Paula Trattner, Aislinn E. Reid, Hannah Kingdom
Apr 27, 2020
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A recent Divisional Court decision provides reassurance for Ontario hospitals regarding their management of operations and resources during the ongoing COVID-19 pandemic. In Sprague v Her Majesty the Queen, the Court reinforced the ability of hospitals to manage their resources and to implement policies supporting patient safety and quality of care, and recognized the “enormous expertise and specialized knowledge” of hospitals in making decisions of an operational nature.
On April 17, 2020, the Divisional Court released its decision in Sprague, an urgent application brought on behalf of Mr. Sprague, a patient admitted to the Critical Care Unit (CCU) of a Toronto-area hospital. The applicant is the substitute decision-maker for personal care for Mr. Sprague, his father.
The applicant sought judicial review of revisions to the hospital’s visitor policy as a result of COVID-19, as well as the Chief Medical Officer of Health (CMOH) for Ontario’s March 19, 2020, Memorandum to hospitals regarding visitors at acute care settings [PDF] (the CMOH Memorandum). The CMOH Memorandum recommends that hospitals allow only “essential visitors” and provides guidance as to which visitors are “essential.”
Following the CMOH Memorandum, on March 20, 2020, the hospital revised its visitor policy effective immediately to prohibit visitors, with certain exceptions (the Visitor Policy).
The applicant alleged that the Visitor Policy and the CMOH Memorandum violated his father’s rights under the Canadian Charter of Rights and Freedoms (the Charter).
The Court found that neither the Visitor Policy nor the CMOH Memorandum were subject to judicial review, and that there was no violation of Mr. Sprague’s rights under the Charter.
Mr. Sprague was admitted to the hospital from long-term care in March. Along with the majority of those in the hospital’s CCU, Mr. Sprague is considered particularly vulnerable to COVID-19. The applicant conceded that there were no concerns with the quality of his father’s care at the hospital, and that his father receives supplementary care from a privately hired personal support worker at the hospital three to four times per week despite the Visitor Policy.
The Court recognized that in revising the Visitor Policy, hospital management “considered the available information, recommendations and guiding principles set out by the CMOH, visitors’ policies from other hospitals in the greater Toronto area, and expert input,” and weighed the risks of COVID-19 versus the benefits of visitors. The hospital identified two central considerations: minimizing non-essential contact with those in the community and maximizing the availability and use of the hospital’s physical (e.g., personal protective equipment (PPE) and ventilators) and human (e.g., health care providers and administrative staff) resources.
No judicial review
The Court held that judicial review was not available for either the Visitor Policy or the CMOH Memorandum.
In concluding that the Visitor Policy did not involve the exercise of a statutory authority and did not have “sufficient public character” for judicial review to be available, the Court made the following key findings with respect to the decision-making authority of hospitals:
- The fact that a decision impacts a broad segment of the public does not necessarily mean that judicial review of the decision is available. Although the Visitor Policy affects the public, a hospital’s authority to implement the Visitor Policy is derived from its authority as an owner/occupier to control access to its premises and to protect its patients and staff.
- There is no statutory duty upon hospitals to provide general and uninhibited access to their premises or to visitors.
- While the CMOH Memorandum influenced the Visitor Policy, it is not binding on the hospital. The hospital customized the CMOH recommendation to its particular circumstances and patient population.
- The public regulation of hospitals under the Public Hospitals Act does not include access to hospital premises or visitor policies.
No Charter violation
The Court also found that neither the Visitor Policy nor the CMOH Memorandum violated Mr. Sprague’s rights under the Charter.
The Visitor Policy is based on medical and public health expertise, which demonstrates that older adults and those with comorbidities are more severely impacted by COVID-19. The Court determined that neither the Visitor Policy nor the sample exceptions to it were discriminatory: they are not arbitrary but rather based on medical knowledge and expert judgment. The CMOH Memorandum was also found not to be discriminatory: patients with “essential visitors” are a heterogeneous group with no common personal characteristics. The Court agreed with the hospital that any deprivation of Mr. Sprague’s security of the person would be in accordance with the principles of fundamental justice, as the Visitor Policy is not arbitrary, overbroad or grossly disproportionate.
Considerations for hospitals and other providers
Hospitals should be reassured by the Court’s commentary in Sprague that it would not attempt to “re-weigh” the “complex and often difficult factors, considerations and choices that must be evaluated by a hospital administration during a pandemic.” The Court recognized that hospitals have “enormous expertise and specialized knowledge” in exercising their discretion around administrative issues during a pandemic, and that “significant deference” must be afforded to the hospital in the circumstances.
The Court’s comments apply beyond the current pandemic. Spague confirms that decisions made by hospitals in good faith and based on considerations of the best available evidence (to, for example, restrict visitors or implement no trespass orders) will not be successfully challenged.
In developing and continually reassessing their operations and policies in light of the ongoing COVID-19 pandemic, hospitals should:
- continue to follow updates from the CMOH, and customize recommendations to their particular circumstances;
- continue to consider the best available clinical evidence; and
- consider the specifics of their physical and human resources, as well as their patient population.
In our view, similar visitor policies implemented at long-term care and retirement homes would be upheld. Long-term care homes bear many similarities to public hospitals. Retirement homes are private entities. In light of the ongoing COVID-19 pandemic, it is reasonable for both long-term care and retirement homes to limit and even prohibit visitors. Although arguments may be advanced by residents or family members that tenancy rights apply (e.g., that a restrictive visitor policy is contrary to the resident/tenant’s right to reasonable enjoyment), it is highly unlikely that these will be successful, given past precedent and the significant risks posed by the COVID-19 pandemic to older adults.
 Sprague was the first virtual hearing held by the Divisional Court during the COVID-19 pandemic,