In Bartolucci v. St. Joseph’s Care Group, the Human Rights Tribunal of Ontario recently dismissed a physician’s allegations of discrimination with respect to employment on the basis of age.
Background
The applicant, Dr. Bartolucci, was a psychiatrist in practice at the respondent hospital, St. Joseph’s Care Group (the Hospital). At the relevant time, he was both a hospital employee and a member of medical staff with active staff privileges. In 2018, concerns were raised about the quality of care provided by Dr. Bartolucci. The Hospital advised him that it would investigate these concerns. The Hospital prepared an oversight plan, consisting of direct clinical observation by other psychiatrists, chart reviews and case discussions. The Hospital also retained an external expert to conduct a formal review. Over the course of the investigation, Dr. Bartolucci resigned from his employment and resigned his privileges.
Dr. Bartolucci then brought an application (under s. 34 of the Human Rights Code) alleging discrimination with respect to employment based on age. He alleged that the concerns about his competence, the investigation into these alleged concerns, and the Hospital’s report to the College of Physicians and Surgeons of Ontario (CPSO) amounted to age discrimination. He also alleged that these actions by the Hospital forced him to withdraw his privileges and resign his employment.
The hospital engaged in an evidence-based process to investigate quality of care concerns
The Hospital’s Chief of Staff testified on behalf of the Hospital that part of his duties as Chief of Staff are to supervise professional staff and to ensure quality of care and patient safety. He testified that he relies on senior management, such as Senior Medical Directors for each program, to identify and report issues regarding professional practice. The Tribunal accepted the evidence of the Chief of Staff and Senior Medical Director, and found that the Hospital was obliged to investigate quality of care concerns and competency concerns when they arose to ensure that Dr. Bartolucci could continue to meet the required standard of care. The Tribunal found that the oversight plan implemented by the respondents in this case “appeared to be well structured and rationally connected to the goal of identifying issues to be addressed in the applicant’s practice”.
The Tribunal determined that the respondents “engaged in an evidence-based process to assess the applicant’s actual abilities or deficiencies” and did not make assumptions about the applicant’s age. It is important to note that the respondents did not make decisions about the applicant’s practice and his contract of employment because of his age or the “characteristics stereotypically attributed to older people” that were the catalyst for concerns being raised about the applicant’s practice.
As a separate issue, the applicant alleged that the Hospital began investigating his practice when he refused to provide a retirement date or engage in succession planning. Again, the Tribunal again preferred the evidence given by the respondents. The Senior Medical Director of the Hospital’s Mental Health and Addictions Program testified that recruitment and retention of physicians within the program is a significant part of his role. His practice is to have discussions with all physicians about their career plans to ensure that the Hospital could fill its mental health services plan. He acknowledged that he did initiate succession-planning discussions with Dr. Bartolucci to ensure that they could integrate other physicians into the program.
The Tribunal accepted that “succession planning is an important part of the [Senior Medical Director’s] duties and necessary to ensure the Hospital is properly staffed.” The Tribunal rejected the applicant’s evidence that the review of his practice was initiated by the Hospital because he refused to retire or engage in succession planning.
Takeaways
Hospitals have a duty to investigate quality of care concerns. While investigating these concerns, hospitals should follow an evidence-based process to assess abilities or deficiencies in practice.
It is appropriate for hospitals to engage in succession planning to ensure proper staffing levels within the hospitals’ programs. Career planning discussions do not in and of themselves constitute discrimination based on age.
