In a new act which has recently received Royal Assent, Safeguarding Health Care Integrity Act, 2014, S.O. 2014, c. 14., the legislature has significantly expanded a hospital’s duty to report to the College of Physicians and Surgeons of Ontario (“CPSO”) where there are concerns about physician’s competence, negligence or conduct.

The current reporting obligation in the Public Hospitals Act, R.S.O. 1990, c. P. 40, provides:

33.Where,

  1. the application of a physician for appointment or reappointment to a medical staff of a hospital is rejected by reason of his or her incompetence, negligence or misconduct;
  2. the privileges of a member of a medical staff of a hospital are restricted or cancelled by reason of his or her incompetence, negligence or misconduct; or
  3. a physician voluntarily or involuntarily resigns from a medical staff of a hospital during the course of an investigation into his or her competence, negligence or conduct,

the administrator of such hospital shall prepare and forward a detailed report to The College of Physicians and Surgeons of Ontario.

Once the new act comes into force (there is no proclamation date at present), s. 33 (c) will be repealed and replaced with the following:

  1. a physician resigns from a medical staff of a hospital or restricts his or her practice within a hospital and the administrator of the hospital has reasonable grounds to believe that the resignation or restriction, as the case may be, is related to the competence, negligence or conduct of the physician; or
  2. a physician resigns from a medical staff of a hospital or restricts his or her practice within a hospital during the course of, or as a result of, an investigation into his or her competence, negligence or conduct,[emphasis  added]

This amendment is in-line with the legislative evolution in Ontario towards enhanced patient safety and transparency.

The effect of this amendment will be to decrease the scope for discretion on the part of hospital administrators when considering whether or not to report a physician to the CPSO. Historically, there was no express statutory obligation to report to the CPSO, where, for example, a physician voluntarily restricted his/or her practice while a mid-term or other review was unfolding in hospital.

With this new amendment, whenever there is a resignation from staff or a restriction in practice (even without formal alteration of a physician’s privileges) related to issues of competence, negligence or conduct, a report is mandatory.

It would be unfortunate if this amendment had the effect of discouraging physicians from voluntarily agreeing to restrict their practices pending the results of a review. In order to minimize this risk, reports to the CPSO should include enough detail to distinguish between cases where the hospital has insufficient information to come to any conclusion about competency (for example where cases of concern are being investigated but the conclusion remains uncertain) and cases where there is compelling evidence of incompetency.

Although not required by the legislation, we recommend that whenever possible, a physician be given advance notice of any CPSO report, and be copied on the report. There may be circumstances where the administrator may wish to invite the physician’s comments on the draft report before it is finalized. In the event that a voluntary restriction is being considered, being afforded this opportunity may have a positive influence on the physician’s decision.

There is statutory immunity under the Public Hospitals Act for certain individuals (including a member of a committee of the medical staff) in respect of good faith reports to the CPSO.

The Public Hospitals Act is only one source of a hospital’s reporting obligations in respect of physicians. This new legislation also similarly expands reporting obligations for all persons who employ or grants privileges to any member of any regulated health profession. Notably the new legislation also provides Colleges with more latitude to communicate information to hospitals about College investigations.