Arbitrator asserts jurisdiction to restrict how doctor can exercise hospital privileges

A recent arbitration decision has suggested that an arbitrator has jurisdiction to restrict a physician’s exercise of his hospital privileges. In a recent labour arbitration decision, William Osler Health System v. Ontario Nurses’ Association (“William Osler”), the presiding arbitrator found that he had authority to determine how close, and under what conditions, a doctor should be permitted to work with a nurse whom he was alleged to have sexually harassed. This decision calls into question the view that the Public Hospitals Act (the “PHA”) is the only legislation that governs how physicians provide clinical services in a public hospital.

Understanding Hospital Privileges

Generally, physicians are not employees of public hospitals. In order to provide clinical services, physicians must annually apply to be appointed to a hospital’s professional staff and must be granted “privileges”. These privileges set out physicians’ rights and responsibilities within the hospital. The PHA requires that a hospital board appoint physicians and determine the hospital privileges to be attached to the appointment. Decisions of the Board can be appealed to the Health Professions Appeal and Review Board (“HPARB”). After holding a hearing, HPARB may confirm the decision of the Board or substitute its own opinion for that of the Board and direct the Board to take such action as HPARB believe ought to be taken in accordance with the PHA.

The Arbitration Decision

The facts of William Osler are as follows: A nurse employed at the William Osler Health System (the “Hospital”) claimed that she had been sexually harassed in the workplace by Dr. G, a physician on staff at the Hospital. The Hospital proceeded under the PHA torevoke Dr. G’s privileges, and Dr. G subsequently applied to have his privileges reinstated. At the same time, the nurse’s union brought a grievance on behalf of the nurse, seeking a number of remedies, including “an assurance that Dr. G will not be allowed to return to the workplace.” Both Dr. G and the Hospital challenged this ground of relief on the basis that the arbitrator had no jurisdiction to award it. Specifically, they asserted that the statutory scheme created under the PHA to determine physicians’ entitlements to hospital privileges was comprehensive and precluded the arbitrator from exercising his authority to grant the requested relief under the Hospital’s collective agreement, the Occupational Health and Safety Act (“OHSA”) and the Ontario Human Rights Code (“Code”).

The arbitrator considered as a preliminary matter whether he had jurisdiction to grant the relief requested, or whether this issue was exclusively the jurisdiction of HPARB. He first examined the ambit of the relevant legislation, which in this case included the PHA, the OHSA and the Code, and then determined the nature, or essential character, of the dispute. The arbitrator decided that this determination was based on the facts surrounding the dispute between the parties, rather than how the legal issues were framed.

The arbitrator observed that the legal issues in this dispute could be framed in two ways: (1) as a determination respecting Dr. G’s privileges under the PHA; and (2) as a question of the nurse’s entitlement to a safe and harassment-free work environment under the OHSA and the Code. The argument advanced by Dr. G and the Hospital characterized the issue in the first manner i.e. that the privilege determination was paramount. The arbitrator held that this was an incorrect characterization because it placed the legal issue ahead of the facts surrounding the dispute.

The arbitrator identified the essential question in this dispute as how close Dr. G should be able to work to the nurse, and under what conditions. He reasoned that the entire factual context revolved around this question, whether in an arbitration or under the PHA process. The arbitrator held that he had jurisdiction because the dispute involved labour relations and workplace safety questions arising out of the collective agreement, the OHSA and the Code, all of which guarantee the nurse a safe workplace, free from sexual harassment and discrimination.

In summarizing his reasons, the arbitrator noted that although the remedy flowing from the arbitration may overlap (or even conflict) with a ruling regarding hospital privileges made under the PHA proceedings, the jurisdiction exercised in each process was different. While the hospital board and HPARB have jurisdiction to restore Dr. G’s privileges, the arbitrator decided that he also had the authority to determine the terms and conditions under which Dr. G may exercise these privileges in the context of the nurse’s entitlement to a safe workplace free from the risk of harassment.

Conclusion

This case is significant as it suggests that hospital board and HPARB do not have exclusive jurisdiction over how a physician will be permitted to provide clinical services within the hospital. While the PHA governs the granting and exercise of a physician’s hospital privileges, where a physician’s conduct is alleged to negatively impact on individuals employed by the hospital, labour law proceedings may also impact how the physician exercises such hospital privileges.

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