In his editorial, “Forced retirement” (BCMJ 2005;47:165), Dr Anthony Salvian decries the fact that the Canadian Charter of Rights and Freedoms does not protect the rights of physicians working at the Vancouver General Hospital who at age 65 are forced to relinquish their privileges. The background to what, on the surface, appears to be a blatant denial of human rights is fascinating and revealing. In 1990 a group of Vancouver physicians and surgeons, all prominent in their field, launched an action against the Vancouver General Hospital on the grounds that to lose one’s privileges solely because the age of 65 was attained was unconstitutional under the Charter of Rights and Freedoms. The case may be found on the Internet under Stoffmann v. VGH, 1990 S.C.R.483. It is not brief; it has ingenious and convoluted arguments; it is rambling and the judgment is 569 pages in length. Bunyan’s The Pilgrim’s Progress is 225 pages shorter. Prior to attempting to read it do not fortify yourself with a heavy meal and a glass of port.
Mr Justice Taylor of the Supreme Court of BC, a learned judge, ruled the bylaw was unconstitutional. The VGH appealed. The Court of Appeal ruled against the VGH and upheld the lower court. The case was brought before the Supreme Court of Canada.
The Charter does not protect private organizations but public bodies are subject to its provisions. Counsel for VGH argued that the VGH was not a public institution and as such it was able to enforce terms of engagement and discriminatory behavior that would otherwise be illegal. The Board of Trustees of the VGH consisted of 16 members of whom 14 were appointed by the Minister of Health. Bylaws are enforceable in law. Bylaws must be approved by the minister. The minister may arbitrarily replace the Board of Trustees, and if memory serves me correctly, has done so on at least one occasion. The cost of operating the hospital is almost entirely paid through a taxpayer-financed agency, the Provincial Treasury Board. The minister has the discretion through the Regional Hospital Boards to close an existing hospital, for example, St. Mary’s Hospital in New Westminster.
The elderly members of the court deliberated. They ruled that the VGH was a private institution. The House of Lords has a judicious word for such decisions; the word is “curious.”
The second issue was that as a university-affiliated teaching hospital “…the objective of Regulation 5.04 [compulsory retirement] the maintenance of the highest standards of medical care and instruction…was sufficiently important to warrant over riding a constitutionally protected right.” This too was endorsed by the majority.
Madame Justice Bertha Wilson wrote a robustly dissenting minority opinion: “…it is administratively more convenient to remove incompetent physicians through the mechanism of mandatory retirement….” She elaborated that…“an attempt be made to break free of the apathy of stereotyping and to treat all individuals whatever their color, race, sex or age, as individuals deserving of recognition on the basis of their unique qualities of talents and abilities. Convenience in administrative procedures cannot be used as a possible justification for the breach of rights.”
It is of interest that the magic figure of 65 was chosen by Price von Bismarck, 1815–1898, the famous German statesman, who, upon finding that his radical social and military reforms were being thwarted by senior civil servants and elderly officers, asked his actuaries to determine at what age the state could finance a suitable pension. When Bismarck was dismissed from his position as Chancellor by Emperor William II he was very bitter. He was 75. Supreme Court of Canada judges retire at 75. They do not have ongoing audits of their fitness to remain on the bench. A pity.
—H. Ewart Woolley. MD
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