Health

Physician privileges case shows limited jurisdiction of HRTO

By Jennifer Pritchett, Associate Editor

A case involving a physician illustrates the limited jurisdiction of the Human Rights Tribunal of Ontario (HRTO) over unfair — but not discriminatory — interference with hospital privileges, Toronto health lawyer Lonny Rosen tells AdvocateDaily.com.

“This matter highlights the fact that health professionals need to deal with unfair policy or action by a hospital or facility through the Public Hospitals Act or the courts,” he says.

“The Human Rights Tribunal will not assist unless there is evidence of discrimination on the basis one of the enumerated grounds set out in the Human Rights Code."

Rosen, a partner with Rosen Sunshine LLP, notes how the physician, in this case, had hospital privileges that required a certain amount of on-call time. The hospital had a policy that stipulated doctors’ on-call time would be gradually reduced as they became closer to their retirement.

The physician, a specialist in internal medicine, went to the HRTO after he was advised that he would be required to resign his privileges in accordance with the hospital’s on-call policy, which he argued was tantamount to mandatory retirement, says the tribunal’s decision.

The policy sets out how physicians may apply to the hospital for a special arrangement to allow for reduced on-call time as they near retirement, says the ruling.

“If the request is accepted, the physician will reduce his or her on-call work in exchange for a reduction in hospital privileges over a five-year period. At the conclusion of five years, the physician resigns his or her privileges altogether,” the HRTO decision says.

The doctor in this matter, says the ruling, “believes that this is unfair and that he should have been permitted to continue on what was essentially a special arrangement within a limited scope of practice and no on-call responsibilities.”

He alleged discrimination and reprisal with respect to employment because of age and disability contrary to the Human rights Code, says the ruling.

The physician, in his arguments to the HRTO, identified three reasons why he believed his treatment with respect to the sunset policy was discriminatory:

  1. He never voluntarily agreed to the application of the sunset clause;
  2. The sunset clause does not apply to the work that he was doing in nuclear medicine;
  3. The policy was not applied evenly with respect to other doctors who appeared to be able to remain beyond the five-year period.

Th tribunal dismissed his application.

Rosen says the HRTO found the hospital policy was applied equally to everybody, and even if the policy was unfair, it was not discriminatory.

“This case is consistent with many others which found that if there was no discrimination on the basis of one of the protected grounds, which includes age, race, religion, disability, etc, then the HRTO has no jurisdiction to intervene,” he says.

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