May 11, 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 afternoon. 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 once again 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 would now like to introduce you to Dr. John Tracey. Dr. Tracey?

 SUBMISSION

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

Thank you for allowing the Coalition of Family Physicians of Ontario 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. I speak as a member of The Coalition of Family Physicians that made an original submission to this Committee back in February of 2004. We welcome the opportunity for further input and comment.

From the outset, we expressed our deep concern that the impact of this legislation, as it applied to physicians, was so daunting and overwhelming we would not recommend amendments but felt that the legislation should be withdrawn. We believed that it was significantly flawed. Despite certain amendments, which we congratulate the Minister for making, we are still of the same opinion.

Yet, it is renewing a process that belies their integrity when it comes down to how physicians should be treated, promotes a continuous erosion of physician freedoms and rights, and may be acting in a discriminatory fashion contrary to the Canadian Charter of Rights and Freedoms.

As you are aware, there are three key components to this Bill.

Part 1 deals with the Ontario Quality Health Council. We will not be commenting on this particular section today.

 Part 2 Accessibility

This section of the bill deals most specifically with physician and health practitioners.

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. Exceptions have been made allowing physicians the opportunity to receive on-call stipends and other benefits that may be forthcoming from hospitals or health care facilities.

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.

It removes a physician’s right to bill his or her patient directly for services provided. By removing choice, this could effectively conscript doctors to assume the role of employees or dependent contractors, possibly changing their status under Revenue Canada. Physicians would be compensated as the Ministry sees fit since the government sets the schedule of payments independent of any proper bargaining process.

A ministerial order permits the Minister to amend any fees or schedule of benefits thus negating the value of any contracts that the Minister may have entered into with physicians.

Coupled with the provisions in Part 4 (Amendments to the Health Insurance Act) the right to ‘opt out’ of OHIP and charge the patient directly for service rendered has been forever rescinded.

Currently physicians are allowed to ‘opt out’ but are not allowed to charge any greater amount than that paid by the plan if the service rendered is an ‘insured service’. Most physicians (over 98%) choose to bill the plan but this should not be construed as a de facto acceptance that they agree to have their civil rights infringed. Physicians have only their intellectual property to offer as a service. This bill will monopolize their intellectual property rights.

In fact, the Canadian Charter of Rights and Freedoms clearly indicates that:

[6. (2) Every citizen of Canada and every person who has the status of a permanent resident of Canada has the right to move to and take up residence in any province; andto pursue the gaining of a livelihood in any province]

The removal of the right for physicians to ‘opt out’ of the plan and set their own fees may be viewed as discriminatory under section 15 Canadian Charter of Rights and Freedoms and therefore challenged. No other group in Ontario is thus treated.

The Charter goes on to say:

“This Court stated unanimously in Eldridge , [1997] 3 S.C.R. 624:  “A legal distinction need not be motivated by a desire to disadvantage an individual or group in order to violate s. 15(1).  It is sufficient if the effect of the legislation is to deny someone the equal protection or benefit of the law”. 

The shortage of physicians is a global phenomenon and this legislation challenges the notion of attraction and retention of human resources. We believe that top quality physicians will not be attracted to Ontario. Many will likely leave the province.

 Section 10 imposes a representative body for physicians 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.

The Coalition of Family Physicians of Ontario objects to the provision in this act that recognizes and entrenches in law that the sole representative body for the physicians of Ontario be chosen by the Government of Ontario to be the Ontario Medical Association (OMA).

We 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% of the 1,545 respondents clearly indicated that physicians should be offered a choice as to what body should 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, there is no mechanism to 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.

From Canada Health Act Section 12:

 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;

 Physicians are denied the right to strike due to specific exclusion from the Labour Relations Act and currently have no legal framework for negotiation, no dispute mechanism and no regulations for binding arbitration. The public deserves a mechanism that ensures fairness towards physicians so that resolution can be obtained without service disruption.

 Section 11 sets aside the provisions of the Statutory Powers Act and permits the Manager of OHIP to make arbitrary judgments as to whether payment for a service is authorized or not. Then based on those arbitrary powers, it empowers the Manager of OHIP to declare a doctor as indebted to the plan and garnishee monies from other bone fide accounts payable to the physician.

Anyone can complain that a physician may have charged an unauthorized payment. It should be noted that the definition of what constitutes an unauthorized payment has not been defined.

Given the Regulatory powers of the Lieutenant Governor in Council, we will have to await this definition or, under tort law, observe developments as physicians are yet again brought before the courts.

If the Manager decides that the payment was unauthorized, then he can pay back the patient and collect the payment from the physician through garnishing the next OHIP cheque. If the physician asks for a review of the decision, the Manager will refer the matter to the Board of the Ministry of Health Appeal and Review Board. This board will appoint a reviewer of its choice to make a judgment.

The General Manager of OHIP can require that the physician submit information for the purposes of determining a contravention to the Act and can suspend payments from OHIP during any period where the person fails to comply, whether or not the person is convicted of an offence.

Section 12 limits any form of proper review of arbitrary decision and actions set out in section 11, 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 designated as medically necessary nor are a service covered by OHIP.

We are currently self-regulated on these matters by existing jurisprudence through the College of Physicians and Surgeons of Ontario. This act would impose on the ability of the College to regulate these fees. 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 penalties on individuals that contravene a provision of this Part of the Act. These penalties range from $1,000 to $10,000 fines.

Section 18 allows the Lieutenant Governor of Council to make regulatory changes to virtually any part of the Act and specifically to those measures outlined above.

Part 3 Accountability

Originally individual physicians were to be required to sign accountability contracts. This section of the bill has been now amended to specifically exclude physicians and trade unions.

Nonetheless, there are concerns that may affect physicians collaterally – especially those that work in hospitals, nursing homes and long-term care facilities.

We note that physicians are required to sign contracts to provide care as medical directors and/or attending physicians in long-term care institutes and are concerned about the potential for ‘trickle-down’ accountability impositions to be placed in these physician contracts

There are many aspects of Part III that are left to be prescribed by regulation. It is possible that the Minister through later regulations could use Bill 8 to require hospital physician executives and/or medical staff officers (chiefs of staff, chiefs of department, presidents of the medical staff association) to enter into accountability agreements and be subject to Ministry issued compliance directives.

The Coalition of Family Physicians of Ontario is concerned as to the impact on the ability of hospitals to recruit physicians into leadership positions within the hospital. Dr. Mark?

 CONCLUSION

Dr. Douglas Mark : The Liberal Government ran on a platform of the politics of inclusion. We are indeed perplexed by the contradictory nature of this Bill. Physicians seek to work in peace and provide the best care for their patients.

We face tremendous challenges as the physician pool – especially the family physician pool – continues to dwindle. This Bill will encourage the exclusion of physicians from Ontario. The doctor shortage is global. People are willing to relocate to areas of the country and indeed the world that promise and deliver respect, fair play and support.

We ask ourselves why the Liberal government’s actions seem to belie a negativity and hostility to the very professionals who seek to provide first class health care to Ontario citizens. What have physicians done to deserve legislation that treats them as second class citizens devoid of the rights and freedoms accorded to the people of Ontario and Canada?

This Bill does not uphold the true beliefs and sense of fairness inherent in the Canadian context. It is wrong on moral, ethical and humanitarian grounds to continue on this path.

Mr. Chairman, we respectfully request a serious reconsideration of the consequences to the rights and freedoms of a specific group of people that this Bill will destroy. It is not a just Bill and is not in keeping with the central tenet of the Liberal Party of Ontario.

This is why 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.

Therefore, we believe that Bill 8 should be withdrawn immediately. Thank you. Questions?