THE LAW * LE DROIT

Mandatory reti*reinent ruling coul have

far-reaching implications for doctors

Judith Bedford-Jones, RN, BA, LLB T he Supreme Court of Canada has just ruled that mandatory retirement at age 65 is justifiable discrimination under the Canadian Charter of Rights and Freedoms. Canadian physicians, even those a long way from retirement age, should be aware of the impact the ruling may eventually have on their admitting privileges. (See LeBourdais E: Supreme Court's VGH ruling looms, but so may other manpower battles. Can Med Assoc J 1990; 142: 248-250.) One of the four concurrent judgements issued Dec. 6, 1990, concerned a Vancouver General

Hospital (VGH) staff regulation requiring all physicians to retire at age 65. Simply put, the court found the regulation constitutional and even though the ruling involves one facility, it now applies to every hospital in the country.

The case involved a VGH policy that all physicians must retire on their 65th birthday unless it could be proved that they "had something unique to offer the hospital." It had been approved by the Vancouver GenerJudith Bedford-Jones is the CMA 's assistant director of medical ethics and legal

affairs. 210

CAN MED ASSOC J 1991; 144 (2)

imply put, the court found the mandatory retirement regulation constitutional and even though the ruling involves only one facility, it now applies to every hospital in the country.

al's Board of Trustees and by the provincial Ministry of Health, as required by provincial statute. The hospital had decided not to renew admitting privileges of most of the affected doctors. In all, about 50 of the VGH's 450 physicians had been affected when the court case began in 1985, and 14 of them banded together to launch the action. They received financial support from both the CMA and British Columbia Medical Association. In its four to three decision, the Supreme Court ruled that because the Vancouver General is not part of government, and since the charter binds only government, the hospital's actions in adopting and administering the mandatory retirement regulation do not fall under the charter's gaze.

The court also decided that the government's role in effecting the regulation was merely supervisory because hospitals exercise a large degree of autonomy when it comes to internal management.

The court ruled that a "more direct and more precisely defined connection" to government would have to be found for the charter to

apply, even though: * hospital bylaws require ministerial approval; * the Ministry of Health has the power to appoint 14 of the Board of Trustees' 16 members; * health care and hospital services are an important part of provincial governments' legislative mandate; * governments fund hospital services.

In the court's words, "the

provision of a public service, even if it is one as important as health care, is not the kind of function which qualifies as a governmental function" under the charter. Having made this initial determination, the court discussed what it would have decided had it found that the hospital was subject to charter scrutiny. It held that the mandatory retirement regulation was indeed discriminatory under section 15 of the charter, but that the discrimination would be justified because the regulation and its associated use constitute a reasonable limit under section 1 of the charter. Discrimination is justified, the court said, because the promotion of excellence at the Vancouver General - it is a major research and teaching centre and is British Columbia's major acute care hospital - is sufficiently important as a fundamental objective to warrant overriding a constitutionally protected guarantee. Further, the court found that the policy was rationally connected to this objective because it

ensured that staff positions would regularly become available for younger physicians. Because the regulation seeks to strike a balance between two competing social groups in the face of budgetary and other resource restraints, the hospital board was justified in concluding that the ability to bring new doctors on staff depended on the timely retirement of those already there. The ruling has a number of real and potential implications for physicians and hospitals. Because it comes from the Supreme Court of Canada, it will apply to every hospital in the country. Unless otherwise precluded by provincial legislation, hospitals may now work individually to formulate and implement policies on mandatory retirement. If a hospital already has such a -policy in place, physicians will be expected to retire at the mandated age and there will be no need for assessment of health or competency on an individual basis. As well, physicians seeking renewal of hospital admitting privileges will be unable to seek

protection from age-based discrimination under provincial human rights legislation because they are not hospital employees. Although any predictions made at this point are speculative, the ruling may have implications beyond the narrow issue of mandatory retirement. Of particular concern is the court's pronouncement that the Vancouver General was not exercising a "governmental" function when it adopted and administered its mandatory retirement regulation. This finding seems anomalous in light of the state's tight control over hospitals and over the provision of health care services in general. Further, the door would now appear open for a future court to find that other hospital activities are not subject to charter scrutiny. Finally, while the Supreme Court decision would not directly justify a government decision to withhold physician fees, it will accomplish this indirectly because hospital admitting privileges may be necessary for a physician to continue to practise and to earn a livelihood.

Good practice management can keep doctors out of court Orville J. Messenger, MD, FRCSC Jane M. Hadley, MD, CCFP W r e have written this arti- of the lawsuits brought against x cle because lawsuits and physicians can be traced to failcomplaints against phy- ures in communication. We have sicians can often be traced to defi- divided our recommendations ciencies in practice management, into six major areas, but the comnot to poor medical diagnosis or mon thread in all of them is clear treatment. For instance, studies and effective communication. Athave shown that as many as 75% tention to the recommendations made here will improve overall Orville Messenger is assistant secretary- communication and patient care, treasurer of the Canadian Medical Protec- and therefore reduce liability risk tive Association. Jane Hadley is assistant professor, Department of Family Medicine, in the physician's office. We hope this presentation, based on case University of Ottawa.

files at the Canadian Medical Protective Association (CMPA), will heighten doctors' awareness of practice management problems. Physicians who employ nurses and receptionists are responsible in law for their work, so the education of office' staff is of primary importance. In fact, should an incident arise and a lawsuit be brought because of work in a doctor's office, the physician is usually personally named CAN MED ASSOC J 1991; 144 (2)

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Mandatory retirement ruling could have far-reaching implications for doctors.

THE LAW * LE DROIT Mandatory reti*reinent ruling coul have far-reaching implications for doctors Judith Bedford-Jones, RN, BA, LLB T he Supreme Cou...
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