Administrative law – Physicians and surgeons – Hospital privileges – Health authorities – Statutory powers – Delegated authority – Settlements – Validity – Judicial review – Compliance with legislation – Jurisdiction – Procedural requirements and fairness
Horne v. Capital District Health Authority,  N.S.J. No. 85, Nova Scotia Supreme Court, February 23, 2005, D. Hall J.
Dr. Horne was employed as an assistant professor of medicine in the Dalhousie University Faculty of Medicine. She was also a staff cardiologist at Queen Elizabeth II Health Sciences Centre (the “Q.E. II”). Dr. Horne had hospital privileges at the Q.E. II which enabled her to work at the Congestive Heart Failure Clinic and the Adult Congenital Heart Clinic. There had been conflicts and problems in the Cardiology Division of the Q.E. II involving Dr. Horne. On October 21, 2002, Dr. Cowden, head of the Department of Medicine in the Faculty of Medicine at Dalhousie University and also District Chief Department of Medicine of Capital Health, wrote to Dr. Horne expressing concerns with her lack of collegiality and the effect of her conduct on patient safety. Dr. Cowden advised Dr. Horne of a variation in her hospital privileges, including the reallocation of her clinical duties to cease participation in clinical services.
As required by section 8 of the Medical Staff (Disciplinary) By-laws, the District Medical Advisory Committee (the “District MAC”) was advised of the variation of privileges. The District MAC completed an investigation and submitted its report and recommendations to the Privilege Review Committee (the “PRC”). At all times, the District MAC and the PRC maintained that only the Board of Capital Health had authority to grant or vary hospital privileges of a physician after the process provided in the Medical Staff By-laws had been complied with.
Negotiations continued with respect to Dr. Horne’s privileges. The matter was not resolved, and in an effort to bring the dispute to a conclusion, counsel for the parties arranged for a mediator to assist the process. At the end of the mediation, the parties present reached an agreement on the appropriate disposition of the matter. This was signed by Mr. Donald Ford, CEO and President of Capital Health. The District MAC and PRC were kept informed of these developments. Disagreements arose with respect to certain aspects of the settlement agreement, and ultimately Dr. Horne initiated an application to obtain a declaration that the settlement reached at mediation was binding on the parties.
The court first reviewed the question of whether the CEO had actual authority to enter into an agreement on behalf of Capital Health. The court reviewed the applicable legislation and found that the Board and the Board alone had the authority and obligation to make a final decision on such matters as variation of a physician’s hospital privileges. Therefore, the court concluded that the CEO had no authority under the statutes and by-laws to grant, revoke or vary medical staff privileges.
The court then reviewed the issue of whether the Board had the power to delegate its authority to appoint members to the medical staff and fix the terms of their hospital privileges. The court noted that the legislation provided that the Minister delegated authority respecting medical staff privileges to the Board. The court applied the maxim delegare non potest delegare (a delegate cannot delegate) and held that the Board, being itself a delegate, did not have the power to delegate its authority over medical staff privileges to the CEO. The court further found that there was no evidence that the Board specifically authorized the CEO to negotiate a settlement on behalf of the Board in this instance.
The court held that the CEO did not have the ostensible or apparent authority to negotiate the settlement and bind Capital Health. In this case, no representation ever came from the Board to the effect that the CEO was authorized to negotiate settlements respecting privileges. In fact, the PRC and its counsel had written to the parties providing notice to all parties participating in the mediation that there may be a question as to the authority of the CEO to negotiate a final settlement on behalf of Capital Health.
In the result, the court held that Capital Health was not bound by the agreement reached at mediation between Dr. Horne and the CEO of Capital Health. Dr. Horne’s application was dismissed.
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