Law & Governance

Law & Governance November -0001 : 0-0

Private Member's Bill Demands Transparency at Hospital Board Level

Kathy O'Brien


Under current law, there is no obligation for the board of a public hospital to hold meetings that are open to the hospital's corporate members, the press, or the public at large. Practice across the province is by no means uniform - some hospital boards encourage the press and public to attend board meetings, and move in camera to discuss sensitive or confidential matters; other hospital boards allow guests to attend only upon express invitation.
For the second time in this session of the 37th Parliament of the Ontario Legislature, Liberal M.P.P. Caroline Di Cocco (representing the riding of Sarnia-Lambton) has introduced legislation that, if enacted, would require all hospital board and committee meetings to be accessible to the public. The more recent of these bills is Bill 206, Transparency in Public Matters Act, 2002, which passed first reading in the Legislature on November 4, 2002. This Private Member's Bill is an updated version of the now defunct Bill 95, Ethics and Transparency in Public Matters Act, 2001. Bill 95 passed second reading in October 2001 and was referred to the Standing Committee on Public Accounts on May 23, 2002, when virtually all sections of the Bill were defeated.

Bill 95 - The First Attempt

Bill 95 would have required "designated public bodies", including hospital boards, committees, and Medical Advisory Committees, to:

  • Hold meetings that are open to the public and to make minutes of its meetings available to the public in a timely fashion;
  • Set rules respecting public notice of its meetings and the meetings of its committees and the availability of its minutes and its rules to the public;
  • Appoint a person to be responsible for its compliance with the rules; and
  • Impose conflict of interest rules on its members.

Bill 95 allowed a designated public body to move in camera only under specific prescribed circumstances, including when:

  1. financial, personal or other matters may be disclosed of such a nature that the desirability of avoiding public disclosure of them in the interest of any person affected or in the public interest outweighs the desirability of adhering to the principle that meetings be open to the public;
  2. a person involved in a civil or criminal proceeding may be prejudiced;
  3. the safety of a person may be jeopardized;
  4. personnel matters will be discussed;
  5. litigation affecting the body or a committee of the body will be discussed or instructions will be given to or opinions received from solicitors for the body or committee of the body.

Any violation of Bill 95 that resulted in a member of the public being improperly excluded could lead to a $1,000 fine of each member of the "designated public body" who was in attendance at that meeting.

Bill 206 - Second Attempt

While Bill 206 is similar to the defeated Bill 95, there are notable differences and refinements to Bill 206 that merit mention:
  • "Medical Advisory Committees of public hospitals are no longer expressly listed as a separate designated public body. However, Bill 206's requirements apply to "the committees" of the designated public body; the Bill can therefore be interpreted as requiring Medical Advisory Committees to hold meetings open to the public.
  • "The circumstances under which the public may be excluded from a meeting dealing with personnel matters have been finetuned to "personnel matters involving an identifiable individual…" and "negotiations … relating to labour relations or a person's employment by the designated public body".
  • The motion to exclude the public must be disclosed in the minutes of the board meeting, including the nature of the matter to be considered and the general reasons against disclosure.
  • The minutes of a public meeting must be available to the public at the same time as they are available to the board, whether adopted or not. Bill 206 also prescribes the level of detail to be included in the minutes and requires the minutes to be "clear, concise and neutral".
  • Decisions made in the absence of the public must be clearly recorded in the minutes, with sufficient details to inform the public of the nature of the decision and the matter upon which the decision was made. These minutes must be available at the next public meeting.
  • If the person appointed to oversee compliance with the Bill violates his or duty, a fine of $1,000 may be imposed. If the person responsible for compliance is the chair of the board, the fine increases to $2,500.
  • The Information and Privacy Commissioner may appoint investigators to investigate complaints and ensure compliance with the Bill.

Pros and Cons of Open Hospital Board Meetings

While Bill 206 is consistent with the provincial government's own focus on accountability of the public sector, political reality suggests that this Private Member's Bill will not move to second reading. In the meantime, hospital boards are entitled to hold meetings that are closed to the public. But should these meetings be closed or open?

While accountability to stakeholders is to be encouraged, I submit that closed meetings may not necessarily be the proper mechanism for that accountability. Some concerns:

  • Will board members feel reluctant to speak frankly and freely when the public watches deliberations? A public gallery could be intimidating to volunteer board members, especially new board members with numerous questions who face a significant learning curve.
  • Will board members become more political, playing to their public gallery, instead of making the hard decisions about health care that are necessary? Often, and increasingly so in this time of financial challenge, those hard decisions are unpopular with the public.
  • Will board solidarity be compromised when the public has witnessed a heated and divisive debate? Will board members be less willing to speak out against the majority?

In short, would mandatory public meetings lead the work of the board to suffer?

We will continue to watch developments calling for transparency at the board level.

About the Author(s)

Kathy O'Brien is a senior associate in the Health Law Group of Cassels Brock and serves as a newsletter editor for the OBA's Health Law Executive. Cassels Brock articling student Tanya Chow is gratefully acknowledged for her assistance with the writing of this article.


Be the first to comment on this!

Note: Please enter a display name. Your email address will not be publically displayed