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Appointment of hospital supervisor brings major local impact: O'Brien

Two Ontario communities — Brockville and Chatham — have temporarily lost local control of the operation of their hospitals after the province stepped in to appoint a supervisor in each location to address “organizational challenges” and "loss of public confidence," says Toronto health lawyer Kathy O’Brien

“This brings a massive impact on the community,” she tells AdvocateDaily.com. “The appointment of a supervisor gives that person complete decision-making authority at that hospital."

O’Brien, partner at DDO Health Law, says it is an important development because hospitals in Ontario are community governed with volunteer boards that are populated by local citizens.

“It’s a bit of a vote of no confidence when the government exercises this power because it’s basically saying the community is not able to govern the hospital properly,” she says. 

O’Brien comments on the issue after the Ministry of Health and Long-Term Care announced Oct. 6 it had appointed a supervisor at Brockville General Hospital. A government press release states the ministry appointed Kevin Empey as hospital supervisor to address the organizational challenges that the South East Local Health Integration Network Board identified.

Empey “will take the necessary steps to improve the functioning of the hospital, which includes re-establishing a board," it says. 

The press release describes Empey as "a well-respected, senior health-care leader with a strong financial background and a track record of successful hospital management." He most recently served as president and chief executive officer of Lakeridge Health from 2008 to 2016.

In his new role, Empey will “have the authority to exercise all of the powers of the hospital board, the corporation, its officers and employees," it says.

O’Brien explains the minister can recommend the appointment of a supervisor over a public hospital under the Public Hospitals Act and the ultimate decision is made by cabinet. Depending on the terms of reference of the supervisor, this individual assumes the powers of the corporation, board, CEO and corporate members. 

She says the appointment of a hospital supervisor is a power the government exercises when necessary.  

“It is often a step taken due to financial issues (deficits), board dysfunction, community/physician activism, major construction projects or loss of public confidence in the hospital,” O’Brien says. 

“In the short term, it brings huge legal implications — there’s one individual making decisions related to an entire hospital corporation, which is very unusual,” she says. “But long term, I think the implication is this is supposed to restore stability, public confidence and financial order.”

O’Brien notes that the Brockville hospital supervisor is the 22nd appointed since 1981 and while it is an infrequent step taken by the province, the government also appointed a supervisor on Sept. 1 over three hospitals that form the Chatham-Kent Health Alliance. She says that appointment resulted from two of the three hospitals deciding to terminate that long-standing alliance, as well as other concerns about closure of an emergency room at its small rural hospital site.

“We’ve had 22 appointments in 35 years but two were in the last five weeks, so this minister is being very proactive,” she says. “If he’s seeing dysfunction or concerns coming out of local hospitals, he is not being reluctant to exercise the powers the government has given him.”

O’Brien says it’s important to point out the context in which the appointment of the last two hospital supervisors occurred. She says the Patients First Legislation (Bill 41) was re-introduced in October. If passed, it would give Local Health Integration Networks (LHINs) — 14 of them across the province — the power to appoint supervisors over health-service providers over which they have jurisdiction, including community health centres.  

“This is significant as the LHIN appointment of a supervisor does not require cabinet approval,” she explains.

“The current process for the appointment of a supervisor ultimately requires the decision go to cabinet. In the case of Bill 41, there is not going to be that check and balance so the LHINs are going to have the ability to appoint a supervisor as a unilateral decision without any sort of second check and balance. So the whole issue of supervisors is quite the hot-button issue right now because everybody’s talking about that power and how much it is going to be exercised."

O'Brien says many in the health-care sector believe the issue of supervisors and the LHINs will be raised again.

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