AccounTrust (post until Sept. 30/19)

The importance of training for health boards

Training helps health boards avoid common misconceptions around dispute resolution and how to deal with conflicts of interest, says Toronto health lawyer Kathy O’Brien.

“Boards really need to wrap their collective minds around these two issues,” she tells

“And they come up for organizations of all sizes and levels of sophistication. Part of the problem is that board members don’t generally receive orientation and training on what it means to be a board member.

“Board education is really necessary when new people are added to ensure that everybody understands these basic rules. This gives them the tools to fulfil their responsibilities as a director.” 

O’Brien, a partner with DDO Health Law, says boards often want to know how they move forward if the members are at an impasse when they don’t agree on a particular issue.

“The answer is to take a vote and the majority rules — it doesn’t have to be a consensus,” she says.

“There is a bit of a misconception that decisions at the board always have to be unanimous. People in health care often want to all be on the same page and they want to achieve consensus to move forward together, but the fact of the matter is, not everybody agrees about everything all of the time.

“They should have a good discussion to hear everyone’s differing opinions but at the end, the chair calls for a vote.”

O’Brien says there’s also the rule of board solidarity.

“Each board member is absolutely encouraged to have a full, frank discussion at the board table to advocate their position fiercely and passionately,” she says. 

“But if they happen to be on the losing side, they are part of the board and are in solidarity with the board on its decisions. That means they support the board’s decisions when they leave the room.”

Solidarity is a “basic rule of governance,” O’Brien says.

“You don’t undermine the board’s decision when you leave the room by saying, ‘I didn’t agree with this,’ or ‘I didn’t vote for that,’” she says. 

“My view is that if you’re asked about an issue and you’re on the losing side, you say, ‘I made my position known for these reasons but the majority prevails and I’m going to support the board.’ If you can’t say that, you should be resigning because you’re not going to be a functional board member if you can’t do that.”

While there is no legislation requiring hospital board meetings to be open to the public, O’Brien notes provincial law does dictate that they are subject to Freedom of Information and Protection of Privacy Act requests.

Health organizations also mistakenly believe that anyone who has a conflict of interest can’t be on the board, she says. In fact, how to deal with conflicts is the most common question she receives from health boards. 

“Conflicts of interests aren’t prohibited. There’s a process for dealing with them because they come up and, in many cases, they are unavoidable,” O’Brien says. 

“First of all, you have to ask yourself, 'Is this even a conflict of interest?' You’re always supposed to vote in the best interest of the organization and a conflict arises when there is something else in your life that is preventing you from voting objectively and exclusively in the best interests of the corporation.”

If you do have a conflict of interest, the corporate law process is to declare it to the board, O’Brien says.

“You say to the board for example, ‘We’re voting on a contract and my spouse owns the company and I’m in a conflict of interest. I’m declaring it and please minute it.’ The process is that you leave the room and you don’t participate in the discussion or the vote. The rest of the board deals with the matter and then you come back into the room.

“As long as you follow that process, you're fine.”

O’Brien says if you’re not certain you have a conflict of interest, put it on the table and let the board vote as to whether it is.

“And again, the majority rules and you proceed from there,” she says. 

In fact, having relationships with others in the health sector can be a good thing rather than a conflict because it brings different perspectives, O’Brien adds.

“It could make you more knowledgeable about the health-care system as a whole and probably makes you a better director for the board,” she says. “Participating in other parts of the system doesn’t necessarily create a conflict and if it does, there is a process for dealing with it.”

To Read More Kathy O'Brien Posts Click Here
Lawyer Directory
New Media Forensics (keep up until June 30, 2019)Toronto Lawyers Association (post to 6.30.19)MKD International (post until Sept. 30/19)Feldstein Family Law (post until May 31/19)Jordana Goldlist (post until Sept. 30/19)Macdonald Sager Manis Will DavidsonMacDonald & Associates (post until July 31/19)