On October 29, 2014, Madam Justice Adair issued an oral decision interpreting section 46(6) of the Hospital Act for the first time.  That section provides that "[a]ll information or evidence (a) about an application for a permit to practise in a hospital, or contained in the decision of a board of management resulting from the application, or (b) received by, or presented to, the Hospital Appeal Board for an appeal, is privileged and an action must not be brought against a person for it."  In an appeal of a Master's decision upholding the privilege, Adair J.confirmed that this provision confers a privilege on information and evidence about permits to practise in a hospital that protects them from production in a legal action.

Fernando Casses et al. v. Canadian Broadcasting Corporation et al. (unreported), is a case in which a medical practitioner (Dr. Casses) who held permits to practise in hospitals owned and operated by Interior Health Authority, Northern Health Authority and Vancouver Island Health Authority (the "Health Authorities"), commenced an action in defamation against CBC in relation to a series of television broadcasts and a related internet article published on the CBC's website. In the course of the litigation, which is on – going, CBC filed an application for production of documents in the possession of the Health Authorities, including Dr. Casses' applications for permits to practise at hospitals owned and operated by the Health Authorities and correspondence relating to those permits (the "Requested Documents").

Dr. Casses opposed the application on the basis that section 46(6) of the Hospital Act barred the production of the Requested Documents in the defamation action.

The Honourable Master Muir dismissed CBC's application with respect to the Requested Documents, agreeing that section 46(6) of the Hospital Act prevented the Court from ordering the production of the Requested Documents in the defamation action.  CBC appealed this decision to the BC Supreme Court.  At this point we were retained to oppose the appeal on behalf of the Health Authorities.  Madam Justice Adair dismissed the appeal, agreeing with the position taken by the Health Authorities and Dr. Casses.

On appeal, CBC's counsel argued that section 46(6) of the Hospital Act simply bars persons from using information and evidence about permits to practise in a hospital to found a legal action.  We argued that section 46(6) not only bars persons from using information and evidence about permits to practise in a hospital to found a legal action but also bars the court from ordering production of such information and evidence in a legal action.  We argued that the latter interpretation was necessary to achieve the object of the legislative scheme which was to ensure the maintenance of high standards of patient care and professional competency in hospitals.  In our submission, the maintenance of these standards depended on those involved in the credentialing process being completely candid such that the Health Authorities' Boards could carry out their work without practitioners fearing being penalized in other proceedings for making such disclosure.  If those completing such documents fear legal ramifications for their participation, the goal of full and frank disclosure is likely to be compromised.

In her oral decision of October 29, 2014, Madam Justice Adair agreed, finding that section 46(6) of the Hospital Act not only bars persons from using information and evidence about permits to practise in a hospital to found a legal action but also bars the court from ordering production of such information and evidence in a legal action.

It is important to note that, unlike the prohibition in s.51 of the Evidence Act which is not waivable by any party, the privilege in s.46(6) of the Hospital Act, like other privileges, could be waived if both the physician and the health authority agreed it was appropriate and necessary.  We anticipate this would be a rare circumstance.

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