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  • Employers and emergency call centre workers: your liability for property damage is limited

    In May 12, 2017, the Court of Québec1 concluded that an emergency call centre had no liability for property damage caused by first responders who broke down the door of a residence in order to assist a user in respiratory distress. In this case, the Court held that a call centre who required the intervention of a first responders service cannot be held liable for damages caused during the ensuing intervention, despite the fact that the call centre clerk had made a mistake by not providing the first responders with the access code to open the door. At the hearing, the facts were not contested by the call centre, which acknowledged that the access code for the front door had been provided to the call centre dispatcher but not to the first responders. Despite that mistake, the Court dismissed the action on the basis of the exoneration of liability provided for in section 42(2) of the Act respecting Pre-hospital emergency services2 (hereinafter the “Act”): 42. No person who acts as a first responder under this Act in accordance with the clinical intervention protocols determined by the Minister under section 39 shall incur liability for any injury that may result from his or her intervention, unless the injury is due to an intentional or gross fault. The immunity also applies to the authority having established the first responder service. Likewise, the person or body having required the intervention or assistance of a first responder service may not be held liable for any injury resulting from the intervention. [our emphasis] The Court held that the scope of this provision extended to the emergency call centre as “[a] body having required the intervention or assistance of a first responder service”.3 Up until this point, the provision had never been interpreted by the courts. Therefore, the Court stated that in the absence of any evidence of intentional or gross fault, the defendants could not be held liable pursuant to the second paragraph of section 42 of the Act respecting Pre-hospital emergency services.4 The clerk’s failure to provide the door access code, although an error, was not intentional and cannot be characterized as a gross fault. Furthermore, the Court stated that given that the firemen had to act very quickly, it cannot be presumed that they would have used the code to open the door to the user’s residence even if they had been in possession of that information. Furthermore, the evidence indicated that neighbours present at the relevant time told the first responders that they had the code for opening the door. In short, in the absence of evidence of intentional or gross fault, an emergency call centre could not be held liable. In our view, this decision is consistent with the object of the Act as set out in section 1, namely to “ensure that persons in need of pre-hospital emergency services are at all times able to obtain an appropriate, efficient and quality response aimed at reducing the mortality and morbidity rate among the recipients of pre-hospital emergency services”. Acting in concert with the first responder, the emergency call centre must also be able deliver rapid intervention by concentrating on its primary objective, which is to assist people in distress, without fear of being sued.   Roy v. Groupe Alerte Santé inc., 2017 QCCQ 6729 (hereinafter the “Roy” case). Act respecting Pre-hospital emergency services, CQLR, c. S-6.2 (hereinafter the “Act”). Ibid., s. 42 (2). Roy, supra note 1, para. 15.

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  • Inappropriate conduct, lack of cooperation and insufficient availability
    are sufficient grounds for a health institution’s to refuse to renew a physician’s practice privileges

    On May 31, 2017, the Superior Court of Québec1 (the “Court”) dismissed a urologist’s application for judicial review of a decision of the Administrative Tribunal of Québec2 (the “ATQ”) upholding a decision made by the Board of Directors of a health institution (the “Board”) not to renew the urologist’s practice privileges, particularly due to recurring behavioural problems. Facts After a few years of practice, the urologist was questioning his professional life. He decided to reduce his workload and informed the institution’s Professional Services Department of his plans. However, given that the needs in the region did not warrant the hiring of a fourth urologist, the institution was unable to create a new position in urology, which would have been necessary in order to accommodate the decrease in the urologist’s workload. The latter reacted strongly when he was informed of this refusal and nonetheless decided to impose his own restricted availability on the institution. In so doing, he breached the regional urology agreement and defied the institution’s medical and administrative authorities. The Board decided not to renew the urologist’s status and practice privileges principally because his chronic lack of cooperation and availability affected the accessibility and continuity of care of the urology department’s services. The Board concluded that the urologist’s reported conduct was incompatible with the obligations associated with a physician’s practice privileges. In addition, the Board found that the urologist was incapable of accepting inherent constraints of his medical practice, displayed a severe lack of self-criticism, and was insubordinate and disloyal to his employer. Challenge before the ATQ The urologist’s challenge of the Board’s decision before the ATQ resulted in a lengthy inquiry, requiring 12 days of hearings. Based on the evidence submitted before the ATQ, the conclusions and findings were the same as those of the Board and as a result, the ATQ upheld the Board’s decision and dismissed the urologist’s recourse. The ATQ noted that a Board of Directors can decide not to renew the privileges of a physician who demonstrates behavioural problems: [Translation] Indeed, the renewal of the appointment, status and privileges of a physician working in a hospital is not automatic. This requires a broad analysis where, in particular, the credentials committee and executive committee of the Council of Physicians, Dentists and Pharmacists make recommendations to the Board of Directors regarding the physician’s behaviour and recurring conduct and attitudes, as contemplated in the ARHSSS.3 The ATQ also pointed out that collaboration is an essential component of the proper organization of the care services provided in a hospital: [Translation] Over the years, his contentious attitude and particularly his intransigence in the positions he has taken, notably with respect to “the scope of his obligations”, have completely undermined the confidence his colleagues and the employees at the hospital have in him, whereas collaboration, support and teamwork are essential in a hospital context to ensure the provision of quality care services to the patients.4 Finally, the ATQ stated that the urologist’s observed conduct fell short of the conduct expected from a physician practising in a health institution: [Translation] (…) the applicant remains insensitive to the expectations in his workplace, as well as the signals from his colleagues, the nursing and hospital staff, and the administrators. His behaviour does not change and it has proven impossible to adapt the applicant’s practice to the institution’s operations. In fact, the applicant’s behaviour is not in keeping with the values in this field and one of the missions of the CSSS, namely, to promote the effective and efficient provision of health and social services in a manner that respects the rights of the users of these services.5 Application for judicial review in the Superior Court of Québec Following the ATQ’s decision, the urologist brought an application for judicial review before the Superior Court on the grounds that the ATQ did not provide sufficient reasons for its decision. The urologist also claimed that the ATQ improperly assessed the criteria applicable to the refusal to renew his privileges and that this constituted a disproportionate sanction in light of the evidence submitted at the hearing. After reviewing the file, the Court found that there was sufficient relevant evidence of the physician’s inappropriate conduct to justify the non-renewal of his privileges. The Court also found that the ATQ’s decision intelligibly identified the complaints on which its refusal to renew was based. Indeed, the physician’s conduct was extremely welldocumented. The evidence as a whole also demonstrated the various attempts that had been made to resolve the recurring problems caused by the urologist’s inappropriate conduct. Finally, the Court noted that the refusal to renew practice privileges based on a physician’s conduct is a measure that is specifically contemplated in the Act respecting health services and social services:6 [Translation] In this case, based on the criteria applicable to a refusal to renew the appointment of a physician, the Court is of the view that the ATQ reasonably concluded that the applicant’s claim seeking the reinstatement of his rights and privileges as a specialist in urology should be dismissed. Section 238 ARHSSS stipulates as follows: […] An application for the renewal of an appointment may be refused by the Board of Directors only on the basis of criteria of qualifications, scientific competence or conduct of the physician or dentist, having regard to the specific requirements of the institution, and fulfilment of the obligations attached to the enjoyment of the privileges granted. […] This is in fact what the ATQ analyzed, i.e. the physician’s conduct in light of the third party’s specific requirements. The Court should not substitute its own judgment for the judgment of the ATQ on this point. It should only assess whether the ATQ’s decision, in the context of the facts and evidence submitted before it, was reasonable in light of the legal framework applicable to the refusal to renew, as cited above.7   T.T. c. Tribunal administratif du Québec, 2017 QCCS 2394 (hereinafter “T.T. v. TAQ”).. T.T. c. CSSS A, 2014 QCTAQ 07132. Ibid, para. 208. Ibid, para. 213. Ibid, paras. 255 and 256. CQLR, c. S-4.2. T.T. v. TAQ, préc., note 1, paras. 46 to 48.

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  • A physician refusing to follow a professional training course constitutes sufficient ground for an establishment to refuse to renew the physician’s status and privileges – TAQ confirms its decision

    On March 29, 2017, the Tribunal administratif du Québec issued a decision1 (the “TAQ2 decision”) reviewing one of its own judgments (the “TAQ1 judgment”)2 which had confirmed the decision of a health establishment not to renew the privileges of a physician who had refused to follow a professional training course.3 The application for review had been introduced by the physician on the ground that the tribunal, in the context of the TAQ1 judgment, would have entirely ignored the fact that she suffers from a disability. In this respect, the physician was maintaining that the existence of her disability had been raised at the hearing by referring to the term “discrimination” used in the TAQ1 judgment: [TRANSLATION] [172] It is not sufficient to establish a difference of treatment to conclude that a form of discrimination or unjustified distinction exists. It is important to analyze the situation on the basis of the nature and field of the medical activities that the physician will be called upon to carry out in respect of the obligations related to the professional privileges granted.4 In the context of the TAQ2 decision, the tribunal, called upon to determine whether the TAQ1 judgment was vitiated by a determining error because that it failed to deal with the issue of discrimination based on a physical disability and the resulting duty to accommodate, dismissed the physician’s application, thus upholding the TAQ1 judgment. In the light of the evidence, the tribunal, in the TAQ2 decision, concluded that the argument involving discrimination on the basis of a physical disability had never been raised at the first hearing, quite the contrary: [TRANSLATION] [36] It is noted in TAQ2 that the evidence submitted in the context of TAQ1 on the physical condition of the applicant is to the effect that her condition did not limit her in carrying out her clinical activities. The applicant never raised in TAQ1 or before the medical bodies that she refused to complete the required training because of her physical limitations. [37] The fact that the word “discrimination” was used in paragraph 172 of the decision is not sufficient to conclude that the issue of discrimination based on the physical disability of the applicant has been raised and argued. [38] Replaced in its context, one understands that the word “discrimination” is used in response to the applicant’s arguments to the effect that the training she was required to undergo was not required of another physician of the clinic of genic medicine taking into account his specializ [39] This panel cannot allow the applicant to introduce new arguments at the stage of the application for review.5 In the TAQ2 decision, the tribunal therefore concluded that it is normal for the TAQ1 judgment not to have dealt with the issue of discrimination since it was only raised at the stage of the application for review, not in the first instance. In the final analysis, the decision made in the TAQ1 judgment confirming the non-renewal of the privileges of the physician who had refused to undergo training was “sufficiently justified, clear and logic”.6 Balicki c. Centre hospitalier de l’Université de Montréal, 2017 QCTAQ 03466 (hereinafter the “TAQ2 decision”). Balicki c. Centre hospitalier de l’Université de Montréal, 2015 QCTAQ 08321 (hereinafter the “TAQ1 judgment”). Thibeault, Charles Olivier, “A physician’s refusal to undergo refresher training is sufficient grounds for a health institution to deny the renewal of status and privileges”, Lavery Health Law, newsletter No. 5, September 2015. TAQ1, prec., note 2, para. 172. TAQ2, prec, note 1, para. 36 to 39. Id., para. 42.

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  • Health-care institutions: What is your responsibility when your are faced with a harassing and disruptive visitor?

    Last June 16, the Superior Court of Québec1 rendered a safeguard order in an injunction proceeding in favour of a health-care institution the purpose of which was to set conditions for the visits of the daughter of a user of the institution who was an incapable person lodged there, as well as her interactions with the user and the staff. In this case, the daughter was in profound disagreement with all of the decisions made by the persons with power of attorney over the person and property of the user, namely, her two other children, regarding the choice of her place of lodging and the care that was to be provided to her. During her daily visits, this person acted aggressively toward the care workers, going so far as to enter into the nurses’ station, placing herself in front of the door to prevent them from going out, yelling at them, and following them outside the institution. Also, she ignored the care plans set up by the institution’s multidisciplinary team for the user’s health and prevented the care from being adequately provided to her, jeopardizing her health and safety. Despite the attempts of the health-care institution’s management to reach an agreement with this person to set guidelines for her visits and ensure that she complied with precise rules of conduct (e.g.: not interfere with the care, not intimidate the employees), she did not change her behaviour. The situation became intolerable and unmanageable for the clinical staff and the managers involved. Given the circumstances, it became necessary for the health-care institution to file an application for a permanent injunction seeking a safeguard order due to the urgency of the situation. To decide on the application for a safeguard order, judge Lise Bergeron of the Superior Court had to weigh the visiting rights of the user’s child, the user’s right to receive care in a safe environment (s. 100 of the Act respecting health services and social services) and the employees’ right to work in an environment free from harassment (s. 81.19 of the Act respecting labour standards). In her analysis, judge Bergeron held that where a person’s visits are preventing a health-care institution from fulfilling the obligations imposed on it by law by placing a user in a risky situation and exposing its employees to harassment, the court is justified in considerably restricting the visiting rights of such person, imposing strict rules on them, and authorizing an institution to implement the necessary measures to ensure they are complied with. Consequently, judge Bergeron ordered the beneficiary’s daughter to: refrain from being within the property limits of the institution except for authorized visits to be held on Wednesdays from 1:00 p.m. to 3:00 p.m., under the supervision of a security guard; go to the nurses’ station upon her arrival for and departure after her authorized visits; abide by the care plan put in place by the institution for the patient; not interfere with the care provided to the patient; and not communicate with the institution’s employees, except in a situation requiring the urgent intervention of such a person. To prevent such a situation from becoming intolerable for the users and staff members, a health-care institution must take prompt action against a person who displays disruptive behaviour by implementing clear, justified and documented control measures while prioritizing the user’s rights. Centre intégré universitaire de santé et de services sociaux de la Capitale-Nationale (CIUSSS) c. J.D., 2016 QCCS 2858.

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  • Three important rulings rendered in 2015 by the Tribunal administratif du Québec regarding attending physicians

    Over the past year, the Tribunal administratif du Québec (TAQ) has issued several rulings dealing with oversight of the medical practice of professionals working in health and social services institutions. Several of these rulings will be of interest to institutions since they set out principles that tend to confirm the existence of a form of management rights over physicians, despite the lack of the traditional relationship of subordination between such institutions and their physicians. A physician’s refusal to take a refresher course is a sufficient reason for the institution to refuse to renew his status and privileges1 In a decision rendered on August 18, 2015, the TAQ upheld an institution’s decision not to renew the status and privileges of one of its physicians after he refused to take a refresher course to acquire the competencies necessary to his new functions. In this case, the department head had required that the physician take the refresher course so as to enable him to return to clinical practice after having previously devoted his practice exclusively to research work. In its ruling, the TAQ set out several principles that are essential to a good understanding of the internal functioning of institutions and the process for renewing a physician’s status and privileges, specifically: In the context of managing a medical service, the institution may require a physician to take a refresher course to acquire the competencies necessary to his practice; The physician’s professional privileges are not vested rights; The process for renewing a physician’s status and privileges set out in section 238 of the Act Respecting Health Services and Social Services2 is an administrative matter, distinct from the disciplinary process provided for in section 249 of the same statute. As for the review that the TAQ must conduct where a non-renewal is contested, the TAQ noted, in particular: That it must assess whether the physician’s situation justified the Board of Directors’ decision not to renew the physician’s privileges in light of the specific requirements of the institution; That it sits de novo and is therefore not limited to the facts originally at issue in the decision of the institution’s Board of Directors. Teaching: an obligation of physicians practising in a university hospital centre3 In a ruling rendered on April 30, 2015, the TAQ upheld the decision by the Board of Directors of a university hospital centre which refused to renew the status and privileges of a physician who failed to fulfill the obligations associated with the enjoyment of those privileges. At the outset, it should be noted that the clinical skills of the applicant were not at issue in this case, rather, it was the applicant’s behaviour towards teaching that was problematic. The TAQ found that the physician had always been properly informed of the complaints made against him in the area of teaching, but he had chosen to ignore them, deny they had any basis, and stubbornly refused to act upon the recommendations made to him, while employing an attitude of defiance and clearly seeking to place the blame on others. Thus, despite the numerous chances afforded to the physician, he had demonstrated very little improvement or interest. Accordingly, the institution had no other option but refuse to renew his status and privileges. The suspension of privileges imposed on a physician must be served despite the right of appeal4 In a ruling rendered on February 23, 2015, the TAQ refused a request made by a physician to grant a stay of the enforcement of a resolution adopted by a hospital imposing a suspension of her status and privileges for one month. The physician, a general practitioner with obstetric privileges at a health and social services centre, had a solo practice and delivered babies of the patients she followed. The TAQ found that the physician would suffer no different or greater prejudice than that inherent in the application of the sanction itself. In addition, the physician had not shown that she would suffer serious and irreparable harm given that, in the Tribunal’s view, the financial prejudice she would suffer was quantifiable and not irreparable. As for the prejudice suffered by the patients, the institution would be able to remedy any harm since they would be cared for by other physicians in the department in accordance with the normal procedures in place for replacing the applicant when she was away on vacation or at a conference.   A. c. Centre Hospitalier A*, 2015 QCTAQ 08321 (application for internal review). CQLR, c. S-4.2. R.A. c. Centre Hospitalier A*, 2015 QCTAQ 041038 (requête en révision, 2015-06-04 (C.S.) 500-17- 088761-153). N.F. c. CSSS A, 2015 QCTAQ 02780.

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  • A physician’s refusal to undergo refresher training is sufficient grounds for a health institution to deny the renewal of status and privileges

    On August 18, 2015, the Tribunal administratif du Québec (TAQ) confirmed the decision of a health institution to not renew the status and privileges of one of its physicians after he refused to undergo refresher training to acquire skills that were necessary to perform his new duties.1 The physician in question, a hematology specialist, had been hired as a researcher several years ago. At the time, he had been unable to obtain privileges in the hematology service but privileges had been granted to him in the medical genetics service. The physician exclusively devoted his practice to his research work for many years. Although he had privileges in the medical genetics service, he did not participate in clinical practice in any way. This situation, although imperfect, was nonetheless tolerated by the institution, which considered that the physician had to have status and privileges in good standing within the institution in order to pursue his research work there. Gradually, the physician found himself unable to renew the financing related to his research work, up until the time when his work ceased completely. He therefore decided to reorient his career toward clinical practice. Considering that he had privileges in the medical genetics service, the chief offered for him to join the medical genetics clinic to perform clinical follow-up of patients at risk of developing breast or ovarian cancer. Since the physician lacked supporting, relevant clinical experience, the chief asked him to undergo refresher training relating to the breast and gynecological examinations that were required as part of the follow-up of these patients. His integration into the medical genetics clinic was conditional upon successfully completing the training. The physician refused to undergo the refresher training. The chief had the head of department and the director of professional services intervene. Despite discussions and negotiations spanning over several months, the physician persisted in refusing to undergo refresher training. Given the stalemate and the fact that the physician no longer conducted any activities at the institution, the head of department took steps internally in order for the physician’s status and privileges to not be renewed. In its decision, the TAQ lists several elements that are essential to a good understanding of the inner workings of health institutions and the process for renewing the status and privileges of physicians, including: that an institution, as part of managing a medical service, may require a physician to undergo refresher training to acquire skills necessary to his or her practice; the fact that the professional privileges of a physician do not constitute acquired rights; that the process for the renewal of the status and privileges of a physician pursuant to section 238 of the ARHSSS2 is an administrative issue that must be distinguished from the disciplinary process under section 249 of the same statute. With respect to the review that the TAQ must conduct in the case of a contested non-renewal, the TAQ adds, in particular, that: it must assess whether the situation of a physician justified the board of directors to not renew his or her privileges, taking into account the specific requirements of the institution; it sits de novo and therefore is not limited by the facts originally presented in the decision of the board of directors of the establishment. With respect to the de novo trial which the TAQ must conduct, in this case, the TAQ authorized the RAMQ to file the physician’s billing for the preceding years, despite the physician’s opposition. This request, made by counsel for the institution, aimed to conclusively demonstrate to the TAQ that the physician did not possess the necessary experience to follow the patients of the medical genetics clinic. The analysis of this new evidence by the TAQ left little doubt as to whether the refresher training was necessary in the circumstances. The non-renewal of the status and privileges of the physician was therefore confirmed by the TAQ. This decision will be final unless contested by the physician through judicial review proceedings, which have not yet been undertaken.   2015 QCTAQ 08321. An Act Respecting Health Services and Social Services, CQLR, c. S-4.2.

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