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On May 1, 2020, the Ontario government issued an emergency order pursuant to 7.0.2(2) of the Emergency Management and Civil Protection Act , having declared a state of emergency on March 17, 2020. This order remains in effect for the duration of the declared emergency.
While hospital activities pertaining to the credentialing and granting of professional staff appointments and privileges are set out in provisions included in the Public Hospitals Act, its associated Regulations, hospital By-laws and credentialing policies, the Ontario government has issued the above-referenced order to support the immediate needs of the province’s hospitals and health care workers so as to “better manage critical health care human resources during COVID-19”. In a government press release, it described the need for this order as a mechanism to improve flexibility for “our hospitals and health care workers so they can focus more of their time and resources on providing patient care and stopping the spread.”
The May 1, 2020 order authorizes the Board of a hospital or any of the hospital’s “authorized officers” to take any reasonably necessary measure to respond to, prevent and alleviate the outbreak of the coronavirus with respect to any aspect of the hospital’s credentialing processes.
“Authorized officers” are defined to include hospital Administrators, Chairs of hospital Medical Advisory Committees, Chiefs of Staff or, if there is no Chief of Staff, the President of the Medical Staff of the hospital.
Credentialing processes are defined as meaning the activities, processes, procedures and proceedings for appointing and reappointing members of the medical, dental, midwifery or extended class nursing staff and determining the nature and scope of the privileges assigned to them.
The order specifically notes that the Board of a hospital or the hospital’s authorized representatives are permitted to do the following, if it is a reasonably necessary measure to respond to, prevent and alleviate the outbreak of the virus:
- Identify medical, dental, midwifery and extended class nursing staff needs and priorities and do any of the following, despite any credentialing process that may apply:
- Appoint a physician, dentist, midwife or extended class nurse to any department of the medical, dental, midwifery or extended class nursing staff of the hospital, and determine the nature and scope of the privileges assigned to them;
- Reappoint, continue or extend the appointment of, or extend the time for the application for reappointment of, any member of the medical, dental, midwifery or extended call nursing staff of the hospital; and
- Determine the nature and scope of privileges assigned to a member of the medical, dental, midwifery or extended class nursing staff of the hospital;
- Collect information from the medical, dental, midwifery and extended class nursing staff about their availability to provide services for the hospital;
- Collect information from the medical, dental, midwifery and extended class nursing staff about their likely or actual exposure to the virus, any positive test results for the virus, or about any other health conditions that may affect their ability to provide services.
The provisions of this order apply despite: (a) any provision of any other statute, regulation, order, policy or by-law; (b) any provision of an arrangement or agreement; (c) any provision of a by-law, rule, regulation, policy or procedure of a hospital; and (d) the terms of the appointment of a physician, dentist, midwife or extended class nurse or the nature or scope of privileges assigned to them.
While this order grants broad powers to authorized officers, as defined above, it also notes that, by resolution, the Board of any hospital may prohibit one or more of the hospital’s authorized officers from taking the above measures, except those pertaining to the collection of information. Furthermore, by resolution, the Board may vary or rescind any action described above taken by an authorized officer, except as it pertains to the collection of information.
Importantly, these actions can only be taken if the measure is reasonably necessary to respond to, prevent and alleviate the outbreak of the virus. If that is not the intent of the action being undertaken, the credentialing provisions set out in the Public Hospitals Act, its associated Regulations, hospital By-laws and credentialing policies continue to apply.
Miller Thomson’s Health Industry Group is continuing to monitor developments related to the COVID-19 Pandemic and provide timely updates. We remain on call to answer your questions and support your legal needs as we all deal with the uncertainties of the impact of COVID-19.
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