Health Industry Review

November 2008

Legislative Updates

Proposed Amendments to Coroners Act Reflect Goudge Inquiry Recommendations

Bill 115, An Act to amend the Coroners Act, received first reading on October 23, 2008. The Bill reflects the findings and recommendations contained in the report of Justice Stephen Goudge, the commissioner of the Public Inquiry into Pediatric Forensic Pathology. (See www.goudgeinquiry.ca for more information.)

In the wake of the finding that Dr. Charles Smith, former director of the Ontario Pediatric Forensic Pathology Unit, had made serious errors in 20 of 45 suspicious deaths over a 10-year period, the Inquiry was charged with conducting “a systemic review and an assessment of the policies, procedures, practices, accountability and oversight mechanisms, quality control measures and institutional arrangements of pediatric forensic pathology in Ontario from 1981 to 2001.” Issued on October 1, 2008 Justice Goudge’s Report included 169 recommendations intended to “restore and enhance public confidence in pediatric forensic pathology in Ontario and its future use in the criminal justice system.”

The Bill also proposed a number of changes to the Coroners Act (the Act) including:

  • Inclusion of definitions for “forensic pathologists” and “pathologists” stipulating that these individuals must be physicians certified by the Royal College of Physicians and Surgeons of Canada (RCPSC) in the appropriate specialties or have received equivalent certification in another jurisdiction;
  • Creation of the Ontario Forensic Pathology Service to oversee the provision of pathologist services;
  • Appointment of a Chief Forensic Pathologist and Deputy Forensic Pathologists with an oversight role for pathologists and pathology services;
  • Creation of a register, to be maintained by the Chief Forensic Pathologist, of pathologists available to provide services under the Act;
  • Creation of a Death Investigation Oversight Council to oversee the Chief Coroner and Chief Forensic Pathologist. The Council would advise and make recommendations on financial resource management, strategic planning, quality assurance, performance measures and accountability mechanisms, appointment and dismissal of senior personnel, compliance with the Act and regulations, and any other matter that is prescribed;
  • Creation of a complaints committee for the Oversight Council. Any person would be able to make a complaint to the committee about a coroner, a pathologist or a person (other than a coroner or pathologist) with powers or duties under section 28 of the Act, which deals with post-mortem examinations;
  • Review of complaints about pathologists by the Chief Forensic Pathologist; review of complaints about coroners by the Chief Coroner; and review of complaints about persons with powers or duties regarding post-mortem examinations by an appropriate person. The complaints committee would also be able to refer the matter to the College of Physicians and Surgeons of Ontario (CPSO) or another person or organization that has power to deal with the complaint if the committee is of the opinion that it would be more appropriate to do so. Persons unhappy with a review could request review of the complaint by the complaints committee;
  • Clarification of the purpose and scope of the coroner’s investigations. The coroner would be required to investigate as he or she deemed necessary in the public interest to determine whether an inquest is required and, if so, to determine the questions to be answered by the inquest, and to collect and analyze information to prevent similar deaths;
  • Rendering inquests mandatory for deaths of persons detained by or in the custody of a peace officer or in a correctional facility, lock-up or other place of secure custody, only if the coroner is of the opinion that death was due to unnatural causes;
  • The repeal of provisions authorizing the Solicitor General to direct a coroner to hold an inquest or appoint a commissioner to hold an inquest, and the transfer of certain powers to call an inquest from the Solicitor General to the Chief Coroner;
  • Permitting the coroner to simply hold an inquest without having to issue a warrant;
  • Requiring that the findings and recommendations of a coroner’s investigation be brought to the attention of the public or a segment of the public if the Chief Coroner reasonably believes this to be necessary in the interests of public safety; and
  • Imposing new reporting and record-keeping obligations where a coroner deems an inquest to be unnecessary.

Apology Act Referred to Standing Committee on Justice Policy

On October 7, 2008 the Ontario government tabled Bill 108, An Act respecting apologies. The Bill has received first and second reading, and was referred to the Standing Committee on Justice Policy on October 23, 2008.

Introduced by Liberal MPP David Orazietti as a Private Member’s Bill in April 2008, the Bill will mean that an apology made by a person for any matter does not constitute an admission of fault or liability, or affect any insurance or indemnity coverage for any person regarding that matter. Further, an apology will not be considered when determining fault or liability.

In addition, evidence of an apology made by or on behalf of a person for any matter will not be admissible in any civil or administrative proceeding or arbitration as evidence of the fault or liability of any person regarding that matter. The Bill does not affect the admissibility of any evidence in a criminal proceeding or a proceeding under the Provincial Offences Act, or the use that may be made of a conviction for a criminal or provincial offence in a civil or administrative proceeding or arbitration.

The proposed legislation is important in an era of transparency and disclosure; it will allow hospitals and practitioners to not only disclose adverse events but also to offer an apology without incurring additional liability.

New Long-Term Care Regulations Announced

On October 27, 2008 the Ontario government announced new regulations applicable to long-term care homes. Although the wording of the regulations has not been made publicly available, our understanding is that the regulations will allow two residents to “swap” facilities, when a matching vacancy exists, through new criteria in the “exchange category” on the waiting list. First priority will be granted to residents seeking to be reunited with a spouse or partner, while second priority will be given to residents seeking admission to a long-term care home that better serves persons of their religious, ethnic or linguistic background.

The Ministry of Health and Long-Term Care (the Ministry) believes that these new regulations will improve patient flow through hospitals and reduce wait times by encouraging patients waiting for a bed in a long-term care facility to accept a bed in a home that is not their first choice, knowing that they may be able to switch facilities more easily down the road.

New Patient Safety Reporting Requirements Imposed Under Public Hospitals Act

Amendments to the Hospital Management regulation under the Public Hospitals Act filed in July 2008 impose new reporting requirements for patient safety indicators, including Clostridium difficile associated disease (CDAD).

Under the amendments, all Ontario hospitals will be required to disclose indicators of the quality
of health care provided by the hospital relating to the diagnoses of hospital-acquired infections, and activities undertaken by the hospital to reduce hospital-acquired infections and mortality. This information must be disclosed through the hospital’s website and any other means directed by the Minister of Health and Long-Term Care.

The following eight public reporting elements were announced earlier this year by the Ministry: CDAD, Hospital Standardized Mortality Ratio, Methicillin-Resistant Staphylococcus aureus, Vancomycin-Resistant Enterococci, surgical site infection, central line infection, ventilator-associated pneumonia and hand hygiene.

The reporting requirements will be rolled out in three stages, the first of which will be the reporting of CDAD. All Ontario hospitals are now required to publicly report on their own websites the rates of new nosocomial CDAD cases associated with the reporting facility, separately for each hospital site. The Ministry will also report these statistics on its website.

Amendments to Health Protection and Promotion Act Relating to Clostridium Difficile

New amendments to regulations made under the Health Protection and Promotion Act (HPPA) filed in August 2008 add Clostridium Difficile outbreaks in public hospitals to the list of reportable and communicable diseases for the purposes of the HPPA.

In addition, Regulation 569 (Reports) under the HPPA was amended to add a section that lists the information to be included in a report about a CDAD outbreak. This information includes:

  • the name and address of the hospital and contact person;
  • the agent of the disease;
  • the date the outbreak was first declared and date declared finished as well as the outbreak number;
  • the onset date of the index case and the last case;
  • the total number of cases;
  • the total number of deaths in cases associated with the outbreak during the outbreak period;
  • the disease control measures used to minimize the impact of the outbreak and prevent the spread of disease;
  • quantification of the population at risk for the disease in the entire hospital and in the affected area during the outbreak period;
  • the measures taken to monitor the hospital for signs and symptoms consistent with the outbreak in patients in the hospital; and
  • information about each case, including the date of admission and discharge, laboratory findings and investigatory tests, the onset date and clinical details of signs and symptoms, treatment, complications and outcome, the place where the disease was believed to have been acquired and risk factors for the disease.

Proposed Regulations Under Local Health System Integration Act Target Engagement of Aboriginal and Francophone Populations

The Ministry has published for public comment notices of two proposed regulations under the Local Health System Integration Act. Both proposed regulations are aimed at increasing community engagement in the integration process.

The first proposed regulation, published in the Ontario Gazette on July 26, 2008, establishes guidelines for local health integration networks (LHINs) for Aboriginal community engagement activities. If passed, the regulation would require each LHIN (or groups of two or more LHINs, if it is determined after consultation that a joint committee would adequately reflect the diversity of the Aboriginal communities and peoples served in their catchment areas) to establish a committee to represent the diverse Aboriginal peoples and communities within the LHIN’s geographic boundaries.

Each committee may include (as appropriate) First Nations, Inuit, Métis, representatives from on-reserve and off-reserve organizations, representatives of Aboriginal health service providers, and Aboriginal community and women’s organizations. The LHIN would engage the committee on health needs and priorities, as well as health service delivery issues affecting the local Aboriginal population. Each LHIN would be required to provide information on its engagement activities, including the content, frequency and format of such activities, in its annual report. Comments on this proposed regulation were accepted up to September 26, 2008.

The second proposed regulation, if passed, would require each LHIN (or groups of two or more LHINs if it is determined after consultation that a joint committee would provide adequate representation for the Francophone communities) to establish a committee to engage the Francophone community on the local health system. Published in the Ontario Gazette on September 13, 2008 the notice provides that members of the committee would be involved with organizations that are connected to the community, and in the planning and delivery of health care services in the area (e.g., community organizations, schools, universities, members of regulated health professions and health service providers).

In particular, the committee would provide advice to the LHIN on:

  • how best to engage the local Francophone community and stakeholders in local health system planning;
  • the health needs of the local Francophone community;
  • how to improve access, accessibility and integration of French language health services;
  • methods for taking into account the need to provide services to the Francophone community; and
  • identifying and designating health service providers for the provision of French language health services.

In its annual report, each LHIN would be required to report on the content, frequency and format of its Francophone community engagement activities, membership of the committee and fulfilment of the committee’s mandate. The Minister will consider comments on the proposed regulation until November 12, 2008.

Proposed Amendments to Ombudsman Act Extend Mandate of Ontario’s Ombudsman to Hospitals and Long-Term Care Facilities

A Private Member’s Bill to amend the Ombudsman Act to include hospitals and long-term care facilities in the Ontario Ombudsman’s mandate received first reading in the Ontario Legislature on June 5, 2008. Bill 89, An Act to amend the Ombudsman Act with respect to hospitals and long-term care facilities, would (if passed) extend the Ombudsman’s powers to review the decisions, recommendations, acts or omissions of government bodies to include public and private hospitals and long-term care homes. The proposed amendments would ensure that approved charitable homes for the aged or approved charitable institutions, homes or joint homes for the aged or rest homes, homes for special care, nursing homes and mental hospitals fell within the Ombudsman’s mandate.

The Ombudsman is an independent officer of the legislature whose mandate is to ensure “government accountability through effective oversight of the administration of government services.” (More information is available at www.ombudsman.on.ca.) The Ombudsman has the power to review and investigate any decision, recommendation, act or omission of a government body that affects a person in his or her personal capacity for which there is no right of appeal or objection to any court or tribunal, or for which all rights of appeal or objection have either been exercised or have expired.

Following an investigation, the Ombudsman has the power to report government decisions, recommendations, acts or omissions that are, in his or her opinion, contrary to law, unreasonable, unjust, oppressive, improperly discriminatory, based on a mistake of law or wrong, to the governmental authority in question as well as the relevant minister. A recommendation for steps to be taken (such as further consideration, rectification, cancellation or variance) or reasons provided are to accompany the report. If action is not taken within a reasonable time frame, the Ombudsman may make a report to the Premier and the Assembly.

The Ombudsman also has the power to refer matters to appropriate authorities in the event that he or she is of the opinion that there is evidence of a breach of duty or of misconduct by an officer or employee of a governmental organization. The decisions of the Ombudsman may not be challenged, reviewed, quashed or called into question in any court.

At present, the Ontario Ombudsman does not have oversight over entities in the “MUSH” sector, such as boards of education, public hospitals, nursing homes and long-term care facilities, municipalities and universities. In 2007-2008, the Ombudsman received 276 complaints about hospitals and long-term care facilities. At present, the Ombudsman only has the power to investigate or review a hospital when a provincial supervisor has been appointed.

The Ontario Ombudsman’s mandate has not been revised in over 30 years and has a much narrower scope than that of other provincial ombudsmen. According to the Ontario Ombudsman’s website, ombudsmen in all of the other provinces, as well as the Yukon, already have jurisdiction over public hospitals. The ombudsmen in Alberta, Québec, Newfoundland and Labrador, Nova Scotia and the Yukon also have jurisdiction over nursing homes and long-term care facilities.

Prior to the introduction of the Private Member’s Bill, the former Minister rejected calls to give the Ombudsman jurisdiction over hospitals, saying that infectious disease experts should be leading any such efforts. With the new Minister, David Caplan, in office, it will be interesting to watch the progression (if any) of this Bill.