Letters of Reference to Remain Confidential
Although Dr. Straka was advised that the letters of reference supplied in his case were "negative" and would stand in the way of his appointment to the active staff, he accepted a locum tenens position and did not seek a hearing before the Humber Board of Directors, as he was entitled to do. After commencing his practice as a locum tenens he brought court proceedings against Humber River Regional Hospital seeking disclosure and production of the "negative letters of reference" with the express intention of suing their authors for defamation.
In denying Dr. Straka's request, the Court reviewed the common law rules for the assertion of a successful claim for privilege, including the community interest in maintaining a relationship of trust between referees and the boards of public hospitals, and the negative effect of candor if reference letters were disclosed at large. Mr. Justice Morden speaking for the court said, "I have little difficulty concluding that members of the public would have a vital interest in the integrity and thoroughness of the methods hospital boards use in deciding whom to appoint to what positions in their medical staffs. The lives and health of members of the public is directly affected."
The decision still leaves it open for physicians to challenge unfavourable reference letters during the course of the medical staff appointment process. The usual route, outlined in the Public Hospitals Act involves a hearing before the board with a statutory right to review at the Health Professions Appeal and Review Board. In this setting, referees may have their opinions tested and challenged without the threat of defamation proceedings. Disclosure in this context may be necessary to ensure that the aggrieved applicant has a fair opportunity to contradict or explain unfavourable evaluations. Reference letters disclosed in the course of a hearing before a hospital board would be subject to the limitation that they could not be used for any other or "collateral" purpose, such as Dr. Straka was attempting.
About the Author(s)
William Carter is a senior member of Borden Ladner Gervais LLP's Toronto Health Care Law Group. He can be reached at 416-367-6173.
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