss annual renewal such that the MAC cannot make a recommendation within the 60 day requirement, notice ought to be given to both the physicians and the board of this deferral. Compliance with the Public Hospitals Act will ensure existing privileges remain uninterrupted.
Miller Thomson’s Health Industry lawyers are available to assist with any questions or issues regarding physician privileging.
Miller Thomson is closely monitoring the COVID-19 situation to ensure that we provide our clients with appropriate support in this rapidly changing environment. For articles, information updates and firm developments, please visit our COVID-19 Resources page.
