February 23, 2004

SUBMISSION BEFORE THE ONTARIO STANDING COMMITTEE ON JUSTICE AND SOCIAL POLICY, REGARDING REGULATORY BILL 8 (AN ACT TO ESTABLISH THE ONTARIO HEALTH QUALITY COUNCIL AND VARIOUS ISSUES INCLUDING ACCESSIBILITY AND ACCOUNTABILITY)

INTRODUCTION

Dr. Douglas Mark: Good morning. My name is Dr. Douglas Mark, and it is my privilege to serve as the President of The Coalition of Family Physicians of Ontario. Dr. John Tracey and I are grateful to have this opportunity to share our concerns about Bill 8 with you.

The Coalition of Family Physicians is a voluntary member-driven, grassroots organization representing over 3,600 family physicians that continues to grow. It is dedicated to protecting the rights and independence of family physicians across the province. We advocate, on behalf of our patients and members, solutions to improve our health-care system and health-care delivery to the people of Ontario .

To present to you our main concerns, I wish to introduce you to the chair of the Coalition's Political Action Committee, Dr. John Tracey. Dr. Tracey?

SUBMISSION

Dr. John Tracey: Mr. Chairman, Ladies and Gentlemen:

Thank you for allowing the Coalition of Family Physicians to present our thoughts and concerns about Bill 8 to you today.

My name is John Tracey, and I'm a family doctor in Brampton and Chair of the Political Action Committee of the Coalition of Family Physicians.

Bill 8 is a complex body of work that has widespread ramifications for our members and our health-care system. We understand why the Minister wants to introduce this Bill but in the process, let me explain as a practitioner, why this may buckle the system you are trying to protect.

The Minister in his earlier remarks has identified key components to this Bill.

Part 1 deals with the Ontario Quality Health Council . I wish to draw the attention of the committee to Sections 4 and 6. 1

Some of the many functions of the Health Council are

Under Sect.4 (a) to monitor and report to the people of Ontario on,

(iii) consumer and population health status, and

(iv) health system outcomes.

And in order to do to this there are prescribed regulations in Section 6 of which I draw you attention to:

Sect. 6. (1) The Lieutenant Governor in Council may make regulations,

(h) governing the transfer of information from persons provided for in the regulations of information, including personal information, etc.

(i) governing the confidentiality and security of information including personal information, the collection, use and disclosure of such information, etc.

The committee is aware that there is currently a proposal to introduce health information privacy legislation (Bill 31) in this Province and in the embodiment of this legislation under Part 4, Section 45 there is a provision that on the request of the Minister a health information custodian SHALL disclose health personal information to an approved health data institute. 2

Notwithstanding these requirements there is also a process of Primary Health Care Reform occurring in Ontario at this time.

There is concern that is shared by many patients that:

•  this legislation can bind a physician to releasing personal patient health information to the Ministry,

•  patients may have given consent for such release when signing an enrolment form for FHGs (Family Health Groups) and FHNs (Family Health Groups) and

•  by order of the Lieutenant Governor in Council the Quality Health Council may have access to this information.

Bill 31 attempts to protect the release of the information to a Health Science Data Institute for monitoring the health-care system. However, there is a provision for the release of personal health information in this bill to ostensibly perform the same monitoring function through the Health Council.

Together there is the potential for confusion and, since there are severe penalties for wrongful release of personal health information, we are asking this committee for clarification.

Part 2 Accessibility

We have serious concerns with how the Bill addresses accessibility to health care services.

The Bill as it stands conveys what we can only describe as extraordinary powers to the Minister and to the Manager of the Ontario Health Insurance Plan.

Section 9 imposes the OHIP Schedule of Benefits upon all doctors as a sort of unilateral employment contract without any explanation or provision as to how this document is to be negotiated and agreed upon.

Section 9 (1 and 2) states that physicians shall not charge more nor accept payment for more than that provided by OHIP for a particular service.

We wish to point out that in Ontario today the plan provides a fee of approximately $24 for providing care to a patient for 24 hours whilst that patient is in hospital. There are hundreds of thousands of “orphaned patients” in this Province that do not have Comprehensive Care Family Physicians and require hospitals to contract with physician hospitalists and subsidize the fees received from OHIP for hospital care. This Bill has the potential to make these and similar subsidized payments illegal.

Section 9 removes a doctor's right to bill his or her patient directly for services provided. This effectively could conscript doctors to assume the role of employees, possibly changing their status under Revenue Canada , to be compensated as the ministry sees fit since the government sets the schedule of payments independent of any proper bargaining process.

Section 10 imposes a bargaining agent selected by the Minister and permits the Minister to select other bargaining agents as the Minister decides. There is no acknowledgement of physician rights to select their own representative agent.

We are concerned and object to the provision in this act that recognizes and entrenches in law that the sole representative body for the physicians of Ontario be chosen to be the Ontario Medical Association.

If there are later amendments to this act that provides for the removal of the necessity for individual practitioners to sign accountability contracts and require only that corporations sign these contracts then there is considerable concern amongst our membership that the Minister might include in the next Master Agreement a provision that a representative body sign a joint accountability contract on behalf of the profession as a whole.

I would point out that the COFP recently held a referendum of our membership which asked if they believed that physicians should be given the right to choose their bargaining agent. The results show that 92 per cent of the1545 respondents clearly indicated that physicians should be offered a choice as to whom they wish to represent them.

This is after all a right of every other individual in this country. Why would this act seek to impose a representative body of the Minister's choice on physicians?

Having acknowledged a representative body that would enter into negotiations on behalf of physicians and having removed the rights of physicians to bill for their services, it is essential that this committee enforce the provisions of the Canada Health Act (sect. 12) that provides for a legal framework for negotiations and a dispute resolution mechanism that includes binding arbitration.

Section 11 sets aside the provisions of the Statutory Powers Act and permits the Manager of OHIP to make arbitrary judgments about whether someone has made an unauthorized payment for a service. Should the Manager arbitrarily decide that the service payment was unauthorized then it empowers the Manager to declare the doctor as indebted to the plan and to recoup these payments through a garnishment process from other bone fide accounts payable to the physician.

Last year physicians were regarded as heroes as with other health care professionals they risked their lives daily to battle SARS. This bill now seeks to criminalize our profession, not just with severe fines, but with up to 12 months imprisonment if we are found guilty of charging a fee that is judged by the General Manager of OHIP to be an inappropriate fee.

Removal of jail sentences for billing misdemeanors would be viewed as a necessary priority amendment.

Section 12 limits any form of a proper review of the arbitrary decisions and actions set out in section 11. This is contrary, in our view, to the principles of natural justice.

Section 16 imposes restrictions upon, or limits the charging of fees for, services that are not even designated as medically necessary and thus not even part of the OHIP mandate; this despite existing jurisprudence otherwise on the matter. This would include the bundling of fees for uninsured services and offering patients the opportunity to pay a one time annual fee otherwise known as Block billing.

Section 17 imposes the penalties on individuals that contravene a provision of this Part of the Act. These penalties include $50,000 fines and/or 12 Months imprisonment.

Mr. Chairman, this is absolutely unacceptable to the Medical profession and needs to be struck from this bill.

This bill sets out to remove the rights of certain individuals to set their fees for their intellectual property, make the Minister the sole payer and, in order to be paid, demand that the individual independent service provider sign an accountability contract.

Part 3 Accountability

Section 21 allows the Minister to compel physicians (who at this time are independent contractors) to enter into an accountability agreement with the Minister or other agencies as so directed. 4

This of course begs the question of choice to enter these so-called agreements and whether these agreements are a matter of law when in fact the terms of the agreement are imposed and not negotiated.

As you may appreciate, doctors are already accountable to our patients in at least three different ways:

• We are subject to strict regulation of our practices, and wide-ranging scrutiny and discipline by the College of Physicians and Surgeons of Ontario. The complaints and disciplinary process grants the patient right to present their concerns to the College at no cost to him or her;
• We are subject to an extensive array of civil law penalties in the Courts, akin to any other contractor;
• We are subject to the discipline of the marketplace, though we do admit that the opportunities for market discipline are rapidly diminishing for our patients as doctor shortages worsen around the world.
  

Thus we already have three levels of accountability to our patients. This bill does not enhance a doctor's accountability to his or her patients. It attempts to make doctors accountable to another layer of bureaucracy.

Section 22 allows the Minister to compel a physician to comply with a prescribed compliance measure.

We have absolutely no idea what these compliance measures may be but we are concerned with the tone and intent of this section.

Section 26 states that if a physician fails to enter into an accountability agreement, fails to comply with any terms of the agreement, or fails to comply with all or part of the compliance directive then the Minister may impose the following corrective measures:

•  a fine of not more than $100,000;

•  reduction, variation or discontinuation of funding;

•  variation of any term of any agreement or contract between the Crown and the physician.

Mr. Chairman, these provisions have the potential to bankrupt physicians as they have long term lease commitments and staff contracts to meet.

It is essential that these impositions be removed from this bill as no one could possibly enter into terms of employment under these conditions.

These measures within the Bill will further erode access to care for the people of Ontario . Imposition of this Bill, and all that it implies at this time, we are sure, will add to the pressure for physicians to seek other jurisdictions in which to practice their craft.

This legislation expects physicians, who are regarded legally independent contractors, to sign accountability contracts so that they can receive payment for their services from OHIP. How many bright young people, about to begin their careers in medicine, will remain in Ontario if they must sign these accountability contracts in order to be paid?

Mr. Chairman, we have not made specific amendments to particular sections of this Bill simply because we believe that the entire Bill as it is currently constituted is flawed and requires a complete revision.

Dr. Mark?

CONCLUSION

Dr. Douglas Mark : One million Ontarians cannot find a family doctor. They are rightly concerned the situation will grow worse as 25 per cent of family doctors are expected to retire.

Ontario physicians' fees rank seventh in Canada . The numbers of trained family doctors coming out of Medical School residency programs are diminishing rapidly. There is a critical shortage of doctors across the developed world. Well-trained young family doctors have skills that are in great demand throughout the world.

Physicians will leave Ontario or move to live and work in more hospitable environments or find other employment avenues should present trends continue unabated and unchanged.

Recruiting new graduates in a legislative environment that suspends their civil rights and liberties will indeed become a difficult travail.

Indeed, the credibility of the government's “Commitment to the Future of Medicare” depends upon fairness and respect. The physicians of Ontario deserve the same rights as their fellow citizens.

Physicians must have the right to choose their own bargaining agent and a framework for bargaining in a meaningful way with the province.

The Minister has indicated his intention to make all health system players accountable, particularly to patients.

This Bill is supposed to empower consumers by entrenching accountability. But accountability in our book is a mutual responsibility. With respect Mr. Chairman, we see little accountability by Government to its doctors and by extension to their patients.

In our view, having scrutinized this Bill in its entirety, we see little evidence of any accountability by central health ministry planners to patients.

In fact, where the burgeoning health administration is concerned, accountability appears to be unidirectional radiating out to physicians. We think that this is a serious oversight.

If this bill goes through without very significant and fundamental amendments there will be a serious negative impact for patient accessibility to care in this province, because doctors simply will choose to not practice where they do not enjoy the same rights as other citizens.

Thank you for the opportunity to present today, and we would appreciate a further opportunity to present again, if this is possible after Ministerial amendments are available. We would be pleased to serve on any Committee that is so constituted in order to give meaningful input.

Thank you. Questions?

References

1) Functions of Council

4. The functions of the Council are,

(a) to monitor and report to the people of Ontario on,

(iii) consumer and population health status, and

(iv) health system outcomes;

And in order to do to this there are prescribed regulations in Section 6 of which I draw you attention to

Regulations

6. (1) The Lieutenant Governor in Council may make regulations,

(h) governing the transfer of information from persons provided for in the regulations of information, including personal information, that is relevant to carrying out the functions of the Council;

(i) governing the confidentiality and security of information including personal information, the collection, use and disclosure of such information, the retention and disposal of such information, and access to and correction of such information, including restrictions on any of these things, for the purposes of the carrying out of the functions of the Council;

2) Disclosure for analysis of health system from proposed Bill 31

45. ( 2) Subject to the restrictions, if any, that are prescribed, a health information custodian shall, upon the request of the Minister, disclose personal health information to a health data institute that the Minister approves under subsection (9) for analysis with respect to the management of, evaluation or monitoring of, the allocation of resources to or planning for all or part of the health system, including the delivery of services, if the requirements of this section are met.

Form, manner and time of disclosure

(3) The Minister may specify the form and manner in which and the time at which the health information custodian is required to disclose the personal health information under subsection (2).

Patient Enrolment Form and Consent to Release Personal Information

The Ontario Ministry of Health and Long-Term Care (the “Ministr y”) has announced plans for the establishment of Family Health Networks across Ontario . By joining with other doctors in a Family Health Network, your family doctor will be better able to provide you with quality medical care, including access to a 24-hour response service. You, or you and your family, are invited to enroll with your family doctor by completing and signing this form. The form sets out the commitments that you are asked to make as a patient enrolled to your family doctor. The form also describes certain events that give rise or may give rise to the termination of your enrolment. Finally, the form asks for your consent to the exchange of certain information relating to your health care among your family doctor, the Ministry and other health care providers.

Patient Consent to Exchange of Personal Health Information

Your family doctor will be able to offer you better medical care if you permit your family doctor and the Ministry to share appropriate and relevant information relating to your and your family's health. By completing and signing this form, you

a) agree to allow your family doctor to share and the health care professionals working with your family doctor medical records and information about you with other health care providers involved in your care;

(b) agree to allow the Ministry to release the following specific information to your family doctor:

??dates of immunizations (flu shots, etc.);

??dates of cervical screenings and mammographies;

??information concerning the date of service and the fee paid, including the fee code, for insured primary care services that you receive from a family doctor outside of your Family Health Network; and

(c) consent to the exchange of the information contained in this form among your family doctor, other family doctors in the Family Health Network, the Ministry and the Ontario Family Health Network for purposes related to your enrollment;

(d) consent to the Ministry or the Ontario Family Health Network on behalf of your family doctor, to exchange the following specific biographic information with the Telephone Health Advisory Service:

??name, health number and version code, address, date of birth, gender

I agree to the terms and conditions contained in this Enrollment Form and Consent to Release Personal Information. I acknowledge that this Enrollment Form is not intended to be a legally binding contract and is not intended to give rise to any new legal obligations between my family doctor and me.

3) Accessibility (From The Canada Health Act)

12. (1) In order to satisfy the criterion respecting accessibility, the health care insurance plan of a province

(a) must provide for insured health services on uniform terms and conditions and on a basis that does not impede or preclude, either directly or indirectly whether by charges made to insured persons or otherwise, reasonable access to those services by insured persons;

(b) must provide for payment for insured health services in accordance with a tariff or system of payment authorized by the law of the province;

(c) must provide for reasonable compensation for all insured health services rendered by medical practitioners or dentists; and

(d) must provide for the payment of amounts to hospitals, including hospitals owned or operated by Canada , in respect of the cost of insured health services.

Reasonable compensation

(2) In respect of any province in which extra-billing is not permitted, paragraph (1)(c) shall be deemed to be complied with if the province has chosen to enter into, and has entered into, an agreement with the medical practitioners and dentists of the province that provides

(a) for negotiations relating to compensation for insured health services between the province and provincial organizations that represent practicing medical practitioners or dentists in the province;

(b) for the settlement of disputes relating to compensation through, at the option of the appropriate provincial organizations referred to in paragraph (a), conciliation or binding arbitration by a panel that is equally representative of the provincial organizations and the province and that has an independent chairman; and 

(c) that a decision of a panel referred to in paragraph (b) may not be altered except by an Act of the legislature of the province.

1984, c. 6, s. 12.

4) 21. (1) A health resource provider, and any other prescribed person, agency or entity SHALL, when directed by the Minister, do either or both of the following:

1. Enter into an accountability agreement with the Minister.

2. Enter into an accountability agreement with the Minister and with any one or more persons, agencies or entities as directed by the Minister.