INQUIRY RE MINISTRY OF HEALTH INFORMATION
CONTENTS
Monday 2 March 1992
Inquiry re Ministry of Health information
Michael Dector
STANDING COMMITTEE ON THE LEGISLATIVE ASSEMBLY
Chair / Président(e): Offer, Steven (Mississauga North/-Nord L)
Vice-Chair / Vice-Président(e): Miclash, Frank (Kenora L)
Bisson, Gilles (Cochrane South/-Sud ND)
Christopherson, David (Hamilton Centre ND)
Conway, Sean G. (Renfrew North/-Nord L)
Eves, Ernie L. (Parry Sound PC)
Harnick, Charles (Willowdale PC)
Hope, Randy R. (Chatham-Kent ND)
Mills, Gordon (Durham East/-Est ND)
Murdock, Sharon (Sudbury ND)
Owens, Stephen (Scarborough Centre ND)
Scott, Ian G. (St George-St David L)
Substitution(s) / Membre(s) rempliçant(s):
Elston, Murray (Bruce L) for Mr Scott
Kormos, Peter (Welland-Thorold ND) for Ms S. Murdock
Wood, Len (Cochrane North/-Nord ND) for Mr Bisson
Clerk / Greffier: Arnott, Douglas
Staff / Personnel: Jackson, Patricia, Committee Counsel
The committee met at 1010 in room 151.
INQUIRY RE MINISTRY OF HEALTH INFORMATION
The Chair: We will call the standing committee on the Legislative Assembly to order. Good morning everyone. You have before you a tentative schedule for the remainder of our hearings. I believe the clerk is going to be distributing those, if he has not already done so.
MICHAEL DECTER
The Chair: This morning we have Michael Decter, Deputy Minister of Health, before the committee. I would like to invite Mr Decter to the table. You can sit wherever you would like at that desk. Good morning, Mr Decter.
Mr Decter: Good morning.
The Chair: It has been the practice before any questioning takes place that the clerk administer an oath to people coming before the committee, and at this point I would invite the clerk to do so.
Michael Decter, affirmed.
The Chair: Mr Decter, prior to questioning commencing, I would like to provide a warning which has been provided to all people who have come before the committee, and it is that in the event that you are asked a question which you cannot properly answer without divulging confidential information, could you please then advise the committee, and if there is not a way to disclose this information without divulging confidential information, then the matter would be addressed in an in camera proceeding. I am advised that there will be part of the questioning take place in camera today with Mr Decter, so I inform members of the committee of that.
The procedure of the committee is that questions are started with our counsel, Patricia Jackson, after which there is a rotation from caucus to caucus. Having said that, I would invite Ms Jackson to start questioning.
Ms Jackson: Thank you, Mr Chairman. Mr Decter, as the Chairman has indicated, you are currently the Deputy Minister of Health.
Mr Decter: Yes, that is true.
Ms Jackson: And you have occupied that position, sir, since when?
Mr Decter: Since August 6 of last year.
Ms Jackson: Of 1991?
Mr Decter: Yes, 1991, seven months as of this coming Friday.
Ms Jackson: I understand, sir, that your career in government began in fact with another government, the Manitoba government, in 1972?
Mr Decter: Yes, that is true. I have been --
Ms Jackson: And you remained with the Manitoba civil service for a number of years and in 1981 assumed the senior position in the Manitoba civil service, that of cabinet secretary and clerk of the executive council.
Mr Decter: I was in and out of the Manitoba government in the period 1972 to 1981. I find that my tolerance for public service has some time limits on it, but I was from 1981 to 1986 clerk of the executive council and cabinet secretary in the province of Manitoba.
Ms Jackson: And that is the senior position in the Manitoba civil service, is it not?
Mr Decter: Yes, it is.
Ms Jackson: Then from 1986 until 1991, I understand, Mr Decter, that you were in effect a consultant in private business.
Mr Decter: Yes, I was, both with a firm that I owned and then subsequently as a partner in the Peat Marwick consulting group nationally.
Ms Jackson: And in that capacity, sir, you were, from December 1990 until April 1991, a consultant to the Ontario government, and as I understand it, its chief negotiator in coming to the agreement that we now have heard about between the OMA and the Ontario government.
Mr Decter: Yes, that is true.
Ms Jackson: Now, I just want to cover a few things about the Ministry of Health that you have been kind enough to give us in terms of an overview of the structure we are looking at. As I understand it, the Ministry of Health in fact spends one third of the Ontario government's budget. Is that correct?
Mr Decter: Thirty-four per cent as of the current year.
Ms Jackson: And employs 15% of the staff in the Ontario public service?
Mr Decter: We employ just under 13,000 people, and I think that would be roughly 15%.
Ms Jackson: And the ministry has in its records and in its electronic database the largest collection of personal information in North America?
Mr Decter: I have been told that. I have not had a chance to research it personally, but I understand that because we run the largest single health system, covering roughly 10 million people, we do, as a consequence of that, have the largest collection of health records and individual personal records.
Ms Jackson: And that personal information, in the first instance, is ultimately stored and collected in electronic form, the way the ministry is currently organized?
Mr Decter: The vast majority of it is. We are microfilming records to save space. We still receive a large number of card billings from physicians which we then convert to an electronic form. We are endeavouring to receive all that information in electronic form, but we are not there yet.
Ms Jackson: In addition to the electronic database, as the committee has been advised, there is within the ministry an electronic e-mail system?
Mr Decter: Yes, there is an e-mail system that connects, I believe, some 2,200 of the people in the ministry, which is the vast majority of our employees who do not work in the psychiatric hospitals. In terms of understanding the ministry, between 8,000 and 9,000 of our people work in the 10 psychiatric hospitals. They are providing direct patient care as opposed to the rest of the ministry, which is management, administration and program delivery.
Ms Jackson: Everyone else in the ministry would be linked into the e-mail system, pretty much?
Mr Decter: Not everyone, but the majority of people.
Ms Jackson: Does the e-mail system connect to anybody outside the ministry?
Mr Decter: It does. My concern was having a way of reaching many of our partners outside the ministry. We have been able to arrange to connect to hospitals and district health councils and others, not directly through the e-mail, but the e-mail can be connected through a fax system so that you can e-mail something which gets converted to a fax and shows up in a number of our partners' offices across the province.
Ms Jackson: Are there any e-mail connections to other ministries in the Ontario government?
Mr Decter: Because we have a shared division with community services in terms of long-term care, there is a connection, although not a perfect one, with some of the people in community services. I can access, for example, their deputy minister, some of their key managers, by e-mail. That, to my knowledge, is the only connection we have to other ministries.
Ms Jackson: I take it from the fact that you have said most people in the ministry have an e-mail, and you have talked about your own access, that you in your office have an e-mail?
Mr Decter: Yes.
Ms Jackson: You are a designated person on the e-mail list?
Mr Decter: Yes.
Ms Jackson: So if someone wanted to e-mail something to you, they would just type in "Michael Decter" and it goes to you?
Mr Decter: Well, DECTERM is the account, but yes, there is an ability to access by anyone on the network, to send a message to anyone else on the network.
Ms Jackson: Is there any direct access by e-mail users into the electronic database that stores the personal information we were talking about a moment ago?
Mr Decter: No, it is not a two-way system in that we cannot access things. It is an electronic mail system, so you can read stuff people send to you but you cannot -- I cannot access databases off the e-mail system. I cannot speak to what the specific arrangements are inside particular branches. Someone could put a file, if he so chose, as an attachment to an e-mail and it would be accessible. But the answer is basically no, the system does not access the databases.
Ms Jackson: When you talk about an attachment, I take it you are talking about somebody basically taking information from the electronic data bank, copying it into the e-mail system and then sending it along to somebody?
Mr Decter: Yes, or from anywhere else really. I mean, there is --
Ms Jackson: Anything can be sent as an attachment to an e-mail, but you have to type it in first?
Mr Decter: Yes.
Ms Jackson: All right. Now, I mentioned to you just before we started this morning that I had learned late last night that there is a capacity within the Ministry of Health to retrieve e-mails that people have erased from their system. Are you familiar with that at all?
Mr Decter: I was not until you mentioned it to me this morning.
Ms Jackson: As I mentioned to you, and I will just perhaps review this with your executive assistant when she testifies this afternoon, she indicated to me that she had been able to retrieve an e-mail that she erased some time last fall by requesting a program to retrieve for her all e-mails dealing with Dr Donahue, and in early February she got the results back. I appreciate you do not know how that happened, but since it seems to me to be more appropriate to direct the request to you than to her, as I said to you just before we started, I would like to ask that the ministry make efforts to retrieve through that system all e-mails concerning Dr Donahue that were sent or received in the fall of 1991. I ask you to make those inquiries and, I guess, report back to me and I will let the committee know what the results are.
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Mr Decter: Certainly that would amount, in my view, to simply expanding the direction that was given to Andrew Parr, our freedom of information coordinator, on December 11 when he was directed to ensure that all records pertaining to this matter were protected and locked from being erased. If your request is to go back further, I would certainly be pleased to direct Andrew Parr to sort out how that can be done.
Ms Jackson: Thank you. Then let me just ask you about your own personal experience. Having joined the ministry in August, what training did you go through to learn what constraints are imposed by freedom of information and comparable statutes on your use of information?
Mr Decter: There were three ways that I came to be aware of the freedom of information and privacy act. The first was very shortly after I joined in August. The privacy commissioner, Mr Wright, and Ann Cavoukian from his office made an appointment to see me to follow up the work they were doing as a result of what is termed in the ministry the Gigantes inquiry, from earlier in 1991. They had completed the first phase and they were starting into a second phase, which was to look at what controls we had in place across the ministry. So I had both a briefing note before that meeting and then the actual experience of the meeting itself and learning from them about how that statute worked from their perspective.
I had a subsequent briefing from Andrew Parr, who is our dedicated resource in the ministry, in which he took me through both the generalities of the principles in the act, as well as the role accorded to the deputy minister. Basically it was made clear to me that my major role in freedom of information was the approval of denials in terms of day-to-day work. I tend to see a significant number of requests that, for one reason or another, are being recommended for denial of access. There are a number of grounds for those denials. I have to assure myself in each case that the grounds are sufficient to the denial because I have delegated authority from the minister to make those final decisions. As you can imagine, some of them can be quite controversial. I do not remember the length of the meeting, but it would have been an hour or more with Andrew Parr. I have not been able to fix a date, but somewhere in the first four to six weeks on joining. Those two events were my major early experience.
There was a briefing provided by our corporate affairs division on all the statutes which pertain to the ministry. That was a very summary briefing which simply tried to encapsulate each statute in a paragraph or two. So I would have had that very early on joining.
Ms Jackson: Is it your understanding and expectation that ministry officials, ministry employees generally receive a briefing from somebody with freedom of information act expertise upon joining the ministry?
Mr Decter: It was my presumption that if that is what I was getting, there was some protocol in place in that regard. Subsequently there is now a very good brochure -- well, more than a brochure -- which has been developed which provides an overview. I do not know if that has been entered yet in evidence. I think I have one.
Ms Jackson: You might take a look at exhibit 5, which is in the volumes before you, and see if that is the document you are referring to, Mr Decter.
Mr Decter: No, this is brand-new. I am not sure how wide the distribution of it is, but it is a document entitled Freedom of Information and Protection of Privacy Act, 1987. It sets out in some detail the various responsibilities, exemptions and principles. It is a guide for senior executives in the ministry.
The Chair: Mr Decter, maybe if it is possible the clerk can get that particular manual, make photocopies and then it could be distributed as an exhibit.
Mr Decter: Certainly.
Ms Jackson: That is agreeable, Mr Chairman.
Mr Decter: As I say, I am not sure how widespread its distribution is. It is a relatively recent document, but as one can say of the ministry, it takes a while for these things to work their way through the system.
Ms Jackson: But your understanding is that it is intended for distribution to whom?
Mr Decter: To senior executives in the ministry. My view would be that would probably be the SMG group, the senior management group, and probably the group just below that which would include managers not in the SMG group.
Ms Jackson: Would that include assistants in the minister's office?
Mr Decter: Generally when things go to senior management, they also go to the deputy minister's office and the minister's office because those two offices have a lot of contact with the senior echelons of the ministry.
Ms Jackson: Mr Chairman, perhaps we could, before we leave that, assign an exhibit number to the brochure.
The Chair: Mm-hmm. That will marked, when available, as exhibit 69.
Ms Jackson: Do you know, Mr Decter, if the procedures that are set forth in that brochure represent in any way a change over previously existing procedures for protection of information?
Mr Decter: No, I do not, although I expect that we have been steadily strengthening the protections in the ministry. There were some very strong recommendations from the first phase of the privacy commissioner's review, and the direction that had been given both by Dr Barkin and subsequently by myself was for staff to take on board lessons learned from the privacy commissioner sort of as we moved along rather than waiting for the final report.
Ms Jackson: When you say the privacy commissioner's review, are you referring to the first phase of the investigation that followed on the affair involving Ms Gigantes?
Mr Decter: Yes.
Ms Jackson: Let me then turn, Mr Decter, to the question of Dr Donahue. I am going to explore with you what you learned about Dr Donahue and when. Let me start by asking you when you first became aware of Dr Donahue.
Mr Decter: Let me put this carefully, because as you are aware, I was struggling in the three or four meetings I had with yourself and with Larry Taman to recall why I felt I knew about Dr Donahue well in advance of November. I finally located last evening the file that I had from my term as chief negotiator, which contains -- I provided it to counsel this morning -- a front-page article from the Toronto Star from February of 1991 which --
Ms Jackson: If I could just interrupt there for a minute, Mr Decter, I will just have that distributed so people know what you are talking about. That is an article from the Toronto Star of February 2, 1991.
Mr Decter: Yes. I think that would have been my first information. I was aware of the electrolysis issue, because it was a very lively issue, in December, January, when I started on the OMA negotiations. I think the first time I would have been aware that Dr Donahue was a major figure in performing electrolysis in this province would have been the February Toronto Star article. That would be my first knowledge that (a) there was significant -- I mean, I was aware before February that there was significant controversy. A large lobbying campaign had been going on between the associations representing the private electrolygists on one hand and then, as it would appear, Dr Donahue and other physicians on the other around this issue. I was provided about the same time with a package of letters and background material by that association, which had learned from the press coverage that I was negotiating on behalf of the government. I believe this package had been provided to, if not all the members of the assembly, the vast majority of them, by the association.
Ms Jackson: This is the private association or the group that involved Dr Donahue?
Mr Decter: No, this I believe was the -- if you will let me look, I will get the appropriate name of it.
The Chair: For members of the committee, that exhibit is marked as number 70, the Toronto Star article.
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Mr Decter: I believe it is the Canadian Organization of Professional Electrologists. The acronym is COPE, and there is another association, the Electrolysis Association of Ontario. These are the two groups that I believe represent the electrolysis clinics that were not covered at that period by OHIP, the non-physician part of the industry, and they were engaged in a rather public campaign to achieve the deinsurance of electrolysis as an insured benefit under OHIP.
Ms Jackson: And the committee has heard that in fact there was a decision taken to deinsure electrolysis.
Mr Decter: Yes, last fall there was that decision taken.
Ms Jackson: And I take it you became familiar with this in the context of your role as the chief negotiator of the OMA and government agreement?
Mr Decter: Yes. The agreement really tried to move from an open-ended insurance model to more of a managed system. I think in that context the general area of delegated acts, and electrolysis in particular, was seen as probably the most extreme case of -- I put it carefully -- abuse or difficulty in the open-ended system, this rapid growth in electrolysis as a delegated act by physicians, and the cost pressures that was putting on.
Ms Jackson: And those general cost pressures and the growth are described in the article that we have marked as exhibit 70.
Mr Decter: Yes, they are.
Ms Jackson: I understand from what you say that there was a group of physicians who were in opposition to the deinsuring of electrolysis.
Mr Decter: Yes.
Ms Jackson: And did Dr Donahue figure prominently in that group?
Mr Decter: I would judge from the press coverage, although I did not meet Dr Donahue at that time. He seemed to be the leader, judging from the press coverage of the letter-writing campaign and the other activities involved with this counterlobby, if you could put it that way.
Ms Jackson: All right. And if I can just explore a couple of elements of your understanding of this issue as you gleaned it from the Toronto Star, what appears from the article is that Dr Robert MacMillan, who has given evidence before this committee, had given a speech to an electrolysis association and the electrolysis association subsequently released the speech. Have I got that approximately right, in your understanding?
Mr Decter: That certainly is what the Star article seems to convey.
Ms Jackson: And on the first page of exhibit 70, there is an apparent quote from Dr MacMillan, "`Several dermatologists in Ontario were netting well over $1 million a year.'" Did you understand that to be a reference to dermatologists netting over $1 million in respect of electrolysis or in respect of their practices generally?
Mr Decter: No, my understanding was that the entire article was about electrolysis and that the speech in question had been made to the electrolysis association. So my presumption, reading the article last February and reading it again last night, was that the reference was to billings for electrolysis, rather than general billings by dermatologists.
Ms Jackson: Then on page 2 of exhibit 70, in the first column on the left-hand side, there are references to the costs of laboratory tests associated with electrolysis and the hourly rates that are charged for electrolysis and the apparent hourly rates of staff electrologists who work for physicians. Do you understand that to be a reference to those costs generally or as they apply to a particular physician?
Mr Decter: My view reading it was that this was a description of the activity involving electrolysis by physicians who were performing -- well, they were not performing the service themselves; they were hiring staff to perform the service, which was the crux of the issue -- more of a general statement.
Ms Jackson: And then later on in the article Dr Donahue is specifically referred to and some of the things he has said are quoted in the article. Is that fair?
Mr Decter: Yes.
Ms Jackson: The second column and the fourth column of page 2.
Mr Decter: Yes.
Ms Jackson: Apart from this article, were you aware of Dr Donahue's name coming up in the context of other media coverage around this issue?
Mr Decter: Yes. In the material that I provided to you there are other articles. There is the Star article from October of 1990 in which Dr Donahue is quoted as saying that a letter-writing campaign by hundreds of women has forced OHIP to back off on deinsurance.
Ms Jackson: Which article is that, Mr Decter?
Mr Decter: That is the October 26, 1990, article.
Ms Jackson: All right. Perhaps, Mr Chairman, we should get a copy of that made and distributed. It is a very short article and the reference to Dr Donahue is essentially what you have just read, I take it?
Mr Decter: Yes, there is also -- my copy of this one is so bad I cannot make it out. It looks like a Rosemary Sexton column with a letter from Dr Donahue.
Ms Jackson: You are right. It is a very hard-to-read copy, but perhaps, Mr Chairman, we could mark those collectively as exhibit 71 and make copies for members.
The Chair: It will be marked as exhibit 71 and distributed shortly.
Ms Jackson: After that awareness of Dr Donahue in the context of the electrolysis issue in around February of 1991, when were you next aware of Dr Donahue as an individual who had some significance for things that were going on in the ministry?
Mr Decter: He showed up in the press clippings. You probably have had this explained, but we get a package of media clippings and transcripts of radio or television broadcasts that pertain to the ministry every morning. It tends to be the first thing one reads coming in, and Dr Donahue showed up early, well, November 7 or 8, in that package quite prominently, threatening to close his clinic in Sudbury. That was the next time I was aware of him, and I presumed that at that time to be a reaction to the deinsurance of electrolysis.
Ms Jackson: Could you turn up exhibit 10 in the black books before you? That is a transcript of an interview that Dr Donahue apparently gave on television that day, dealing more with the issue of electrolysis than the closing of his clinic. Were you aware of that transcript?
Mr Decter: Yes. MediaReach is where we get our material, so that would have been in my package.
Ms Jackson: And then, if you could look at exhibit 48, attached to the covering fax sheet there is an announcement of office closure by Dr Donahue, which appears to have been widely circulated. Do you recall if you saw a copy of that?
Mr Decter: No, I do not think so. I saw a letter he had written, but I do not specifically recall seeing this fax.
Ms Jackson: All right. Then could I ask you to turn to exhibit 11, back in the earlier volume, which is a transcript of a radio interview on November 13, 1991, involving Dr Donahue, apparently at 7:35 in the morning, and that does concern the indications he was then giving that he would be closing his office. Were you aware of that interview?
Mr Decter: Yes. That was in the package. I think there were other references to Dr Donahue or reference to his comments in the media in that period of early to mid-November.
Ms Jackson: At that point in time, then, when he surfaces for a second time in terms of your experience, I want to find out from you just what you knew about Dr Donahue at that mid-November period. What did you know, if anything, about the amount of his billings?
Mr Decter: I did not know anything specific about the amount of his billings. I knew, I guess, three things. One was that he was prominent in electrolysis. Two, he had a large number of staff, which is unusual in the practice of medicine. Generally physicians that have a large number of staff have them only because they are performing some delegated act. Otherwise the economics do not work. I guess the third thing I was aware of was that he was making the allegation publicly that the closure of this clinic was being caused by the threshold which was part of the agreement between the government and the Ontario Medical Association.
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Ms Jackson: Given what we have seen in terms of the statements about dermatologists' incomes in exhibit 70, did you make any assumption about the level of Dr Donahue's billings?
Mr Decter: I presumed that someone who had 14 staff was into a fairly high billing range.
Ms Jackson: Did you know by mid-November whether or not Dr Donahue was on the underserviced area program?
Mr Decter: I learned that some time after midNovember. I cannot give you a precise date, but between the time he first emerged and the time I wrote to him, which I believe was November 19, I obviously became aware that he had been in the underserviced area program until the end of August, on the four-year grant.
Ms Jackson: While we are on the subject of what you knew about Dr Donahue, let me ask you quite specifically whether you knew at any time up till December 5, which is a rather key date in terms of this committee's deliberations, at any time up till then whether or not Dr Donahue's practice was under review either within the ministry or at the medical review committee?
Mr Decter: No, I had no knowledge of Dr Donahue's practice being under review prior to December 5.
Ms Jackson: We have made reference, or I have, to Tiina Jarvalt. She is, as I understand it, your executive assistant?
Mr Decter: Yes, she is.
Ms Jackson: She was not involved in dealing with any response to the Dr Donahue controversy, is that right?
Mr Decter: No. The letter to Dr Donahue was drafted by Gilbert Sharpe, the head of our legal services branch, and Andrew Parr, our freedom of information coordinator.
But let me be careful. Tiina Jarvalt represents my office in the priority briefing process, which is the process that takes the daily press clipping package and evaluates it for issues that the minister's office, my office, will need what we call priority briefing material prepared on. So hot issues are identified and she is part of that process. So in that the closure of a clinic is an unusual enough event that it would have been a subject of the preparation of a priority briefing, she would probably have been involved in those meetings on a regular basis.
Ms Jackson: When she receives information in connection with a priority briefing, is it her responsibility to prepare something or is it her responsibility to pass on the information she receives to you?
Mr Decter: Neither. The priority briefings are prepared in the line in the ministry, down at the program level. First cut, the information is assembled. It comes up into the priority briefing process and it is then vetted by Kimberly Bain and by the communications staff. I would not see it until the priority briefing note was prepared and had been signed off by the relevant assistant deputy minister and relevant directors. So it would come to me at the same time it came to the minister.
Ms Jackson: And it would come to Tiina Jarvalt in order to come to you?
Mr Decter: No, it would come through Kimberly Bain, who is in charge of that process. She would hand-carry it to me when the House is in session by noon so that the minister could be briefed on the issue prior to going into the House. This is a procedure that was set up by Dr Barkin and left in place by me.
Ms Jackson: If information in connection with one of these issues comes to Ms Jarvalt in the course of the ministry preparing a response to an issue, I take it from what you say it does not come to her in order that she will prepare a response.
Mr Decter: No, that is not her role in the process.
Ms Jackson: So if information comes to her, it is with a view to keeping you advised of that information?
Mr Decter: No, information coming to her would largely come to her on the basis of her involvement in either the priority briefing process or some other process. If someone wants to send me something, they would simply send it to me. The point of the e-mail, frankly, is to try and cut down material, paper moving around in the ministry. So if, for example, Bob MacMillan wanted me to know something, he would e-mail me. If he wanted Tiina to be aware of it as well, he would add her to the e-mail list. It is an attempt in a sense to unclutter the system -- I should say not a wholly successful one so far, judging by the amount of paper that still comes across my desk.
Ms Jackson: Apart from the e-mail, if somebody has put together a package of information that they want to get to you on a particular issue, is the mechanism to send it through Tiina Jarvalt or to send it directly to you?
Mr Decter: Anything that comes to my office would be vetted by Mary Doyle, an administrative officer, probably prior to it getting to Tiina, and by Tiina. The basic principle is, if I do not need to see it, it does not come to me. If it is an issue that can be dealt with by one of the other staff in the office, it would be dealt with by the other staff in the office. Most of what I receive is in the form of either legal documents that require a signature or advice to the minister, and those would be signed off all the way up, starting at the director level, and by the time they reach me would have an assistant deputy minister's signature on them. They would not come specifically through Tiina, although Mary Doyle would be responsible for logging them in and out, just so they do not get lost once they are in.
Ms Jackson: So apart from e-mails, if somebody wants to send something documentary to you, the way they do it is through either or both of Mary Doyle and Tiina Jarvalt.
Mr Decter: They handle incoming correspondence, yes. If somebody writes to me, it would be seen by them before it was seen by me. It might not be seen by me. They action these things out to the various areas.
Ms Jackson: I understand that it is for them to decide what to do, but if I am on the outside and I want to send something, a documentary form to Michael Decter, the mechanism is to send it to either Mary Doyle or Tiina Jarvalt or both.
Mr Decter: If you are outside the ministry, yes, they would receive it. If you are in the ministry and want to send me something, you would send it to me on the e-mail.
Ms Jackson: What if it is in hard copy cover form, for whatever reasons?
Mr Decter: I would think for a report or something, you would probably put a memo on it and send it to my office and it would be seen by the staff who receives the mail.
Ms Jackson: So again it goes either to Mary Doyle or Tiina Jarvalt?
Mr Decter: Well, there are more staff than that in the office, but --
Ms Jackson: It does not go directly to you?
Mr Decter: Nothing goes directly to me.
Ms Jackson: Okay. Then can you turn up exhibit 13 in the black volume in front of you.
Mr Decter: In mine it is marked exhibit 23 and then that is crossed out and marked 13. Is that the one?
Ms Jackson: If it is an e-mail of November 13 at 3:55 from Denise Allen, you are looking at the right one.
Mr Decter: Yes.
Ms Jackson: Good. I understand, Mr Decter, that you have checked your e-mail and you have no record of having received a copy of this e-mail.
Mr Decter: That is true.
Ms Jackson: And is it fair to conclude from what you have just said that in sending it to Tiina Jarvalt and Mary Doyle, the expectation would be that it would be up to them to decide to what extent to keep you advised of its contents?
Mr Decter: Yes, but they would get a lot of what I would call routine traffic that there would be no expectation that it would come to me.
Ms Jackson: The e-mail itself indicates that there is a profile of Dr Donahue which will be delivered separately, with some transcripts of interviews of Dr Donahue. You have indicated that you have seen the transcripts. Do you know if you saw the package containing the two transcripts and the profile of Dr Donahue?
Mr Decter: The transcripts, as I have indicated, came to me as part of the morning media package. I have never seen a profile of Dr Donahue. I did see an e-mail pertaining to Dr Donahue the day I turned it over to counsel to this committee. That was the first time I had actually seen the document.
Ms Jackson: Could you turn up exhibit 44, please. This is an edited copy of the document that you turned over to committee counsel, that you turned over to me.
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Mr Decter: Yes; it appears to be.
Ms Jackson: So the committee understands that mechanism, that was in order to deal with the fact that there was some concern about whether the people in the ministry, and specifically Dr MacMillan, could on their own deliver to me the unedited version of exhibit 44, so you took it upon yourself to do so.
Mr Decter: Yes. On the Friday before this committee began its hearings, there was some considerable -- I put this carefully as a non-lawyer -- jostling among the lawyers as to various interpretations of what counsel to this committee were entitled to in advance of the hearings. I took the view, which was supported by a legal opinion from our own legal services branch, that if something was in the public interest I had the right, on behalf of the ministry, to make it available, in advance of these hearings, to counsel. I also had the ability to direct staff to produce for me documents which I could then hand over. So having advised Dr MacMillan and everyone else that they should consult the independent counsel that we had provided for them, I then took the responsibility for both turning over this document, other documents and also taking responsibility for certain questions being put by counsel to Dr MacMillan and to others. I wanted to expedite the work of the committee and felt that delaying would cost crucial time. So it was in that process of having these documents produced by ministry officials that I had my first glimpse at this document.
Ms Jackson: And to the best of your recollection, you had never seen it before?
Mr Decter: To the best of my recollection, I had not seen this document before. There is no record of it on my e-mail and I had searched my files to find whether a copy might have been transmitted to me, and found no copy of it.
Ms Jackson: the process that I learned about last night for retrieving erased e-mails, do you know if anyone has attempted to determine whether this e-mail, which is exhibit 44, or the one we looked at a moment ago -- exhibit 13 -- might have been copied and sent to you and then erased?
Mr Decter: No one has looked at that, but I will tell you that -- this is an embarrassing confession after seven months on the job -- I do not know how to erase e-mails on my system. The consequence is that every e-mail I have ever received is still in my in-box. So when I read my e-mails I have a large accumulation of e-mails there. I am certain from my review that none of these e-mails ever turned up on my system. But we have already earlier agreed to have a full review done, and I would presume that would include any e-mails in my system, past or present, pertaining to Dr Donahue.
Ms Jackson: Apart from having seen the document, is it possible that the contents of it and the specific statements that are made in it about Dr Donahue were discussed with you?
Mr Decter: It was clear through the period from November 7 on that we were dealing with a significant issue in Sudbury. As it turned out, the significant issue in our emerging view was not dermatology services but was cardiovascular-cardiology services, and that is where our attention really went. Through the period Dr LeBlanc, who is my adviser and senior official on the agreement -- management implementation of the agreement with the OMA -- would have discussed with me on a number of occasions, in general, the Sudbury situation. I do not have any specific recollections of information being passed along. I did form an opinion that the real issue in Sudbury was the cardiology-cardiovascular physicians and that the Donahue issue, if you like, was sour grapes over the de-insurance of epilation. I had that view early, and frankly would still hold that view today, that it was not a threshold issue; it was simply the epilation issue being put forward as a consequence of the threshold payment.
Ms Jackson: When you say it was sour grapes as a result of epilation, I take it you are saying you thought that Dr Donahue's real problem was that his electrolysis practice, which had been funded by OHIP, was not going to be funded by OHIP any more.
Mr Decter: Yes. In fact, he had indicated that himself in one of the radio transcripts, that he was going to open his electrolysis practice on a private basis under the name, the Doctor's Studio, or something like that. So it seemed to me that he was, even early on, indicating that he was going to stay in the business, but not on an OHIP-paid basis. Of course, the rates one can charge for this business in the private marketplace are a good deal less than the rates OHIP was paying.
I remember this because I got myself in a wee bit of trouble in an interview with Robert Sheppard from the Globe, who was in to see me. It must have been about the same time that this was going on and I made a reference, with reference to Dr Donahue's comment, that there was some room for the private sector, and this was unfortunately taken by Robert Sheppard as consideration of opening up the health care system to more private enterprise. His column led to some unease around the ministry and government because my comment, which had been, I suppose in retrospect, an unfortunate one, was to the effect that, you know, we were not prohibiting physicians from being involved in electrolysis; what we were doing was removing it as an insured service and they were quite free, as Dr Donahue is, to offer the service to patients on a cash basis, the same way that cosmetic surgery that is non-OHIP-insured would be offered. So I have a memory, because of the Sheppard article, of being aware that this was a service that was moving, and also that Dr Donahue was a major player in electrolysis, but I would have known that from last February. I am sure I had that confirmed to me some time in November by Dr LeBlanc.
Ms Jackson: Because you thought it was mainly an electrolysis issue and not a threshold issue, and because you were chiefly concerned with the cardiology issue, is it fair that your recollection is probably clearer with respect to items that you thought were the real issue, namely, cardiology, than with respect to Dr Donahue, which you did not think was the real issue?
Mr Decter: Dr Donahue was seen by me then as largely a side issue around the Z121D insurance.
Ms Jackson: Z121D being electrolysis?
Mr Decter: Yes.
Ms Jackson: The code that was delisted?
Mr Decter: Yes. We had expected some amount of negative publicity and reaction over the electrolysis issue. You know, there was nearly $10 million of service being provided. As is true in the health system, virtually everything is somebody's income, so any change you make generally provokes a reaction from some quarter. We actually had way less reaction on electrolysis than we had anticipated, but that is how I had the issue categorized in my mind.
Ms Jackson: Having categorized it with that level of priority, is it fair to say that your memory, with respect to conversations concerning Dr Donahue, is perhaps not as good as your memory with respect to conversations on cardiology and things that you thought were the real issue?
Mr Decter: Yes. I think it also accounts for my comment, also in the Globe, about Sudbury, that we had to separate noise from reality, a quote that was played back to me with some vigour when I attended in Sudbury on December 5. But it was my view that there was a real issue, substantive issue, which we think we have subsequently addressed by changes to the underserviced area program, but that that issue was a different issue than Dr Donahue and epilation.
Ms Jackson: Although, in your mind, he was not the central issue, Dr Donahue, of course, continued to be noise, as you put it, or a problem for some period of time into December?
Mr Decter: No, the issue really shifted the minute cardiology, cardiovascular surgery, came into it, which would have been the tail end of November, when Dr Abdulla and -- I do not remember; there was a cardiologist who also announced that he was considering closing his clinic. That was a far more serious issue. Most of the pressure that came on me in that period was around the cardiovascular services which are in some ways an unusual northern achievement. To have a tertiary service of that sort located in the north is quite an achievement, and that was a very serious concern, that that service might be impacted, not only for us, but we had lots of calls from a variety of places. I had a visit from Minister Martel in this period because of her concern about the cardiology-cardiovascular service impacts of the threshold.
Ms Jackson: I am going to come to that, but it is fair, is it not, that through at least the latter part of November, although the focus increasingly shifted to cardiology, Dr Donahue continued to be a figure in the Sudbury district, in the Sudbury doctors situation?
Mr Decter: Yes. He was certainly prominent on the 5th when I attended the community meeting.
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Ms Jackson: And in the course of your conversations, then, with Dr LeBlanc on the Sudbury doctors situation, although you may not now recall it, is it fair that you may well have discussed some of the information about Dr Donahue's practice that was contained in the e-mail you did not get?
Mr Decter: I have no specific recollection of conversations on Donahue with LeBlanc other than I have a good general sense that he confirmed my view that this was an electrolysis issue, not a threshold issue.
Ms Jackson: As well, I think you said some point in this period you learned he was on the underserviced area program.
Mr Decter: Yes. In fact --
Ms Jackson: So you were having conversations about Dr Donahue, but they were not prominent in your mind.
Mr Decter: He was not the main issue, and it was a kind of sidebar issue which we felt we had to get off the plate so we could get at the major issue, which was --
Ms Jackson: I understand, and I just want to make it clear that with respect to the contents of the e-mail about Dr Donahue, you may or may not have talked to Dr LeBlanc about those contents you now cannot recall.
Mr Decter: I have no recollection of conversations specifically about the e-mail or the contents thereof.
Ms Jackson: You have no recollection, but you might have discussed it; you do not know.
Mr Decter: Well, I would -- anything is possible.
Ms Jackson: All right. Then can I just -- moving through the chronology of November -- take you to the day after this e-mail was sent, November 14 -- sorry, November 13, the day the e-mail was sent? That was a day we have heard from Dr MacMillan was a joint management committee meeting.
Mr Decter: Yes. It was an all-day meeting up at Sunnybrook hospital.
Ms Jackson: What is the joint management committee?
Mr Decter: The joint management committee is a creation of the framework agreement between the government and the Ontario Medical Association, the agreements that I led the negotiations on on behalf of the government. It is a committee comprised of representatives appointed by the government and by the Ontario Medical Association, five from each side. It has terms of reference set out in the agreement and I am designated as the co-chair of that committee by the agreement. I do not remember whether the November meeting was our second or third, but it was one of our early meetings. We meet monthly.
The purpose of the committee is to try and secure a better management of the $3.5 billion, approximately, of physician billings by consensus among the parties. It is something that I think, to give full credit, was a concept that Dr Barkin had developed and had fought for for several years and we were finally able to achieve it in the agreement last year.
Ms Jackson: Now, you have been good enough to give us a copy of the minutes of that meeting of November 13, and an edited version of those is now circulating. I should make it clear to committee members that this editing relates to things that are not only confidential but they are irrelevant to the committee's proceedings. So there is no intention to go in camera and explore what has been edited out of this document, but what remains in is something that relates to the threshold agreement, namely, the care and maintenance of the agreement.
The Chair: And this, to the members of the committee, is exhibit 72.
Ms Jackson: Thank you, Mr Chairman.
On page 6 there is an indication in respect of the threshold agreement that "Dr Graham described a case expected to result in access problems in which physicians went to the media because they were frustrated by the delays in establishing exemption criteria." Do you know, Mr Decter, if that is any reference to the situation involving Dr Donahue?
Mr Decter: No -- well, you are asking me if I know. My memory --
Ms Jackson: Well, was there any mention of Dr Donahue?
Mr Decter: My memory of this discussion is that Dr Graham had raised a point concerning a group of physicians in her home community of North Bay, but that is my memory. Her memory would be a better one to test.
As you can imagine, in chairing an all-day meeting of this sort, one's ability to recall very specific details is limited. The committee does not deal, however, with individual physicians' situations. As you can imagine, it is a broad policy committee, and as the minutes indicate we were discussing the overall issue of the threshold. This was the meeting at which it was communicated by me to the OMA that the minister had made a decision not to approve individual exemptions for the balance of 1991-92.
Ms Jackson: Do you recall any discussion of Dr Donahue in that meeting?
Mr Decter: No, I do not recall any discussion of Dr Donahue in that meeting.
Ms Jackson: Or any review of financial statements or a discussion of his practice?
Mr Decter: No. There has never been a discussion at the committee of any individual physician's situation, and review by the committee of financial records of a physician would be a violation of the privacy act provisions. We are currently entering into an agreement through this with the OMA to share data, but those are data that are of an aggregated form that would meet the test set forward in FOI for it. This is not a forum for the discussion of individual physicians, nor has it been used for that purpose.
Ms Jackson: First of all, on November 14, the day after this meeting, do you recall any discussion about Dr Donahue at all on that day?
Mr Decter: No, I do not.
Ms Jackson: On the morning of November 15, do you recall discussing Dr Donahue with Susan Colley?
Mr Decter: I do not have a specific recollection, but I think it is fair to say, based on the emerging issue in the press, we were discussing how to respond to it. You know, there were a good number of discussions back and forth between various staff in the minister's office and myself, largely them pushing for what were we going to do about the issue of Sudbury, and I think my response which emerged over that period of a couple of days was the letter that I eventually sent to Dr Donahue.
I had indicated to the minister's office that, one, this seemed very much like the epilation issue and, two, that we had no ability to judge whether Dr Donahue, if we took him at face value in terms of the media comments -- whether the threshold was the cause of his need to lay off staff and close his clinic.
You see, it is impossible from the government side of this equation to know someone's financial picture. All that OHIP would know is how much money it was paying him and for what services, but the expense side of a physician's practice is invisible to the government and an area of lively debate, I should say, at negotiations. Are physician overheads 40% or 30%? Do they decline as a percentage as billing levels go up? These are all much-debated questions between the profession and the government over the last two decades in this province.
The only way the government could have access to a physician's cost of practice, and therefore the only way the government could determine whether in fact the threshold was the cause for the layoffs, would have been for Dr Donahue to voluntarily, if you like, open his books. The reason for my letter to him was very much to say that; that we had no ability to respond to his rather vociferous public criticism without his agreement.
Ms Jackson: Before you get to the question of his costs, the question of whether he has a threshold problem at all was one you were sceptical of, because your suspicion was that a substantial portion of his billings would be epilation.
Mr Decter: That was only one of the reasons. Although the public issue developed that we were not providing exemptions from the threshold, we actually had provided, by way of the agreement and subsequent decisions, a substantial number of exemptions. For example, the agreement provides that any physician enrolled in the underserviced area program is exempt from the threshold.
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Ms Jackson: And that was the second reason you were sceptical of whether he had a threshold problem?
Mr Decter: Once I had learned that he was in the underserviced area program until the end of August. I already knew that he was a substantial player in epilation. We did two things with epilation. We did not want to, if you like, hit the physicians with a double whammy, the ones engaged in it. So when we agreed with the OMA on the de-insurance, we also agreed to exempt code Z121 from the threshold. All the earnings for all the physicians performing epilation -- all their earnings from that code -- were also exempt. It seemed highly improbable to me that someone who had all his earnings until the end of August exempt and all his epilation earnings, period, exempt, was likely to be hitting the threshold in a substantial way.
Ms Jackson: But that question was one you could answer from inside the ministry's records. You do not have to have Dr Donahue open his books to tell you that.
Mr Decter: If you take it simply as a question of whether he mathematically was likely to hit the threshold or not -- of course, this is unknowable because the threshold is a perspective thing. You cannot go back and look at 1990-91 and know what someone's pattern of practice would be. For example, staff have estimated that a substantial portion of the people we think will hit the threshold, if they take a couple of weeks' holidays in March, will not, so this is a very variable kind of thing.
Ms Jackson: From anybody's perspective, either Dr Donahue's or the ministry's, to find out if he has a threshold problem in the balance of the year, you are going to have to do a projection.
Mr Decter: Yes.
Ms Jackson: And the ministry is able to do that kind of projection.
Mr Decter: Not with enormous skill, but yes.
Ms Jackson: Well, they were doing it all the way through the fall with all sorts of physicians.
Mr Decter: And all sorts of changes in numbers.
Ms Jackson: They were projecting who was affected.
Mr Decter: Yes. That is why my offer to Dr Donahue was kind of double-barrelled. One, he could, you know, give us access or, two, he could simply meet with Dr MacMillan and they could review this. I think it is important to understand our view as a ministry of what was happening. Our view was that there had been a colossal misunderstanding in Sudbury around this issue. That is what I went up to say on December 5 and that is what I did say on December 5 and that is what I said to Dr Donahue in writing before that date.
Ms Jackson: Okay, but just sticking with Dr Donahue, you are sceptical he has a threshold problem. You could get a pretty good answer to whether your scepticism is right or not by looking at the ministry's billing information and finding out, exclusive of epilation, what does his practice look like on a monthly basis?
Mr Decter: Yes. I did not feel I had a need to know that to deal with the situation, and this process runs on a need-to-know basis. In the seven months I have been there, I have not had a look at any physician's individual billings because, frankly, there is a lot of pressure. I get lots of letters and calls from individual physicians. As you can imagine, with over 20,000 physicians in the province, if the Deputy Minister of Health starts delving into the affairs of individual physicians, it is a pretty significant misallocation of management time. I simply would be doing somebody else's job, and that is not my job.
Ms Jackson: I am not suggesting, Mr Decter, that you would do the analysis, but you certainly were involved in dealing with Dr Donahue. Rightly or wrongly, that issue was one of the issues you had under consideration, with others: what to do about him. Is that fair?
Mr Decter: And what I did about it was to write him a letter saying, "We can't deal with your alleged situation unless you are willing to share information with us."
Ms Jackson: You could not deal with it publicly without that information. You could make an internal assessment as to whether he had a problem by looking at your own records.
Mr Decter: The offer of Dr MacMillan meeting with him was our attempt to address that. It is the same way we dealt with the --
Ms Jackson: Sorry, just keeping with that question for a minute, you cannot go public with your own assessment of Dr Donahue and whether he does or does not have a problem without his consent or without his opening his books. But within the ministry you could find out whether or not he really had a threshold problem, could you not? It is a pretty good handle on it.
Mr Decter: If I feel that in order to give the minister advice on policy I need to look into the affairs of an individual physician, I am entitled under law to do that. It was not my view then and it is not view now that one needs to go to the level of individual physicians. The Sudbury issue as such and the threshold issue as such were best dealt with on the basis of aggregated information, and that is the information I sought and received.
Ms Jackson: But the problem, Mr Decter, the reason I am not understanding that answer, is that you did get involved with trying to see whether Dr Donahue had a problem or not, at least to the extent of writing to him and saying, "You should open your books and then we will be able to deal with this." So you were dealing with an individual doctor's situation.
Mr Decter: I had the view that we were dealing with an epilation situation and that what Dr Donahue had been able to do was dress it up as a threshold situation. My letter to him was to try and get him to understand how the threshold really worked and what exemptions had already been granted.
Ms Jackson: So that assumes there is not a threshold problem, there is an epilation problem.
Mr Decter: That was my assumption.
Ms Jackson: And whether that was a fair assumption or not could have been gleaned by looking at the ministry's records and, in particular, the amount of his epilation billings?
Mr Decter: I presumed that if I were badly off base on this assumption, either Dr LeBlanc or Dr MacMillan, who were aware of the letter, would have signalled me that that was not the case. I did not need to have access to that information.
Ms Jackson: So the check on whether what you are doing accords with the ministry's information base and the decision as to how much of that to communicate to you is with Dr MacMillan and Dr LeBlanc?
Mr Decter: Generally with Dr LeBlanc. I will say here that on a number of occasions when I become particularly wrought up about some issue and direct that a letter be prepared, Dr LeBlanc will sit on the letter for a couple of days until I am maybe calmer and he will come to me and say, "You don't really want to send this letter." So I was used to Dr LeBlanc, who had worked with me on the negotiations, providing, if you like, a kind of sober second thought on the advisability of sending a tough letter out, whether to the OMA or to anyone else. In this case there seemed to be general support from both our legal people and from Dr LeBlanc for the idea that the best way to deal with Dr Donahue was to send him this kind of a letter.
Ms Jackson: In the course of resolving what to do, you recall having discussions with Susan Colley, but I take from what you say you do not recall specifically when you had them?
Mr Decter: No. It would have been the tail end of that week or the beginning of the next week.
Ms Jackson: You do not recall specifically what information you had already received from Dr LeBlanc or Dr MacMillan and might have passed on to her?
Mr Decter: I would have had only general information to pass on to her.
Ms Jackson: Do you recall specifically what information you did pass on to her?
Mr Decter: No, I do not.
Ms Jackson: All right. I take it from what you say -- would you expect that you would pass on to Susan Colley detailed billing and practice information about Dr Donahue?
Mr Decter: No, although I have been directed by the minister since my arrival to treat Susan Colley, who is her senior political aide, as I would treat the minister; that is, Susan Colley is entitled, based on the directive I have from the minister, to access to information generally in the ministry. However, I have never provided personal information to the minister.
I advised her early on, largely reactive to what I was able to learn about Minister Gigantes's resignation, that it seemed extraordinary folly to me for a minister to have information that he or she is not entitled to put in the public domain, and I would extend that same logic to the minister's staff. So that my view was and remains that while there is a legal ability to know, there is not a need to know and that information is best kept at a level in the ministry where it is absolutely required for working purposes. As you can imagine, a ministry that has gone through the trauma of losing a minister over an FOI issue is a ministry that is significantly sensitive to those issues.
Ms Jackson: I take it from that that even where there is a need to know you would be very hesitant to provide information of a confidential nature to the minister, to guard against the blurting-out response?
Mr Decter: I would want a written directive. We have had this conversation on a couple of occasions and my view is that there is almost no circumstance in which a Minister of Health needs to know information at that level. We are dealing with large-scale policy issues. We are dealing, even in the threshold case, with the ability, I think, to provide the minister with all the insight she needs based on aggregated data, and that is what we use.
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Ms Jackson: Is it fair to say that you could be a little clearer with what you can provide Susan Colley, because you do not have to guard against the blurting-out reaction in the executive assistant as opposed to the minister?
Mr Decter: I think that is fair. There would be times when Susan Colley would have to be certain of advice that we were giving, to assure herself that she could support that advice from her side of the operation. But that would still stop well short of anything that would be personal information under FOI.
Ms Jackson: Do I take it from that that you would not expect that you would indicate to Susan Colley, for example, the specific amount of epilation billing that Dr Donahue was doing?
Mr Decter: In fact, unless you were to put me in camera and let me have another look at that memo, I would not know what the specific amount was and would not have known of that amount in this period. One could hazard a guess, based on 14 staff and the public stuff, that he was doing a great deal of it, but I do not know that number and I would not have known that number at any time except during the handover of whatever the exhibit number is.
Ms Jackson: Sorry, the handover of the e-mail from Mr Teatero?
Mr Decter: Yes, to you and to Mr Taman.
Ms Jackson: I understand from what you are saying that you would pass on to Ms Colley specific kinds of services that were done by Dr Donahue and whether they could be done by others.
Mr Decter: That is a different question. The issue -- and it is a complicated one -- is, if an area is underserviced for a particular specialty -- I will walk through this carefully because it goes to the heart of part of the threshold issue -- you have to ask the question as to whether the physicians, those specialists, are actually providing specialty services.
Let me make that less complicated if I can for the committee. If there is a view, for example, that there is a shortage of obstetricians in, say, Windsor, one might in the first round feel that one could get to that on a simple calculation of population and number of obstetricians and what the royal college would recommend, but one would want to take a general look or a hard look at whether the obstetricians were actually performing obstetrical services or whether a great deal of what they were doing could equally be provided by family practitioners. So the issue of the composition of a physician's billings is a relevant one.
In fact, the amendment that has been agreed to to the underserviced area program between the government, the minister, and the Ontario Medical Association specifically provides for a practice review as a condition of an application, very much to get at that issue. If, for example, an area has a sufficient number of family practitioners or a surplus of family practitioners, while one could get on a mathematical ratio to a shortage of obstetricians, there may be no shortage in fact of available physicians to deliver babies -- that is, a family practitioner could do that just as effectively. So there is a need, I think, in this whole issue to look at the composition of what a specialist physician is doing, as well as their numbers.
Ms Jackson: I take it, though, from what you said earlier that you do not think it likely that you would say to Susan Colley that Dr Donahue is doing a large amount of a particular kind of service.
Mr Decter: Well, epilation, because --
Ms Jackson: Other than epilation.
Mr Decter: No, I would not have had any knowledge of that.
Ms Jackson: And if you had any knowledge, you would not expect you would pass it on?
Mr Decter: No.
Ms Jackson: At some point in this period, post November 15, you had a meeting with Shelley Martel, did you?
Mr Decter: Yes. I have not been able to situate the date. It was the week that ended with the November 30 meeting. I can recall the conversation quite vividly. I had a call in the morning from Minister Martel, who wanted to see me to talk about the cardiovascular-cardiology situation in Sudbury. I remember it because she wanted to come to my office and I said, on protocol grounds, it was quite wrong for a minister to visit a deputy minister. It would be much more appropriate for me to come to her office. She said no, she was between meetings and she would drop in over the lunch-hour to see me for a few minutes to convey her concerns. So I remember the conversation. I had, as part of my duties in Manitoba, responsibility for protocol and I still consider it quite wrong that a minister would journey to see a deputy minister. It is not how it should work.
I remember the meeting well because I think it was probably the first time I had had a meeting with Minister Martel. I had been, during the negotiations, before committees on which she had sat, but I had never had and have not since had a one-on-one conversation with her. She had had a meeting with the cardio -- if I can abbreviate it so I do not have to say "cardiovascular-cardiology" all the time -- the cardio people, physicians in Sudbury, and she had, on what I recall to be some green paper, extraordinarily detailed notes on her meeting, down to the level of details about these physicians' practice, all of which they had provided to her. She had written it down.
I recall thinking, "Oh, my God, if I get into the detail of this," I mean, it is the same reaction that I have generally, that you cannot do my job and get into the detail of individual physicians' activities. You would just be swallowed up. So I let her keep the papers. I did not want to really get into the issue at that level. I said to her that we were concerned, on what we had learned, that there might be an impact on cardio services in Sudbury, and that my response was that Dr LeBlanc and Dr MacMillan were going to Sudbury on the Saturday, which I think was November 30, to meet with those physicians. That answer seemed to satisfy her and that was the end of our conversation.
But I would say two things about it. One, she was very, very concerned about the cardio situation. She felt that it was a very serious situation. That was the issue we dealt with, and she seemed satisfied with my response that I would send the two relevant people up to this meeting.
Ms Jackson: Did you keep any notes or record of that discussion?
Mr Decter: No.
Ms Jackson: You have said you think it was in the week leading up to November 30, which was a Saturday. Is it possible it was the previous week?
Mr Decter: It seems unlikely to me, but again, because it did not show up on my schedule, because it was set up on short notice the same morning, my memory of it was that it would have been that week, but it could have been the previous week.
Ms Jackson: And how long did this discussion take?
Mr Decter: Oh, 10 or 15 minutes. It was a pretty short meeting, once I could get her to stop telling me all the kind of details she had and push it back to a policy level.
Ms Jackson: Do you recall any discussion of Dr Donahue in that meeting?
Mr Decter: No, I do not.
Ms Jackson: Is it possible that there was some and it just does not stick in your memory because, as you have said before, you did not think that was the main issue?
Mr Decter: At best, there might have been a passing reference, but my memory is that she was very, very focused on the cardio issue. That was the main issue. But I think, to the best of my recollection, we never discussed Dr Donahue.
Ms Jackson: Can you turn up exhibit 59, please? In terms of locating it in time, that is a memo from Susan Colley to your executive assistant asking for a debriefing on the meeting between the two of you. As far as you know, you only had one meeting with Shelley Martel?
Mr Decter: Yes, I had only one meeting with her. This would --
Ms Jackson: So it would pre-date this e-mail?
Mr Decter: Yes. So it would suggest, if we are counting back, that it would have been the 25th or the 26th.
Ms Jackson: Or, as you have said, possibly the week before.
Mr Decter: It could have been the week before, but --
Ms Jackson: If it was the week before, that is the week in which you wrote to Dr Donahue suggesting he open his books?
Mr Decter: You are --
Ms Jackson: Let me just give you the letter to remind you. That is November 19.
Mr Decter: Yes. Well --
Ms Jackson: And if we could mark that as the next exhibit, Mr Chairman, I think exhibit 73.
Mr Decter: I think you may be oversimplifying to suggest that the letter was simply about opening his books. The letter was, first of all, to try to correct the misunderstanding, but in terms of time sequence, yes, it is most likely that I met Martel after this letter went and certainly before Sue Colley asked for a debriefing on the meeting.
Ms Jackson: And during the --
The Chair: Sorry; that will be marked as exhibit 73.
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Ms Jackson: So your meeting with Shelley Martel was either just before or just after the sending of this letter and at a period, I assume, when you were still awaiting a response to the letter?
Mr Decter: I have never received a response to this letter.
Ms Jackson: I understand, but in the period immediately afterwards you would not know that. Is that right?
Mr Decter: True.
Ms Jackson: So you were still awaiting a response to this letter?
Mr Decter: Yes.
Ms Jackson: So Dr Donahue was still an issue at this point?
Mr Decter: My own --
Ms Jackson: Not the most important one in your own mind, I think that is clear, but he was still an issue.
Mr Decter: Yes.
Ms Jackson: What you say in the third paragraph is that you are requesting his "consent to release the above-noted information publicly, in order to ensure compliance with this legislation"; that is, the freedom of information act. Are you speaking about releasing information you obtained from him or releasing information obtained from the ministry?
Mr Decter: Well, I think if you follow the logic of the paragraph it is first of all a request -- sticking with this paragraph as opposed to the more general points made above. We had no awareness or I had no awareness if any of the above measures would impact on his practice. The request was first of all for him to give permission to determine the actual impact of the threshold payment, and then, second, to allow the ministry to say something publicly; that is, "There is no impact," or, "There is an impact."
Ms Jackson: All right. Let me take you back to the paragraph before that one, the second paragraph. You make reference to the underserviced area program and the fact that epilation is exempted from the threshold and then you say, "I am unaware if any of the above measures will make an impact on your practice." By this date you did, of course, know that Dr Donahue had been on the underserviced area program till the end of August.
Mr Decter: Yes.
Ms Jackson: So you certainly knew --
Mr Decter: Well, no, let me be fair. I learned somewhere between November 8 and December 5. I do not recall when in that period I became aware, but somewhere there.
Ms Jackson: I think you earlier said you had known by the time you sent this letter.
Mr Decter: I think that seems like a reasonable assumption.
Ms Jackson: So is it not fair that you must have known it would have an impact on his practice but you did not know the amount of the impact?
Mr Decter: I think that is fair.
Ms Jackson: In respect of epilation, again, you knew that he did a reasonable amount of epilation, so you knew that the delisting of that would have an impact on his practice but you did not know the amount of the impact.
Mr Decter: Yes. If you are suggesting that a better wording of that sentence would have said, "I'm unaware of the extent of any impact of these measures on your practice," that would be 20/20 hindsight.
Ms Jackson: That last sentence in hindsight rather understates the level of knowledge you had about Dr Donahue's practice at that time, does it not?
Mr Decter: It could be read that way.
Ms Jackson: And you never received a response?
Mr Decter: No, although when I visited Sudbury on December 5 there was a story in the newspaper in which Dr Donahue said he had no intention of sharing any information with the government, and he repeated that statement at the public meeting on December 5. So I was aware on December 5 that he was unlikely to send a favourable reply.
Ms Jackson: All right. Let us come, then, to the December 5 meeting which you attended in Sudbury. Can I ask you, first of all, to turn up exhibit 8, which is the media package that was prepared for that meeting. My question on that, Mr Decter, is if you know when that was available.
Mr Decter: My memory is that it was available by plane time -- I mean as a package -- on the 5th when we went up and that there was some scrambling to get all of it together, but it must have been available somewhat earlier, because the whole package was vetted for FOI considerations by Andrew Parr at my request.
I wanted to be very sure that in trying to clear up the misunderstanding in Sudbury and in trying to have some examples which illustrated the rather large number of exemptions that had already been made -- we were trying to shift ground from the view that no exemptions were being made to the more accurate perception that a number of exemptions had already been made which would have an impact -- I wanted to be very sure that we had no FOI exposure on the package. I think Mr Parr would be able to tell you when he conducted that review, but he obviously had to have had the package for some number of hours to review it. But it came together, I think, through that week in stages.
Ms Jackson: And once it came together it was reviewed by Mr Parr? Is that the way it works?
Mr Decter: That is my understanding, yes.
Ms Jackson: So it would have been available in its reviewed form just shortly before the actual trip up to Sudbury on the 5th.
Mr Decter: Yes. My memory is, we went back and forth a bit on the speech.
Ms Jackson: Within the package there is a list, on this question of who is already protected or exempted, of specialists on the underserviced area program that is dated October 31, 1991. It is a list of 11 pages about in the second half of the package. Have you found that?
Mr Decter: Yes, I have.
Ms Jackson: Is it fair that this is one of the things that you wanted vetted by Mr Parr?
Mr Decter: My memory is that this was public domain information. I do not know if it had been sent out as of October or November. I wanted the whole package vetted, but my understanding of this list was that it was public information.
Ms Jackson: All right, some time earlier than that week, then.
Mr Decter: Well, presuming from the date of October that it would have been something that was extant.
Ms Jackson: Is that just a presumption from the date or do you have any actual recollection of it being publicly available?
Mr Decter: No. My recollection is that I was told it was public information. The rest is a supposition from the date.
Ms Jackson: All right. Was Dr Donahue present at the December 5 meeting?
Mr Decter: Yes, he spoke at the December 5 meeting.
Ms Jackson: And did you learn anything about his practice that you did not already know as a result of that?
Mr Decter: No, I did not.
Ms Jackson: Do you remember what he said?
Mr Decter: Let's see if I can separate Dr Donahue. There were, as I recall, somewhere between 15 and 25 speakers at the meeting, including a number of physicians. Dr Donahue, as I recall, spoke fairly early. There was a young child who came out of the crowd with a petition, I think a patient of Dr Donahue's. I recall him saying quite forcefully that the issue was not his billings; the issue was service. I remember when I spoke, echoing that, saying that one of the great dilemmas of a fee-for-service system is simultaneously someone's billing is also service, so one has the dilemma in this instance that the two are not easily separable.
Beyond that, I think I was more impressed by the oratory of the gentlemen from Mine, Mill, from the Steelworkers and from the two opposition parties than I was by Dr Donahue's speech.
Ms Jackson: Does that mean you do not remember anything more about it?
Mr Decter: No, but I believe the entire meeting was videotaped and, as I indicated to Mr Taman several weeks ago, I, for one, do not want to sit through another rendition of it, but counsel might.
Ms Jackson: All right. Was Dr Hollingsworth there?
Mr Decter: Yes, he was.
Ms Jackson: Did you know who he was before?
Mr Decter: No, and I recall this because when he got up to speak -- I had been able to work out who a number of the physicians were and some of them introduced themselves or were introduced, but Dr Hollingsworth, as I recall, got up without an introduction and I was not certain who he was. Dr MacMillan was sitting next to me. I turned to him and said, "Who is that?" I had the media package on my lap because I was getting ready -- it turned out I had three hours to get ready to say my piece, but that was not clear to me at the beginning of the meeting. He, as I recall, pointed at Dr Hollingsworth's name on the list rather than speaking, because it was not an environment in which you wanted to have a conversation. So that is, I think, when I learned that was Dr Hollingsworth up saying those things.
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Ms Jackson: Was it this list of specialists that we are looking at that he pointed to?
Mr Decter: I do not have a very clear memory. I remember him pointing at Hollingsworth's name on something, you know. I think it was probably that list, but I could not tell you for certain.
Ms Jackson: Do you know if it was on a list or might it have been in something else?
Mr Decter: The only memory I have is that he pointed at the name on something rather than saying it to me.
Ms Jackson: Do you remember if he reached into his briefcase and pulled out a file when he did that?
Mr Decter: No, I have no memory of that.
Ms Jackson: Do you remember whether or not he had a confidential file on his lap when he did that?
Mr Decter: No, I do not. To the best of my knowledge, we both were sitting there with the media package on our laps.
Ms Jackson: But you do not specifically recall what he had?
Mr Decter: No, I do not.
Ms Jackson: All right. I understand that at that meeting, in addition to yourself, there was a Mr David Sword from Ms Martel's office?
Mr Decter: Yes.
Ms Jackson: And Ms Murdock, the MPP?
Mr Decter: Yes.
Ms Jackson: And Paul Howard from the Ministry of Health office?
Mr Decter: Yes. Four of us came up to the meeting: Dr LeBlanc, Dr MacMillan, Paul Howard and myself.
Ms Jackson: Was there anyone there from Mr Laughren's office?
Mr Decter: Not to the best of my memory, but it was rather a large meeting and there might well have been.
Ms Jackson: After the meeting, do you recall discussing the meeting with those people?
Mr Decter: Yes. We adjourned to the hotel -- I do not recall the name of it -- and had a few drinks and licked our wounds, if I can put it that way. It was easily the most difficult meeting I have ever been at in my life. There was a great deal of anger and a great deal of misunderstanding about the issues, and we adjourned.
Ms Jackson: Do you recall if there was any discussion at any time through the evening of Dr Donahue, apart from what Dr Donahue said himself?
Mr Decter: No, there was not. The discussion was of the meeting, and there was certainly no discussion in that forum of Dr Donahue or any other physician.
Ms Jackson: The next morning you returned to Toronto, I understand?
Mr Decter: Yes, I did.
Ms Jackson: To deliver a speech at a law and ethics conference in Toronto fairly early in the morning?
Mr Decter: Yes. It was a very long night. When I could not get to sleep I put the TV on, and they were rerunning a broadcast of the meeting, about the last thing I wanted to see.
Ms Jackson: Not a great night.
Mr Decter: It was not a good night. I think if I were not so fond of Gilbert Sharpe I would have probably not gone to do the speech because I was feeling pretty run down, but that morning we also had a meeting of the forum. We have a monthly meeting, not only with the Ontario Medical Association under the joint management committee but we have created or recreated a forum with the Ontario Hospital Association, and it was to meet that whole morning. Gilbert had been able to convince both Dennis Timbrell and I to attend his conference on the basis that we would both be late for our joint meeting and that was therefore acceptable.
Ms Jackson: So that is how you came to be at the law and ethics conference?
Mr Decter: Yes.
Ms Jackson: And you left right after you had given your speech?
Mr Decter: Yes, a bit.
Ms Jackson: Can you turn up exhibit 17, which is in the black book in front of you. That is an exchange of questions from Mrs Dodds to Dr MacMillan arising out of a conversation she had been part of the night before with Shelley Martel. The conversation of course is the genesis of these hearings. Were you present when that exchange took place, Mr Decter?
Mr Decter: No. I, as you indicated, came to the meeting frankly just in time for the speech and got up and gave it. I believe Mr Timbrell also made a speech, and we left together immediately after that to come back to the Hepburn Block.
Ms Jackson: When did you first become aware of this exchange?
Mr Decter: I cannot give you the hour. Dr MacMillan called me, I believe, late that afternoon and mentioned to me that there had been a question raised by someone at the conference. This was rather a large conference, my guess would be 300 or 400 people, and he was concerned because there had been an allegation by this individual that there had been some disclosure or potential disclosure of information. I did not get a lot of detail from Dr MacMillan. What he was seeking was my authority to deal with the press on the issue, if need be, and I said, "Certainly, deal with the press."
Ms Jackson: Was there any indication to you at that time that this involved Ms Martel?
Mr Decter: I do not have any recollection that our conversation was that specific. It was, you know, Dr MacMillan saying, "You know, I was on this panel," or: "I was at this thing. I got asked this question. It could be something that the media are interested in and do you want me to handle it?" I said to him, "Sure, go ahead and handle it."
Ms Jackson: Any indication in that conversation that the issue involved the release of confidential information with respect to a specific physician?
Mr Decter: My memory is that it involved an allegation of release of confidential information, but I do not have a clear memory that it was information about a physician.
Ms Jackson: Did you give Dr MacMillan the authority to deal with the press?
Mr Decter: Yes.
Ms Jackson: Did you do anything else as a result of the call?
Mr Decter: No.
Ms Jackson: When did you next hear anything about the Thunder Bay incident involving Ms Martel and Mrs Dodds?
Mr Decter: I had a call the next day. I should say in terms of the sequence of this that Dr MacMillan and Paul Howard and I came back on the Friday morning from Sudbury, but we left Dr LeBlanc behind, some might say as a hostage, for a couple of days. We left him behind because our intent had been to shift the issue, and I had acknowledged in my remarks that we thought there was a real problem and that we were willing to deal with the real problem.
Dr LeBlanc spent Friday and Saturday in Sudbury, meeting individually with a large number of the people who had been involved: the hospital administrator, the physicians. He called me on Saturday several times to let me know what was going on and eventually to have my direction that he should return to Toronto because I thought he was getting way down the road on the issue and we had not had a chance to reflect on all of it.
But in the course of Saturday -- I remember it because Eugene and I were back and forth a great deal on the phone -- eventually he faxed me the editorial that ran on the front page of the Sudbury Star, which was about the nicest editorial that one could imagine seeing. It was an editorial that strongly supported the government view that facts were not underlying the situation.
Some time that afternoon I had a call from Melody Morrison of the Premier's office. She alerted me for the first time to Minister Martel having said something controversial at what she described as a cocktail party in Thunder Bay. I was aware that Minister Martel was in Thunder Bay, because she was not in Sudbury and the explanation given was that she had a previous commitment to be in Thunder Bay. The Sudbury meeting featured, I think, as a dramatic flourish, empty chairs with the Premier's name, my minister's name, Minister Martel's name and others. The Treasurer had, I believe, tried to get back and was prevented by weather. So I had known Minister Martel was in Thunder Bay.
Ms Jackson: Did she tell you anything else about it?
Mr Decter: Well, she told me something that caused me not to connect these things together. Her report to me was that Minister Martel had been involved in an argument which involved a Thunder Bay dermatologist. I said to her, "Well, to the best of my knowledge, I do not even know if there is a dermatologist in Thunder Bay," because I was remembering, you know, the general statements by Dr Donahue that he was the only dermatologist in the north, or one of the only, and that there were patients being flown from Thunder Bay to Sudbury for epilation treatment.
Ms Jackson: Did she tell you what Minister Martel was supposed to have said?
Mr Decter: Not verbatim, but that she had said some things about the possibility of charges involving a Thunder Bay dermatologist. I guess, in hindsight, my reassurance will not seem terribly well informed. I said to Melody Morrison that we had no issue involving a Thunder Bay dermatologist, that I was not even sure there was one, that I did not think there was much here and that I would send her the package that we had released in Sudbury on the Thursday night, which contained the ministry view on this whole issue. That was the end of our conversation. So on the Saturday I did not connect the MacMillan phone call to the Morrison phone call or either of those things to Dr Donahue.
Ms Jackson: What did you understand was the purpose of Ms Morrison calling you on this issue?
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Mr Decter: I presume that she wanted to alert me as the senior official in the Health ministry to the possibility that there was a problem of some magnitude. It struck me on the Saturday, and still strikes me, there was nothing of a substantive nature that was going to change between Saturday and Monday, and I made a note that in briefing the minister on Monday morning I should reference the call as well as give her a debrief on the Sudbury meeting.
Ms Jackson: Did you do anything else as a result of the information you received from Ms Morrison before Monday morning?
Mr Decter: No, I did not.
Ms Jackson: Did you know that your minister was going to a cabinet meeting on the Sunday?
Mr Decter: Yes, I think I did.
Ms Jackson: You did not think this was something that might come up then or that she should know about at that cabinet meeting?
Mr Decter: No, I did not, and let me underscore I have called the minister infrequently on weekends. We had a Saturday night on the phone together during the meningitis outbreak in Ottawa. I would tend to confine my calls to the minister on a weekend to issues that would involve health and safety of the population. An issue that was in the category of something that had happened that we were going to have to deal with did not strike me as something that needed an urgent treatment.
Ms Jackson: If you had made the connection on Saturday that this was the incident that Dr MacMillan was talking about, and if you had connected that in turn with Dr Donahue, would you have behaved differently?
Mr Decter: No, I would not, and I have so informed the minister. I think it is fair to say we would probably disagree on that, but it is not unusual for ministers and deputy ministers to have differing perceptions of urgency on issues.
Ms Jackson: Is it fair then that the next event in terms of your involvement with the Thunder Bay incident is your conversation with the minister on Monday morning?
Mr Decter: Yes, it was, and if I had not been scheduled to see the minister first thing Monday morning then I might have gone out of my way to make a contact. But absent the connection which I had not drawn between the two incidents, if you can refer to them that way, MacMillan's call of Friday and Morrison's call of Saturday, I did not raise it until Monday morning. My recollection is just as I was raising it on Monday morning Sue Colley received a call. She left our meeting to take a call from the Premier's office and came back with the more accurate portrayal of these events, that they were all the same incident. That is when we first really became collectively aware of the issue.
Ms Jackson: At that time did the minister ask you what information you had about the release of confidential information within the ministry?
Mr Decter: Yes, and more importantly she asked that all steps be taken to, (1) determine if there had been a release of information, and (2) to ensure that there was no further release of information if in fact there had been any released.
Ms Jackson: What did you do to be able to determine, to be able to advise her whether or not there had been a release of information?
Mr Decter: There was contact with Bob MacMillan. I do not have a clear recollection of whether I contacted him directly or other staff in the meeting contacted him directly, but we did a round robin of talking to everyone who had involvement with this so that the minister could be assured, by the time she went in the House, of the situation. I believe the assurance given was to the best of our knowledge no information had left the ministry.
Ms Jackson: In so far as Dr MacMillan was concerned that was based on some conversation with him by someone?
Mr Decter: Yes. I think he would be in a better position to know who spoke to him. I do not have a recollection. It is fair to say that on many of the issues my executive assistant would tend to do the follow-up. In an average meeting with the minister we might cover 15 or 20 issues and follow-up would often be delegated.
Ms Jackson: Do you remember what, regardless of who made the call, they were asked to check with Dr MacMillan about?
Mr Decter: Whether we had any information that would suggest that personal or confidential information had left the ministry.
Ms Jackson: That general? No reference to Dr Donahue, no reference to Shelley Martel, no reference to anything more specific?
Mr Decter: I think in the context of Minister Martel's comments -- I mean, it was clear what was driving this was the Martel comment in Thunder Bay.
Ms Jackson: But you do not know -- do you know whether in fact those specifics were given to --
Mr Decter: No, I do not.
Ms Jackson: -- Dr MacMillan when the inquiry was made?
Mr Decter: No.
Ms Jackson: On December 9 in the House, Ms Lankin said to the House: "I have very specifically asked and received assurances from my deputy minister, who has heard directly from the director of OHIP, that no confidential information with respect to doctors' files and their billings and their incomes has been shared with anyone outside the OHIP department which has proper access to that information. I have not seen it, the Minister of Northern Development has not seen it and no other MPP has seen it."
I take it you cannot recall whether in fact you directly spoke to the director of OHIP.
Mr Decter: No, I cannot recall that.
Ms Jackson: And apart from who spoke directly to OHIP, is the assurance that "no confidential information with respect to doctors' files and their billings and their incomes has been shared with anyone outside the OHIP department which has proper access to that information" a statement that would have been appropriate based on what you told the minister?
Mr Decter: Well, the choice of "OHIP department" is not a term that has an enormous amount of meaning in the ministry. There was at that time a health insurance division which would have involved people in Kingston and in the Hepburn Block. I would -- my memory is that the minister was given strong assurances that we had no information about anything leaving and that those were given on the basis of a couple of hours of contact, but --
Ms Jackson: But you cannot be any more specific about what.
Mr Decter: No, I am afraid I cannot.
Ms Jackson: Have you ever discussed this incident with Ms Martel?
Mr Decter: No. I had only the one meeting with Minister Martel back in -- whichever of those weeks in November. I have not met with her since.
Ms Jackson: Have you ever been party to a discussion about how the government should handle this issue in the House?
Mr Decter: No, I have not been party to -- well, let me be careful about that. I did advise my minister by the 11th of December, the morning of the 11th, that I believed the best way of handling the issue in total was to refer it to the privacy commissioner.
Ms Jackson: And that was done?
Mr Decter: Sorry?
Ms Jackson: That was done?
Mr Decter: That was done that morning by me as the deputy.
Ms Jackson: Do you recall when you first learned of the e-mail that is now marked as exhibit 44?
Mr Decter: I learned that there had been an e-mail on the evening of December 10. I was called at home by Dr MacMillan, who had had a call from someone in the press. It was at that time I learned that there had been material that had come from Kingston to Hepburn and had been subsequently retrieved, and that based on the phone call that Dr MacMillan had had from a reporter, he was concerned that information might not have been fully retrieved.
Ms Jackson: Did you inquire of Dr MacMillan why you had not heard about it earlier?
Mr Decter: No, I did not. We arranged that we would brief the minister the next morning, early, and that he would be available by phone in Kingston at 8 o'clock or whatever, 7:30, whatever time we were meeting, so that he could provide briefing. The next morning we decided that he should come down to Toronto, as the gravity of the thing became clearer to us.
The Chair: Thank you. I have been informed by counsel that that is basically the completion of her questioning. There may be the need for a few minutes of questioning by counsel when we resume at 2 pm. At this point in time, I would recess this until 2 pm.
However, for members of the committee, just before we do so, I would like to indicate that we are going to be distributing as exhibits 74 and 75 the edited transcript of in camera proceedings of February 17 with Dr Hollingsworth, and the edited transcript of an in camera proceeding of February 19 with Mr Corea. That is going to be marked, the February 17 edited transcript, as exhibit 74, and the edited transcript of February 19 as exhibit 75.
Having said that --
Mr Christopherson: On a point of order, before we leave.
The Chair: Mr Christopherson, yes.
Mr Christopherson: I had asked earlier this morning, and I just made reference to that entire -- I said "that week," and now we are only getting a part of that week. There is -- sorry?
The Chair: Mr Christopherson, during that week, this is all of the in camera proceedings.
Mr Christopherson: Oh, okay, last week. I think I made the reference last -- I have to check the Hansard if I have been unclear.
The Chair: I think you were probably referring to last week's in camera proceeding, if I am right.
Mr Christopherson: Okay, yes.
The Chair: Has that --
Ms Jackson: I believe, if everything has gone as it should, what you should be getting is all of the edited transcripts of last week. I think that is what that is.
Mr Christopherson: I do not believe the Chair indicated we are getting that day.
The Chair: Mr Christopherson, with respect to the edited transcripts marked as 74 and 75, those are all the transcripts, as edited, which have gone before the subcommittee. There is a further edited transcript which is going to go before the subcommittee today and then after approval by the subcommittee would be released.
Mr Christopherson: If I could, Mr Chair, the practice has been without exception that we have given a rubber stamp to the releasing of the information. In fact, the last time, I do not believe we even circulated them to the members of the subcommittee before we approved them.
The Chair: Mr --
Mr Christopherson: Let me finish, Mr Chair, please. My point is that -- I will be very straight -- the information that we are seeking is in answer to a lot of the public and media speculation about what the Minister of Health believed was the plausible answer. We would very much like to get that information out because we do not believe it is confidential, and it is information people would like and we were hoping that it would be released today. Is it possible that you could either have a 30-second subcommittee to accomplish that, or acknowledge right now that we will release it if it is ready to go?
The Chair: Mr Christopherson, the practice of the committee, as you are very well aware as a member of the subcommittee, and that is without exception also, is that the edited transcript is provided to the subcommittee and then approved. It is my intention that we will have a subcommittee meeting today and we will deal with that particular edited transcript as we have with all other transcripts that have dealt with proceedings in camera. If there is any wish on your part to change the proceeding as we have already decided, then that can be brought up at a meeting, but it is my intention to abide by the rules of the subcommittee, as you are well aware.
Having said that, I would recess until 2 pm.
The committee recessed at 1203.
AFTERNOON SITTING
The committee resumed at 1410.
The Chair: Good afternoon. We will call the committee to order for this afternoon's hearings. At the end of the morning session, Ms Jackson, I am advised, had completed her questioning. In keeping with the previous process, I will now call upon members of the third party to start their questioning. I am limiting this to 45 minutes per caucus. I would also like to remind members of the committee that there will be the necessity for an in camera session with Mr Decter after we have completed the rotation. Mr Harnick.
Mr Harnick: Thank you. Mr Decter, I am a little confused listening to the evidence as people relate it to us from the ministry. I am confused because I can see a certain strategy that I believe you were using, yet everyone comes in and denies that strategy. Can you tell me please, having now, I assume, gone over the events with Dr MacMillan and Dr LeBlanc and the various ministry people, what the strategy they were using to deal with the problems in Sudbury was?
Mr Decter: Well, let me correct a couple of impressions implied in your question. First of all, I have not gone over any events or testimony with Dr MacMillan or Dr LeBlanc; I think I indicated that earlier. My testimony is my own testimony. So if you are a little confused, I think that is something you are going to have to sort out listening to the different testimony.
But let me go to your question, which, if I understand it, is what strategy was being employed by the ministry in dealing with the issues in Sudbury. I think that our strategy was very clear in my letter to Dr Donahue and even more clear in the statement I made on December 5 in Sudbury. Our view of the situation was that the physicians of Sudbury had developed a genuine misunderstanding of the impact of the threshold issue on specialist services in their community and our strategy was to try and bring as much information to bear so that both the physicians of Sudbury, very few of whom were affected by the threshold, and, more important for us, the people of Sudbury in the north would understand that what appeared from the press to be a serious threat to medical care and service was in fact not in our view a threat to that service but was a result of a good deal of what I think one would carefully describe as advocacy by certain physicians in the community to get a change in a policy they did not like.
I guess I would further add that Sudbury and District Medical Society, or the Sudbury district, was, I think, the only place in the province where the agreement between the OMA and the government did not achieve majority support from the physician community. In fact, the agreement was ratified some 85% or 87% overall. There were still issues being raised about the threshold as an idea when it had been accepted by the vast majority of physicians in the province.
So we were trying to distinguish, I think, in our communication with Sudbury between something that had been agreed between the profession and the government and formed part of the framework agreement and something that might be an impact or an outcome from that agreement.
Mr Harnick: You see, my concern is that outwardly you are all telling us your concern was with the threshold, yet the evidence I keep hearing is that you want Dr Donahue to open his books. It has nothing to do with settling a policy issue with the threshold.
You took confidential files to Sudbury. Dr MacMillan told us that, although he said he never used them. I do not know why he took them if he never used them. You have exhibit 44, which is before us and which you have now seen. You tell us today that you did not believe Dr Donahue's problem was a threshold problem; it was really an epilation problem. You have described him as a noise-maker. You told us you were sceptical about his motives. Then we have Ms Martel with her comments in Thunder Bay, which you heard on the Friday, but then when it was related to you by a different person in the Premier's office on the Saturday, you said you never made the connection.
It leads me to believe that the threshold was the furthest thing from the minds of the people in your ministry who were dealing with this problem. It seems to me the strategy here was to openly discredit Dr Donahue to make your point, and I do not know how you can deny that with this kind of evidence.
Mr Decter: If there was a question in there, my basis for not accepting either your premises or your conclusion is that I do not think there is any truth in them at all. There was not a focus on either Dr Donahue or on discrediting him. Quite the contrary. I went out of my way in Sudbury to make clear, one, that we understood and respected the confidentiality issue. That was at the beginning of my remarks to the meeting. In fact, I came back the next morning to attend a conference that hopes to advance the cause of a confidentiality bill applicable to the whole --
Mr Harnick: That had nothing to do with Dr Donahue.
Mr Decter: Excuse me?
Mr Harnick: That conference was planned way before any of this happened. It had nothing to do with Dr Donahue.
The Chair: Order, please.
Mr Harnick: Surely you are not saying you went to that because you were trying to --
The Chair: Mr Harnick, if you are asking a question, if you could allow Mr Decter to respond, and then there will be ample opportunity for further questions.
Mr Decter: You have made a rather sweeping assertion of motive. I am attempting, as clearly as I can and as reasonably as I can, to address that. The ministry is vitally concerned with confidentiality. That is why we were at that conference. That is why we had organized that conference. The ministry had -- and I have already spoken of this -- lost a minister within the previous period of time on the confidentiality issue. That is not something public servants have any pride in. Public servants take very seriously these issues, the laws under which these issues are governed.
I just find it quite distressing that you would look at this evidence and conclude there was a strategy that had at its heart doing damage to the reputation of an individual physician. That has not been my intent. In fact, quite the opposite. I think what we were seeking to do was to have a discussion based on facts and what we were having was a discussion based on allegations. The reason for travelling to Sudbury, the reason for corresponding with Dr Donahue, was to try to get the debate shifted on to the facts of the issue.
Mr Harnick: Mr Decter, tell me this, what possible benefit would there be to obtain the permission of Dr Donahue to investigate and publicly discuss his practice pattern? Why would you not rather privately discuss it if there was a misunderstanding between your ministry and the doctor? Why would you want to publicly discuss it?
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Mr Decter: The doctor had made repeated public assertions that the reason for the closing of his office was purely due to the $400,000 annual cap. First of all, there is no $400,000 annual cap. There is a discount which applies above certain billing levels, but it is not a cap and to describe it as such is inaccurate.
The second point here is that he had created the public issue and he had centred that whole issue around the threshold. So the reason I wanted a public discussion was that if he was unaffected by the threshold, then I thought that was a very important issue for the people to know. If his decision to close his clinic was not based on the threshold, then I thought the people of Sudbury were entitled to know that. All of the evidence in the public domain suggested, as I said earlier, that this was an epilation issue and the closure of his office or clinic was due to the deinsurance of epilation. If Dr Donahue had been saying publicly, "I'm closing my clinic because the government has deinsured epilation," then I think our response would have been to agree with him.
Mr Harnick: Are you telling me, then, that you honestly believed that this man wanted all of these confidential issues that person after person from your ministry has said are sensitive and confidential, are you telling us that you honestly thought he would want to make all of that public to solve his personal problem?
Mr Decter: I cannot read minds, so what Dr Donahue might or might not want to do is something that I think you would be best advised to ask him.
Mr Harnick: I would think anybody reading this letter from the outside would just think it was outrageous. To publicly open his books and let everyone see what he is doing? Do you honestly think that is a proper course of conduct?
Mr Decter: Well, I do not know any other course of conduct for someone who alleges that a government policy is forcing him to close his business. I think that, you know, the first request that would be made to any other person whose allegation was that his business was closing, whether because of an environmental law or because of some other action by government, I think that it would be a fair and reasonable request to ask him to provide some evidence of that. That same request, I think, would have to apply to physicians in the province.
Mr Harnick: You see, when I look at this letter, I think this letter just confirms exactly what I think your strategy was, and your strategy was to take this gentleman on head to head in an open, public forum and drag him through the mud to justify what you were trying to do. That is exactly what this letter says to me. You wanted "openly to determine the actual impact of the threshold payment adjustment." Why would you not want to do that with him privately, so that he understood? Why did it have to be openly and public?
Mr Decter: It did not have to be open and public -- that was a request I made of him -- but if you would turn the page you would read that the same letter also made the offer of Dr MacMillan visiting him. The two were not -- you know, he could have gone either way on this. Dr MacMillan did meet with other physicians to discuss the issue individually. That course of action was open. In fact, it is open to any physician at any time in this province to have a discussion with staff of OHIP about the impact of all of this, but to the best of my knowledge Dr Donahue had not taken the road of dealing with the issue on the basis of facts. He had taken the approach of dealing with the issue in the media and had in the course of it created some genuine concern on the part of the public about its access to service.
Mr Harnick: Mr Decter, let's admit that you were just aching to make all of this pertinent personal information public, were you not?
Mr Decter: I had no desire to see anything more in the public domain than needed to be in the public domain, but I was very determined that the people of Sudbury and the people of Ontario should understand the facts of the issue, and for that I make no apology.
Mr Harnick: Well, how much more is there than making public his practice pattern, including his billing practices, openly? What more is there that the man has personal to himself?
Mr Decter: I think that is probably a philosophical question.
Mr Harnick: Then to go on and say, "I am requesting your consent to release the above-noted information publicly, in order to ensure compliance with this legislation." What legislation is that, that if he did not open his books he would not be in compliance with legislation?
Mr Decter: I am afraid you are not reading the letter as the letter was written. I would indicate that if you wish to call the people who drafted the letter, they are qualified -- in the case of Gilbert Sharpe, legal counsel; in the case of Andrew Parr, our ministry's expert on freedom of information. The wording of that letter indicates that I clearly understood and the government clearly understood the restrictions that existed in the freedom of information act and the privacy act. So I think your suggestion that in any way that letter, read properly or read carefully, suggests that not making the information public would be a violation of any statute is completely erroneous.
Mr Harnick: How was he supposed to interpret it?
Mr Decter: Well, if we want to --
Mr Harnick: If you were in his shoes, would you not think this letter was somewhat threatening?
Mr Decter: No, I do not think any request to be public about the basis of one's criticism is threatening. I think that, very much as I said on the 5th in Sudbury, if you want to have a discussion of the facts, then it is important that the facts be on the table.
Mr Harnick: Mr Decter, we know that some time early in December, after Ms Martel was in Thunder Bay and had her conversation with Mrs Dodds, there was a leak of some confidential information reported in the Toronto Sun. Is that correct?
Mr Decter: I understand that the Toronto Sun reported information that suggested that there might have been confidential information leave the ministry. That is why I wrote to the privacy commissioner asking that the matter be investigated. I think it is fair to say that to this date I have not seen any information in the media that would convince me that there was an actual -- there was certainly information about events that left the ministry, but I think it is an open question, presumably one this committee will deal with, as to whether any confidential information about Dr Donahue's practice ever did leave the ministry.
Mr Harnick: Did you yourself, on behalf of the ministry, undertake internally to find out how any information might have leaked from the Ministry of Health to a newspaper?
Mr Decter: I was supplied with a chronology of events pertaining to the e-mail by Dr MacMillan, verbally on the 10th of December and in writing on the 11th. He subsequently amended it on the 11th to make it more thorough. But the decision at that time, a recommendation by myself to the minister which was accepted, was that the best way of investigating this was to have the privacy commissioner look at it for two reasons: (1) The privacy commissioner has some independence and has broad authority to investigate; (2) the privacy commissioner was still in the course of an investigation in our ministry and I felt that he was well positioned to add this issue to what he was already looking into.
Options were considered; for example, requesting some other group to investigate -- the OPP, for example -- but there did not seem to be a basis on which that would be a preferred option to the privacy commissioner. My concern was that no evidence be not there through accident or any other action, so I asked the freedom of information coordinator, Andrew Parr, to ensure that all of the relevant e-mails and so on were kept, were locked in place in the system, so they would be available for the privacy commissioner's investigation.
Mr Harnick: Did you yourself do any investigation to try to find out where the leak might have been?
Mr Decter: Well, I will reiterate that it --
Mr Harnick: Aside from what you have told me.
Mr Decter: It is not my view that we are dealing with a leak. I think we are dealing with the potential transmission of material. But I have to tell you that if the material in question had been in the hands of the Star or the Sun I would have expected them to print it. So the fact that it has not appeared in print would suggest to me that what left the ministry may have been gossip about the existence of the e-mail, but conceivably the e-mail itself or the information in it has not left the ministry. I felt that once I had placed the matter in the hands of the privacy commissioner, that was the appropriate action and I did not commence any independent investigation.
Mr Harnick: When Mr Scott, the member for St George-St David, stood in the Legislature one day during question period, he indicated to the Premier that a gentleman he had spoken to had some information about confidential information being released from the Ministry of Health or from government officials. He offered to give the Premier the phone number of that gentleman to find out where the information was coming from. Did you or anybody in your ministry ever investigate that issue and find out anything about what the member for St George-St David was talking about?
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Mr Decter: I did not carry out any investigation of that particular situation or circumstance and I cannot answer whether anyone else in the ministry, of their own volition, undertook an investigation.
Mr Harnick: Thank you.
Mr Eves: I just have a couple of short questions. This morning you told us -- it is on page 1055-2 in the Hansard -- about the central issue. I believe Ms Jackson asked you if Dr Donahue was not the central issue and you said, "No, the issue really shifted the minute cardiology, cardiovascular surgery came into it, which would have been the tail-end of November when Dr Abdulla" -- and you go on.
Is it not true that really the cardiologists in Sudbury had made this an issue as early as April 29, 1991, when Dr Abdulla prepared this press release for Sudbury Memorial Hospital, which was released in the media then? There were articles in the Sudbury Star of Friday, May 10, 1991, and an editorial in the Sudbury Star on Saturday, May 18, 1991, all of which deal with, as this editorial refers to it, the OHIP billing cap of $400,000 per physician. There are various references that the $400,000 fee threshold was unrealistic with respect to cardiologists in the Sudbury area. I am just trying to get clear in my mind. You seem to think this was not an issue with respect to cardiologists till the tail-end of November, yet there was all this information in the Sudbury media in April and May and through at least six months preceding November before Dr Donahue publicly ever came on the scene.
The Chair: Mr Eves, just prior to that question, if you have some documents, it might be helpful for the committee if we could make copies of those and distribute them as an exhibit and allow Mr Decter to see them in his response.
Mr Eves: Sure. I would be happy to do that.
Mr Decter: I think I can respond, anticipating that when I do see them they will be as described. I returned to my home in Montreal after finishing the negotiations with the Ontario Medical Association. My memory of that is some time in mid-April. I was not back in this province until I took up my duties as Deputy Minister of Health on August 6, so there would be a significant gap in there.
The epilation issue involving Dr Donahue was lively during the negotiations, and if the cardiology issue became very public in the April-May period, I am afraid I would have missed it. I certainly would not have had any access to the Sudbury media and, other than the Globe and Mail -- I guess it is safe to say the Globe and Mail is Ontario media, although I know it is our national newspaper. But I was not involved in the issue following the negotiation of the agreement.
There was a subsequent lively ratification round and once in a while someone would call to say how it was going, but my contract had terminated with the conclusion of the negotiations so I was not aware of cardiology as an issue until the third week in November when I directed or requested that Dr LeBlanc and Dr MacMillan go to Sudbury to meet with the cardiologists.
Mr Eves: The letter of November 19, 1991, exhibit 73, which you sent to Dr Donahue, did Dr LeBlanc review that letter? Did he have any role in reviewing its contents before it went out? I just ask that question because this morning you indicated that sometimes Dr LeBlanc held correspondence over and talked to you a day or a few days later.
Mr Decter: Usually in judicious letters directed to the OMA in response to some of their physicians. I believe in this instance that in addition to Gilbert Sharpe and Andrew Parr, Dr LeBlanc would certainly have reviewed this letter. He had responsibility for the overall OMA agreement and was certainly our lead hand on any issues to do with the threshold, so he would certainly have seen this letter in the normal course.
Mr Eves: The second-last sentence on the first page of that letter says, "I am requesting your consent to release the abovenoted information publicly, in order to ensure compliance with this legislation." I may have this all wrong but that suggests to me that, "We have this information and I am requesting your consent to release it publicly so that we comply with the legislation and we do not breach the legislation." Is that not what that sentence says?
Mr Decter: I think you have to read the whole paragraph. What the first sentence says is, we are requesting permission to look at the actual impact of the threshold payment, which would require us to look at his practice. The second sentence says, to date we have not done that, in compliance with the statutes. The third sentence says we are seeking his consent to do that and make public comment.
My understanding from staff was that for me to even say publicly, the threshold does not impact Dr Donahue -- which I am not saying now because I still do not have that information -- I would be in violation of the aforementioned statutes because I would be indicating something about his practice that I would not be entitled to indicate.
The best we were able to do in terms of indicating that we thought there was a misunderstanding was (a) to say that, and (b) to set out in paragraph 2 all of the existing exemptions we thought would likely have application or might have application. There had been a bulletin out -- I do not know if it is yet in evidence from the health insurance division -- setting out all the exemptions that applied. But what we were concerned about was obviously that Dr Donahue understand the existing exemptions.
Mr Eves: I guess you can read that paragraph any way you want. I am just telling you how I interpret it, especially knowing what Dr LeBlanc knew about Dr Donahue's billing practices, etc, and what Dr MacMillan knew, and especially seeing as how Dr MacMillan "almost fell out of his chair" when he saw what was in a particular memo or e-mail and how he insisted that Dr LeBlanc get this information back and get it returned to the ministry.
Dr LeBlanc reviewed this letter, as you have just said, and I take that last paragraph to read: "I am asking your permission to investigate and publicly discuss these issues. To date, the ministry has not released this information because we have to comply with these two acts, and I am requesting your consent to release the information we already have." I think it is pretty clear what the letter says. It says exactly what it says and that is what Dr LeBlanc knew and understood and that is what Dr MacMillan knew and understood. You may not have had knowledge of that information, to be fair, but that certainly is what that says to me, knowing what Dr LeBlanc and Dr MacMillan knew. Do you think that is an unfair summarization or reading of that paragraph?
Mr Decter: You may be reading more into it than had been intended. My intention had certainly been to be able to comment clearly on whether Dr Donahue was or was not affected by the threshold, something I could not do absent his permission. So his permission was sought, not obtained, and no such comment or release was made.
Mr Eves: Publicly. You said in response to one of Mr Harnick's questions that you felt that, to be fair, you had to read the second page of your letter, the last paragraph. I have read the last paragraph again since you asked Mr Harnick to do that and I do not read into it how it in any way, shape or form indicates that the session with Dr MacMillan would be a closed confidential session. In fact, the first sentence says, "I feel that without such disclosure, a full discussion of the issues will not be possible." That indicates to me, even in the second paragraph on the second page, which you have asked us to read, that you are still pressing for a full public disclosure of Dr Donahue's billing practices etc. You say, "I hope that you will agree with this request" -- again the request is for a public disclosure and discussion -- "and as well, agree to meet with Dr MacMillan, executive director, health insurance division, when he visits Sudbury in the near future."
To me, there is nothing in that paragraph, which you have asked me to read and I have just read out loud again, that indicates you are asking for a closed session and sharing this information in a closed private session. In fact, it goes on harping on the issue of public disclosure.
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Mr Decter: I am a little puzzled that the principle of public disclosure with someone's permission would be so offensive, but perhaps that is just my view.
Mr Eves: Thank you.
Mr Mills: Mr Decter, I have one or two questions I would like to pursue. First, I would like to go back to recall the testimony of Mrs Dodds. I do not have it but it is on the record. She went to great lengths to explain that Ms Martel was on a mission against doctors, almost like she was there in the discussion to declare war on doctors.
My first question is on the meeting you had with Ms Martel. Would it be fair for me to ask, was that meeting really one to advocate for doctors in the north as opposed to sort of carry on some distasteful discussion about them? What was the purpose of her being there?
Mr Decter: The purpose of the meeting was advocacy by Minister Martel on behalf of the cardiologists, the cardiovascular people in Sudbury. It was very forceful advocacy on behalf of those physicians. She was deeply concerned about any threat to that service. She was, as many members of the assembly and of the cabinet are, very forceful in her comments that she wanted to see action on this issue and that she would be taking it up with the minister and other colleagues. I would have to describe her attitude as hard advocacy on behalf of physicians.
I must say, I spent some time in the meeting trying to briefly explain that the threshold policy in our view was a reasonable policy, that the impacts were not what they were being portrayed, but that we were considering two options. One was a province-wide alternative payment plan for cardiology, cardiovascular surgery, which we had been considering since August. The other one was some amendment to the underserviced area program, and that was the particular option she seemed to be in favour of. She wanted that program extended. It was certainly not my experience in that meeting that she was critical of physicians, quite the opposite.
Mr Mills: She was very much on their side, to the extent that she was forceful, as you said.
Mr Decter: To the extent she was making me somewhat uncomfortable, but that is not an unfamiliar situation.
Mr Mills: Let's go on now, Mr Decter, about Mr Hollingsworth and the famous meeting on December 5 in Sudbury. I believe this morning you gave testimony to the effect that when Mr Hollingsworth got up to speak, you did not even know who he was and that you gestured to Dr MacMillan for some identification and he got a document and pointed out his name on that.
Mr Decter: My memory of it is that I did not know who Dr Hollingsgate, Hollingsworth -- I keep muddling his name; I apologize to him if he is watching -- no, I did not know who he was and I did say to Dr MacMillan, "Who's that speaking?" and he pointed at a name on a list. I do not recall whether it was the underserviced area list that was probably on my lap as part of the media kit or whether he had pointed at something else. I just remember, you know, at that moment learning that that was the doctor in question.
Mr Mills: To expand on that, obviously, if he pointed to the list, you and he must have been sitting together.
Mr Decter: Yes, we were sitting next to each other.
Mr Mills: Okay. During the trip to Sudbury, did Dr MacMillan ever indicate to you that he had in his possession a confidential file about Dr Hollingsworth?
Mr Decter: No, he did not.
Mr Mills: During the hearings, and it is on record, Dr Hollingsworth, in response to some questions that I asked him, said that Dr MacMillan had his confidential file on his lap. The file was marked "Confidential" and it had his name on it. Now, you were sitting close to the doctor. Did you ever see such a file on Dr MacMillan's lap marked with Dr Hollingsworth's name and marked "Confidential"?
Mr Decter: No, I did not and in fact, further, I have never seen a file of that description or a confidential file on any individual physician. No, let me correct that. I did recently see, as it was passing from Dr MacMillan's hands to Patricia Jackson's hands, a file pertaining to Dr Donahue at the time that we transmitted all of the documents as per the request of this committee. But up till then, I had never seen what might be described as a file on an individual physician.
Mr Mills: During the time that you sat next to Dr MacMillan, did he have anything on his lap at all?
Mr Decter: We both had the media kit, maybe because I was nervous about my speech and I was going over the notes, and my memory is Dr MacMillan had one of those as well.
Mr Mills: I just would like to really clarify that point. If there had been a file on Dr Hollingsworth, if it had his name on it, if it had been marked "Confidential," is there a possibility or not that you would have seen it or known about it?
Mr Decter: I do not recall Dr MacMillan opening a briefcase or anything like that during the meeting. You know, he carries one around, as we all do, so I presume he had one. But, no, my focus was very much on what was going on in the meeting. There were 20 or 30 speakers, all of them quite animated, and I knew at some point I was going to be called upon to speak so I was trying my best to keep track of what was being said and how I might respond to some of it.
Mr Mills: You have indicated, Mr Decter, that you saw perhaps the media agenda on Dr MacMillan's lap. Taking that a step further, I would ask -- and in fairness, it would be quite evident that had there been a document marked "Confidential," with Dr Hollingsworth's name, on Dr MacMillan's lap, you would have seen it.
Mr Decter: I think I would have seen it and remembered it. It was, I do not know, a three-and-a-half or four-hour meeting, so I cannot testify that -- you know, my attention was not on Dr MacMillan's lap; it was on the speeches being made. So it is conceivable that I might have missed something.
Mr Mills: It is reasonable; it is very reasonable. I have one final question, Mr Chair, and believe it or not, the terms of reference of this inquiry cover some other things besides the actions of Ms Martel. They cover an investigation into "the disclosure of confidential information" emanating from the ministry and also an investigation into "the dissemination of information obtained from the Ministry of Health."
My final question -- and I have heard you, this morning, talk about the e-mail and about freedom of information, and you made the statement that "we are steadily strengthening our position," I would imagine of containing and improving the handling of documentation. Since we as a committee are looking into those two other aspects, my final question is that we are trying to fine-tune the process, and I imagine that is ongoing with you, and is there anything that you can tell this committee that we can incorporate in the report that would indicate that there is an ongoing, shall I say, fine-tuning? That is not to say that the present system is not very good.
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Mr Decter: If I can be permitted to advocate for a particular piece of legislation somewhat outside, probably, my proper role as the deputy minister, the conference that I attended on December 6 was an effort to advance the cause of a particular piece of health care privacy legislation. We have, in addition to the Freedom of Information and Protection of Privacy Act, provisions relating to the confidentiality of health care, health information and personal information in a range of statutes.
I guess it goes back -- Gilbert might have to help me -- probably to the Krever commission, the sense that we need an omnibus statute to deal with this. This is, as Patricia Jackson mentioned this morning, the largest collection of personal information in North America, and I am not convinced -- although I think we have made good progress in a period of time implementing the FOI and privacy act requirements, I think particularly as we move to more electronic transmission of data and as we move towards more analysis in administering the system, we are going to need a statute that is focused on health care information and privacy.
We are at a stage of having the principles agreed to, I think, among most of the people involved with health in the province, and I would say that it strikes me it is not a piece of legislation that should not have support from all sectors of both the health care community and the House, which sometimes makes it a difficult piece of legislation to get forward on a timely basis.
But in terms of the big picture and in terms of other people who may at times run afoul of the mass of information we have, on one hand, and the inevitability of human error on the other, I would hope that we could get a better and more thorough statute in this regard and would urge the committee, to the extent a public official can urge elected officials to do anything, to consider the principles of that bill as something that you might support.
Mr Mills: I think that is a good idea. Thank you, Mr Decter. Thank you, Mr Chair, those are all the questions I have.
The Chair: Mr Kormos.
Mr Kormos: Mr Decter, if you do not mind, if we can talk about this November 19, 1991, letter again.
Mr Decter: If we talk about it too much longer, I am going to get the authors up here.
Mr Kormos: No.
Mr Decter: I just signed it.
Mr Kormos: I know you signed it. It was written for you, and that is one of the luxuries of having such an elevated status in the bureaucracy as you have: You get other people to write your letters for you. The reason I want --
Mr Decter: It may be a mixed blessing.
Mr Kormos: Yes, I know. The reason I want to talk to you about it is because we have got it here, all of us, but the folks there in Welland-Thorold are just listening -- and everywhere else in Ontario are listening to this -- and doing their best to figure out what is happening here, and there have been some attempts to present this letter in a peculiar light.
You may not know this, Mr Decter, but there are people out there who still believe that if you play certain Beatles albums backwards you will hear the message that Paul is dead. And I have got a feeling that somebody has been trying to play this letter backwards and looking for some subliminal content.
Here is the letter, November 19, 1991. It is sent to Dr Donahue and it refers to the fact that there have been suggestions -- indeed threats on his part -- to shut down his clinic, with the resultant impact being service to the north being put into jeopardy, and you refer to that in the letter. Right? It is not just those threats or those comments having been made to the ministry, but those comments have been made publicly by Dr Donahue. I trust that one of your concerns, as contrasted with -- if, for instance, he had only addressed the ministry with those comments, you would not have the concern about the issue of this being discussed publicly. Is that a fair understanding?
Mr Decter: Our fundamental concern was the public and its access to care and its perception of its access to care, which is sometimes very close to the reality of access. If you believe the service is not there, you are not likely to go and try and access it. So our concern fundamentally was set out in the first paragraph. The rest of it was, I think, a means to try and get some accurate information out publicly, but, you know -- yes.
Mr Kormos: Because you go on to say that there had been a number of things that had happened recently that would constitute exemptions to threshold, and we are talking about the second paragraph. You list the number of things that have happened out of the ministry that would provide exemptions from threshold. But your final sentence is this, is it not? You tell Dr Donahue that you are "unaware if any of the above measures" -- any of those enlisted exemptions -- will "make an impact" on his practice. You wrote that in your letter, did you not?
Mr Decter: Yes, as of the 19th. You know, we had a choice, I guess, to make. I could have and would have been well within my rights to commission the ministry to do a detailed review of Dr Donahue's practice, but, one, he had access to that through the practice profile program by picking up the telephone to Dr MacMillan anyway. So where would that have taken us in policy terms? It would not have, it seems to me, been very helpful. What we were trying to do, or what I was trying to do, was to get Dr Donahue essentially to focus on the exemptions already provided and what I would still think to be the reality, although I do not know, that certainly the major problem he was encountering was the deinsurance of epilation, not the threshold.
Mr Kormos: In the final paragraph on that first page -- so much time was occupied by some other people trying to talk about it -- you are requesting permission not just to publicly discuss the practice pattern, but you are also requesting permission to even investigate it. Your first sentence is, "I am writing to request your permission...." You are asking for Dr Donahue's permission. You are, in effect, telling him you are not going to do it unless he approves. Right?
Mr Decter: Yes. That is, you know, the principle. There are a couple of basic principles in the act, one of which is the permission of the person you are looking at. I spend most of my time seeking permission under FOI from various people to release various things, because often, absent permission, then you have got a denial, which one does not like, under a freedom of information statute.
Mr Kormos: But not just permission here to discuss it, but permission to even investigate it. You are not even going to investigate it without his permission.
Mr Decter: True.
Mr Kormos: Your purpose in wanting to investigate and discuss it publicly is so that you can clear the air with respect to the very public statements he had made about what, in his mind, would have forced the closure of his clinic.
Mr Decter: Yes, because at the same time I am reading quotes from the other dermatologist in Sudbury, who refers to herself as having an average solo dermatological practice with two staff and who is asking in the media in this same period -- if I remember the date, on December 3. This is Dr Nadine Hradsky -- I hope I am pronouncing the name properly -- asking questions like, "What are 14 people doing in a dermatology office?" This is, in essence, the other major dermatologist in that community.
Mr Kormos: Sorry? What?
Mr Decter: I do not know if this one is in evidence already. This is a transcript of -- it is another one of these --
Mr Kormos: Mm-hmm. It is Dr Hradsky, a dermatologist.
The Chair: If, Mr Decter, you are responding in answer to a question with some other media report that we might not have, I would ask if the clerk might be able to make a copy of so we could distribute that as an exhibit.
Mr Decter: Certainly.
Mr Kormos: Dr Hradsky has had some interesting things to say, so perhaps we will come back to that in a few minutes, as soon as Mr Arnott gets however many copies of that are necessary. Once again, in the letter, you write that under no circumstances will personal medical information be released.
Mr Decter: Yes.
Mr Kormos: Because that is not your motive in seeking the permission to investigate and publicly discuss it. It has nothing to do with personal medical information. It has to do with clearing the air about whether or not Dr Donahue was impacted in the way he claims he is impacted.
Mr Decter: Yes, that was our concern.
Mr Kormos: Not just for Dr Donahue's purpose, but for the public's purpose, for the benefit of the folks in Sudbury as well.
Mr Decter: It was public concern that was motivating what we were doing.
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Mr Kormos: Precisely, because this letter is prompted by that public concern, because indeed Dr Donahue could sit down and discuss his practice with you or any other number of people at any time he wished, could he not?
Mr Decter: Yes. In fact many, many hundreds of physicians do contact Dr MacMillan and his staff to discuss their practices and we have a fee we charge -- I know this because we were recently looking at raising it and decided not to -- of I think $50 to provide to physicians a profile of their practice. So it is a relatively frequent occurrence that physicians would want to have information about their practice and would contact the health insurance division to receive that information. That door is open and it is a well-known route. It is taken advantage of by physicians rather frequently.
Mr Kormos: Dr Donahue was entirely free to either agree with your proposition or to disagree.
Mr Decter: Yes.
Mr Kormos: There was nothing in the letter that spoke of consequences that might flow to Dr Donahue in either event, was there?
Mr Decter: No, there was no -- this was a request, pure and simple, and a request, you know, made directly. It did not in any way detract from Dr Donahue's ability to deal with Dr MacMillan on a one-on-one basis privately. There was no precondition that he had to agree to our request in order to continue. He had all of the same rights and privileges that any other physician in the province would enjoy still intact. It was purely and simply a request.
Mr Kormos: But, once again, Dr Donahue had taken a position that appeared to you, certainly, and to others in the ministry, to be a very public position.
Mr Decter: Yes. Dr Donahue was leading a very high profile campaign or battle against the threshold, on the basis that it was the threshold that was putting him out of business, and that was, on the surface of it, not our view.
Mr Kormos: He was not a medical wallflower, by any stretch of the imagination, was he?
Mr Decter: Well, I think it is fair to say that he was certainly a rather public advocate of the continuing insuring of epilation by OHIP, as one would glean from the clippings that were entered in evidence this morning.
Mr Kormos: And your observations of the press reports about his statements, including the threat to shut down his clinic -- I mean, that comment on his part, the prospect of him shutting down his clinic, does not appear to have been a comment that was lured out of him by a very skilful journalist who trapped him and tricked him into saying that. That was not your impression from reading the comments of Dr Donahue, was it?
Mr Decter: No, no. I think that Dr Donahue was taking a very direct approach to this issue and taking the approach through every means available, including the media.
Mr Kormos: And including using, entirely appropriately, his MPP and other area MPPs to advance his particular arguments with the ministry.
Mr Decter: Yes, and if one goes back, judging from the clippings, he took credit for a significant letter-writing campaign to Minister Caplan, so that would go back some time.
Mr Kormos: Now --
The Chair: Mr Kormos, just a minute. Members of the committee, the media report referred to by Mr Decter has now been distributed and marked as exhibit 76. Mr Kormos.
Mr Kormos: Thank you. This is Nadine Hradsky. She is a dermatologist too?
Mr Decter: My only knowledge of Dr Hradsky was from this media report on December 3 and, yes, she seems to be a dermatologist who spends part of her time in Toronto and part of her time in downtown Sudbury.
Mr Kormos: Now, this is a December 3, December 3, December 3, 1991, interview. That is what the transcript appears to indicate, huh? She is referring to a Sudbury Star article she had read about the other dermatologist in Sudbury, the one who is closing his office.
Mr Decter: Yes, she seems to quote that article. Now, to be fair, I do not think I have seen that Sudbury Star article, so how accurate her quoting of it is I do not know.
Mr Kormos: Quite right, but her comments indicate she is relying on a Sudbury Star article of the Friday prior and speaking of the other dermatologist. She does not speak of that doctor by name, but she is speaking of the dermatologist, you know, the one who is closing down his office. Right?
Mr Decter: Yes, I think it was relatively clear whom she was referring to.
Mr Kormos: She is quoting the Sudbury Star article, which according to what she says would indicate that this doctor requires billings of $800,000 to $1 million a year and a staff of 14 to run his office.
Ms Jackson: That is part of exhibit 36, if that helps you.
Mr Kormos: Thank you.
Mr Decter: Yes, she is certainly questioning in this interview, literally, what are 14 people doing in a dermatology office, comparing it to her own practice with two staff.
Mr Kormos: She does not go so far as to say it is criminal, but if one could hear eyebrows being raised over the radio, one would expect to hear eyebrows being raised as she says this, would one not?
Mr Decter: I am not good on eyebrows.
Mr Kormos: Least of all on the radio.
Mr Decter: Least of all on the radio. But I think it is fair to say there was a good deal of questioning going on of large volumes of staff based on delegated epilation. That was viewed in many quarters as a real stretching of what had been put in the OHIP schedule originally.
Mr Kormos: Because Dr Hradsky says, "I have to ask myself...what are 14 people doing in a dermatology office?" She is talking about 14 staff and she questions, "What are 14 staff doing in a dermatology office?"
Mr Decter: I think it is fair to say that the view I would certainly form is that many of them would be performing epilation.
Mr Kormos: You mean electrolysis?
Mr Decter: Electrolysis, yes.
Mr Kormos: This epilation stuff is all new to me. Where I come from we call it electrolysis.
Mr Decter: Okay. Well, the schedule referred to it formally as epilation facial hair, but I think it is known more commonly as electrolysis.
Mr Kormos: She goes on, because she appears to be referring to the article again, she goes on to refer to this same doctor, the dermatologist, the one who is going to shut down his office, the one who needs $800,000 to $1 million a year, the one who has 14 staff in his office. She refers to that same Sudbury Star article, or appears to. It says, "Because of his closing of the office, 82-year-old patients with skin cancer will have to be bused to Toronto for treatment." And she says, "Why?" Because, Dr Hradsky says, "We have a brand-new Ontario cancer treatment centre right here," -- in Sudbury, huh -- "on 41 Ramsey Lake Road staffed by highly skilled oncologists with the latest state-of-the-art equipment."
Once again, I appreciate radio being merely an audio medium. She appears to be raising -- again, you are not good at raising eyebrows. Maybe I am better at that than you are, but she appears to be questioning the validity of that statement, huh?
Mr Decter: She goes on actually to give some other criticisms of the threshold and actually points the direction, which I think is the direction we have actually ended up taking in terms of addressing the problem. She suggests basing variable capping on proven need, and that is the essence of involving the royal college formula in terms of the amendment to the underserviced area program to include retention of specialists.
I guess it is fair to say she was not keen on the threshold either, although she indicated clearly -- and this puzzled me, because you have to understand this was still rather early in my tenure as deputy minister. She says that her OHIP billings were a matter of public record and subsequently learned that, no, OHIP billings are not a matter of public record, although billings by all other professionals to the government are a matter of public record. There is a different regime that exists for physicians. So I guess she was overstating the case, but she volunteers there that her billings would not exceed the current cap.
I have to say it just reinforced for me that what we were getting was a lot of blame being pointed at the threshold, whereas in the particular case of Dr Donahue, the fundamental policy change that had caused him to change his practice was the deinsurance of electrolysis.
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Mr Kormos: Yes, and this Dr Hradsky is not just somebody who happened to slip into the radio studio up in Sudbury to be interviewed on Morning North off the street out of a coffee shop. I mean, she is -- what? -- an associate professor at the University of Toronto -- an assistant professor, I think. Is that not how she is described? She is an assistant professor at the University of Toronto; she has been a consultant to the Princess Margaret Hospital skin cancer clinic for the last 15 years; she is on staff at the Wellesley Hospital, and she has a full-time, busy practice in downtown Toronto as well as an equally busy one in downtown Sudbury.
She has got a staff of two? A staff of two -- this highly qualified, very professional, hardworking doctor with her practice of dermatology, a dermatologist, two practices, one in Toronto, one in Sudbury, an assistant professor, consultant to Princess Margaret, on staff at Wellesley. She has got a staff of two and she indicates that her OHIP billings over the years have not exceeded the current cap. What was she talking about when she was talking about the current cap?
Mr Decter: I presume she was indicating that her billing levels had never exceeded the $400,000 level. That was the popular view of where the threshold payment adjustment would take hold, although I think it is fair to say, as the material we distributed at the Sudbury meeting indicated, the threshold actually takes hold a good deal higher than that for those specialists because of the technical fee exemptions.
Mr Kormos: And there is no suggestion that Dr Hradsky ever saw Dr Donahue's OHIP billing profile, is there?
Mr Decter: No, I do not believe that suggestion has been made.
Mr Kormos: Yet she clearly has some concern about the fact that Dr Donahue needs 14 staff people and billings of as much as $1 million a year, does she not?
Mr Decter: That seems to be what the transcript indicates.
Mr Kormos: That is an interesting observation by Dr Hradsky, considering she has never seen Dr Donahue's OHIP profile. I am surprised she did not refer to it as criminal. I have no other questions.
The Chair: Thank you very much, Mr Kormos. Mr Hope.
Mr Elston: Excuse me. I would ask on a point of order that Mr Kormos withdraw his last remark, which is very, very vilifying. I find that he is doing that sort of stuff a great deal. I think he should withdraw the last remark.
The Chair: Mr Kormos?
Mr Kormos: No, thank you.
The Chair: I understand the point of order --
Mr Elston: No, that is fine.
The Chair: You have asked that Mr Kormos would --
Mr Elston: If that is the way he wants to carry out his obligations to the public, then let him do it that way. I am content that he rests on his manner.
The Chair: The request has been made if Mr Kormos would withdraw. He has refused, and having said that, Mr Hope.
Mr Hope: First of all, I do not know what was wrong with the comment, but, Mr Decter, just a couple of questions. I was listening to how they were trying to interpret this letter, so I have got to draw some quick questions that I need specific answers to. I guess my first question would be, at any time was your purpose to discredit Dr Donahue?
Mr Decter: No, one would have to be quite an unusual Deputy Minister of Health to want to discredit any physician. We rely on the physicians of this province to deliver care. They are one of our important constituent and client groups. I spent five months of my life trying to reconstruct, successfully, I am glad to say, a relationship, an organized relationship, between the profession and the government under the framework agreements. That was a very difficult task, and it is just not in my view of the world to try and discredit a physician. I think that is not on, from my point of view.
Mr Hope: Good. I just hear some gas bubbles going across from the floor there. I just wanted to make these clear, because as I see how they try to read your letters, I want to make sure when they read Hansard it is very clear on the answers you are giving.
Did you at any time give Ms Martel, or talk to or communicate in any way confidential information to her?
Mr Decter: No, I did not.
Mr Hope: I guess the final question would be, are you covering up for your minister or any other minister of the crown for the province of Ontario?
Interjections.
Mr Decter: No. I am here under oath answering questions, so I do not --
The Chair: Order, please. Mr Decter, there were some interruptions and I wanted to make certain you had an opportunity to respond.
Mr Hope: If the opposition --
Mr Decter: You know, my response to that question is, I am here under oath answering any question that is asked of me as honestly and directly as I can. I am not here to defend, protect or do anything other than explain to the best of my ability what the facts were and to the best of my memory what happened. So my answer would be no to your question.
Mr Hope: Why I put that, so it is nice and clear in the records of Hansard, is because as I try to listen between the lines instead of read between the lines of what the opposition are trying to say, I want to make sure it is crystal-clear in the minutes. Thank you very much.
The Chair: Mr Christopherson.
Mr Christopherson: Thank you, Mr Chair. We are completed.
The Chair: Thank you. Mr Conway.
Mr Conway: Thank you very much, Mr Chairman, and Mr Decter, very pleased to meet you, and I must say that I have listened with much attention to your testimony. I must say at the outset I do not share some of the views of my friend from Willowdale.
I will start with the letter, just the letter that has occupied -- that is exhibit 73, the November 19 letter to Dr Donahue. I want to say right up front I do not share the views of some other people with respect to what you might read into this, but I want you to help me in a slightly different connection. The letter, exhibit 73, signed by you and sent to Dr Donahue, is dated November 19. Would I be right in saying -- and I think you may have in fact touched on this this morning -- that that letter would have been drafted with perhaps the involvement and participation of Dr LeBlanc and perhaps Dr MacMillan?
Mr Decter: No. No, my testimony this morning was that the letter was drafted for me by Gilbert Sharpe, the director of legal services for the ministry, and by Andrew Parr, our freedom of information coordinator. I answered subsequently a question as to whether it was likely that Dr LeBlanc would have seen the letter that yes, in fact he saw most things, or all things in this area. Dr MacMillan -- I am going on memory. I do not remember what exhibit number it is, so maybe someone can help me so I can refer to it, but my memory of the letter is it was copied to both Dr Adam Linton, who was then the head of the OMA, and Dr MacMillan.
Mr Conway: I appreciate that. I guess what I wanted to sort of tie down here was whether or not it is reasonable to assume that before this letter was given to you for your final signature, Dr LeBlanc would have had an opportunity to look at it?
Mr Decter: I think that is likely.
Mr Conway: That is a reasonable assumption.
Mr Decter: Yes.
Mr Conway: I am not here to talk about your motivation, I have to believe what you tell me, but I just want you to understand what I am now being asked to believe, that on the 19th of November, this letter is being prepared for your signature and is sent over the signature of the Deputy Minister of Health, and we know that at least one of the people involved in the letter, to the extent of perhaps having had a chance to look at it, Dr LeBlanc, which would seem to be a normal part of his routine business, three or four days before this letter was involved with Dr MacMillan in a very serious issue and concern around the potential of a leak of highly confidential information arising out of the famous Teatero memorandum, exhibit 44. I have to -- I am being asked to believe that those people allowed you to send this letter and did not open their mouths to you as deputy -- that three or four days before in very high offices in the Ministry of Health, the director general of OHIP and the head of the negotiations secretariat were having very serious concerns about a memo that ought never to have been sent, and they did not tell you that?
Mr Decter: Well, you bind together a number of things in your question. I do not know if you want me to deal with them individually or collectively.
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Mr Conway: No, I want you to just deal with the general impression because, you see, I am not going to engage in questioning your motives. I believe you to be -- and everything I know about you tells me that you are -- an extremely able, experienced individual. I also know that you are not just a Deputy Minister of Health, not just a consultant, and I gather by all respects an extremely good consultant, but you are a former cabinet secretary. You are someone who, for five years of his professional life, worked in very close relationship to the leader of a government.
I know something about the inner workings of the Manitoba government. I had a friend who once worked there in that office. He told me quite happily that it was a very hands-on operation. I could believe that it would be and that would make me feel good, but I know that Michael Decter is not just a Deputy Minister of Health. I know that this very able man has come to Ontario after a long and distinguished service in the Manitoba government, fully five years of which was as the top bureaucrat in the province.
I am now sitting here -- I am listening to all this discussion about what this letter might have meant. I do not really care what the letter might have meant. I am just looking at what I know. And what I know or what I am assuming -- and I want you to comment on this -- is that on November 15 or November 14 in high office at the Ontario Ministry of Health, a department that months before just saw a very able minister lose her job because of an inadvertent release of confidential medical information -- Eugene LeBlanc and Dr MacMillan are sitting there looking at exhibit 44 and saying -- my words, not theirs -- "My God, where did this come from? How did it get out? Get it back. It should not be circulating." And five days later you are signing a letter that touches very directly on that file, and no one -- Dr LeBlanc, most especially, does not open his mouth to tell you, "Deputy, you should know something about what happened in this building about 48 or 72 or 96 hours ago." That is what I am being asked to believe and I suppose I will have to believe it.
Mr Wood: Sean, the leadership campaign is over.
The Chair: Order please, Mr Wood.
Mr Wood: Well, I just told him the leadership campaign is over.
The Chair: Order.
Mr Decter: Well, let me try and deal with it, and I thank you for your rather generous comments about my career to date.
Mr Conway: I mean them. I happen to believe them.
Mr Decter: I hope the kids are watching. Anyway, it is hard to say. Glancing at this letter -- the one thing I do as a matter of course -- letters are dated once they are signed. So it is conceivable that this letter was prepared for me some time before the 19th. You would know the practice, and this government, at least in the Health ministry -- its letters, because there are sometimes delays, one does not want to send out a letter that has an old date on it. So it is at least conceivable that this letter was well on the way the previous week.
The letter is accurate. I was not aware of those incidences or that information coming up from Kingston -- the exhibits you make reference to -- until a good deal of time later. I guess a lot of this whole discussion comes to how one would characterize the movement of that information from Kingston to officials in the Hepburn Block. They were certainly all entitled to have that information, as was I or as the minister would have been had she wanted it. There is lots of ground for that information to be acceptably moved. It was retrieved, I guess, in what I have come to understand of the incident, by Dr MacMillan because it was excessive to the purpose. That is, there was rather more information there than people had need of to do their jobs, and our basic principle is need to know.
I guess there are two ways of looking at it, given that the incident that caused Minister Gigantes' resignation involved information coming directly all the way up to the minister's office to all of her staff on a rather routine basis, albeit with a warning attached.
My judgement would be -- and obviously we would not all be here if we had gotten the thing perfectly right -- that the movement of some information that was, if you like, legal but excessive to the purpose, out of Kingston to Hepburn and that it was retrieved within a day, was actually testimony to some real improvement in the sensitivity of the procedures. I think it is fair to say that if Marsha Barnes had not gone off on her sudden maternity leave; if she had not required hospitalization, and if someone else had not been rather new to their position, the information would probably not in the normal course have left Kingston.
Mr Conway: My point, Dr Decter --
Mr Decter: It was retrieved rather rapidly and I think that it would be an injustice to Dr MacMillan and Dr LeBlanc to suggest that somehow they let me send out a letter that I should not have sent. I think if I had seen exhibit 44 I might not have been inclined to send this letter exactly as worded. But I would make no criticism of them for their behaviour in this incident. I think they acted to retrieve information rather promptly.
Mr Conway: My point in raising the question is to believe what you are telling me, and I will obviously believe it. I then have to, on the basis of my experience and the evidence tendered by Drs MacMillan and LeBlanc, just sit and fantasize how it is that they could allow you to sign this letter on November 19 that relates to the Donahue file where just days before -- now it may have been six days. The letter may have in fact gone out as you say a bit later. But it is incredible for me -- and I am angry about this because I am here and I have been told to behave myself and deal only with what is in front of me. So I want to do that and I see a letter like this and I am not going to engage in questions about whether or not you wanted to go and beat up on some doctor. I do not believe you did, as a matter of fact, but I am just looking at this and saying, LeBlanc at least would have seen that, and how the hell he could have -- and I know and respect Mr LeBlanc. I know just how voluble and how knowledgeable he is and that he could have let you sign that letter four days after, according to the testimony before this committee, MacMillan put on the performance he did in his office about exhibit 44, I have to tell you, reduces me to incredulity.
I want to move ahead to the December 9 answer in the Legislature. I have got a lot of sympathy for Minister Lankin who came here the other day and told us what she told us. She gets up, in good faith I believe, and gives Mr Harris the answer contained in the Hansard of December 9, 1991, and I do not know what the exhibit number is, but I will read the relevant quote:
"With respect" -- she says to Mr Harris, "to the issue the member raised in the second question, I have very specifically asked and received assurances from my deputy minister, who has heard directly from the director of OHIP, that no confidential information with respect to doctors' files and their billings and their incomes has been shared with anyone outside the OHIP department which has proper access to that information."
Very clear. I have got to tell you, I was there and, like 100 other members, I heard what she said, believed what she said and I think I understood what she meant to say. And by her own testimony the other day, she was floored within a few hours of giving that assurance because in fact she had not been told some things that very senior people in the ministry knew a month before.
Now I want you to take me through your involvement in the preparation of that response that quite frankly compromised Ms Lankin in a way I think that we talked about here the other day.
Mr Decter: I will review my previous comments on this. It is the case that I do not have an enormously clear recollection of the events of December 9. The issue was raised in the morning. Let me start by saying -- and this is something that Gordon Osbaldeston, who has served for many years federally in many posts, but as cabinet secretary once said, and it stuck with me: The four words that a deputy minister lives in dread of hearing from his minister, or from her minister, are the words, "Why wasn't I told?" Those are the most difficult words for any deputy minister to hear.
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With that -- so I take this on very seriously, and the minister and I have had occasion to discuss this matter since her testimony here. It was not clear to me until the morning of December 9 that we were dealing with one incident as between Dr MacMillan's encounter with Mrs Dodds at the conference on Friday and the call that I had had from Melody Morrison on the Saturday. It was not until the morning of December 9 that it became clear what Minister Martel had said and under what circumstances and the dilemma that posed, or at least the question that posed, about our handling of information.
I know that it was agreed in the morning meeting that we would seek, you know, to have assurances from everyone as to the disposition of any information, relevant information. I think it is fair to say that the question posed was: Has anyone in the ministry communicated any information to Minister Martel? That was, when you think about it, the central question. There was not at that point an impression in my mind that we were dealing with anything other than that. The question was very directly: On what basis had she made her comment? And the assurances that were sought were consistent with that.
I do not have a recollection of whether I spoke to Dr MacMillan directly; whether Tiina Jarvalt, my executive assistant, as was usually the case, would have followed up on that. I simply do not have a memory of that. I have tried to sort of come to one. The process that would have taken place, though, was the priority briefing process. A note would have been prepared, based on everyone's recollections, or everyone's information at the time, and so --
Mr Conway: Well, I know the process and you can spare me the -- but, you see, my difficulty again with that is that -- you are a former cabinet secretary. I mean, boy, I will tell you, my experience with cabinet secretaries is that they are involved people who know happily and thankfully and rightfully an awful lot of what governments and first ministers need to know. You have this morning told me -- and I was very impressed, because you strike me as this kind of a person. You remember the Martel encounter, among other things, because you thought the protocol was a little out of whack. You have a very clear memory of that. You remember that when you did meet Ms Martel she had paper, green paper, on which there were volumes of data presumably prepared for her, given to her, in a meeting. You have very particular recall about the colour of paper, about protocol.
And we get to this, December 9 -- and you also said this morning, and I think quite believably so, you went to the ministry in early August with a heightened appreciation for the whole question of confidentiality of medical information, and rightly so, because you had just seen a minister, quite an able one, lose her job because of an inadvertent mistake.
Now we get to this meeting. We get to December 9, on a subject that I would have thought would have been enormously sensitive because of the Gigantes matter, and very much an issue because of what you told us in the testimony, that since November 7 you knew there was something heating up in Sudbury around the whole question of medical services. Then we get this answer, and the minister cites you and -- let me ask you this: Tell me why I should not believe on the basis of the minister's answer -- "I have specifically asked and received assurances from my deputy minister" -- why should I not believe that you were either misled or lied to in the preparation of that extremely important answer to a minister and to a deputy who I have to believe by December 9 knew only too well the gravity of the issue? Why should I not believe that at the very least someone senior misled you or lied to you?
Mr Decter: I can only give the answer that, given my rather good working relationship with the minister, if she gave that answer, and that she did give that answer in the House is evident from Hansard, she must have had from me exactly that assurance. Whether I erred in giving her a more fulsome assurance than I had received, I cannot speak to that, but I take full responsibility when my minister goes into the House that she has been given the benefit of our most accurate appraisal of the situation, and therefore if there is fault here, I think it must sit with me.
I obviously did not achieve a full understanding of the situation until the next day when it became clear that there was more to the story, or more to the internal ministry story. But I have yet to have any evidence that confidential information left the ministry. I know that is a more general point. I cannot speak with great accuracy to the events of the 9th, other than that I stand by my advice to my minister, and if the advice was that we had full assurances, then it is my belief we had had full assurances.
Mr Conway: I would like to move on to the next day, and I want to take up again the general issue my friend the member for Durham East, Mr Mills, I think rightly focused some attention on about this whole question of the confidentiality of medical information. You responded by suggesting some amendments to legislation, or something to that effect, as I recall one of your answers. You know, 10 years ago we spent $1.5 million with the Krever inquiry. One of the reasons I am really interested in this is that we have two cases in the last year that bring the Krever royal commission into a sharp, practical focus.
I want to move on to Ms Dawson's call. I do not know what Ms Dawson of the Toronto Sun knows, but I know the following: I have seen fully exhibit 44; I know what is in that Teatero memorandum; I know what Dr MacMillan has said. Dr MacMillan has said that when Ms Dawson phoned him and told him whatever she told him, "I nearly fell off my chair." In subsequent cross-examination he certainly said or left the very clear impression that he nearly fell off his chair because his worst fear of November 14 was in fact confirmed, that someone out there who had no entitlement to that information got a piece of it or got all of it. You seemed to, in earlier evidence today, leave the impression that Ms Dawson may simply have had something quite otherwise. Again, help me. How am I misreading what I have in front of me?
Mr Decter: Let me see if I can help you. I sought and obtained legal advice on December 11 because I was concerned if information had left the ministry as of the 11th, which was when we sort of were fully seized of that; well, the evening of the 10th, but really the 11th by the time we assembled. I asked the question as to whether there was any legal impediment to either of the newspapers that seemed to have become involved, the Sun or the Star, publishing the information. That is, would they be in violation of freedom of information if they published exhibit 44 in its entirety on the front page of their paper? I was told that no, the way FOI worked the violation would rest with whoever moved the information outside the ministry if in fact it had moved outside the ministry.
I waited with interest, having referred the matter to the privacy commissioner, to see if in fact the detail of exhibit 44 would turn up in the paper. Now to the best of my knowledge, although there has been lots of discussion in the press about events in the ministry, that information has not turned up in the press. Hence my comment that I do not have hard evidence, although I am not denying given everything, that there is a substantial possibility that information left the ministry that should not have. There is also the possibility that what left the ministry was gossip and discussion about Dr MacMillan, in a rather animated way, retrieving the information on whatever the day was, the 13th or the 14th of November. I guess I am not trying to take a position on whether it did or did not leave. Given what I have experienced over the years, if something leaves government that should not, you usually read about it the next morning in the paper.
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Mr Conway: You see, again for me the issues have to do with a lot of things and credibility is clearly one of them. So let's go back then to the previous weekend.
Here we have got Michael Decter, who has been in public life, high levels of public administration for the better part of 20 years, and he tells myself and this committee this morning that the toughest public meeting of his long and distinguished public life was the night of December 5, 1991, at Sudbury. A very tough meeting, and I can understand that. I was struck by what you said. I forget the exact words. I wrote it down here someplace. "The December 5th meeting in Sudbury was easily the most difficult meeting of my life." Fair ball. That is December 5th.
You get to Toronto the next morning, you make your speech, you and Mr Timbrell leave and by Saturday afternoon, and very helpful testimony, one of the ablest New Democrats I have ever met, Melody Morrison, phones you and says: "Michael, I have some news. In Thunder Bay two nights ago Minister Martel said such and such."
One of my specific questions, by the way, is, did Ms Morrison indicate in that Saturday afternoon telephone conversation that the Martel difficulty involved in some way the potential release of sensitive or confidential medical information?
Mr Decter: No. My memory is that her comments were to the effect that Minister Martel had gotten into an argument at what I think she described as a cocktail party and she had said some rather forceful things -- and this is where I kind of missed the boat -- about a Thunder Bay dermatologist. At that point, I must say, I kind of relaxed because to the best of my knowledge it was not an issue.
Mr Conway: I want to talk a little bit about your relaxation there, Michael Decter, because Michael Decter, former cabinet secretary, former chief negotiator for the framework agreement, boy, would he know a lot about the politics of that agreement. I cannot imagine that you did not, in the very successful working out of that, see all of the minefields and anticipate and advise the government as to how to prepare for those. But, boy, you came to that job as deputy with a very good understanding of the politics of that framework agreement. I suspect you might even have a pretty good idea, generally speaking a hell of a lot better idea than most of us, about the distribution of specialties. I cannot believe that you would have been involved in that framework negotiation and not have some general idea of the distribution of medical specialties around the province, but perhaps I am wrong in believing that.
Michael Decter, former cabinet secretary, negotiator of the framework agreement, you spent five or six months working on that; you would know it intimately. You go to Sudbury for the toughest meeting of your life and two days later the Premier's office calls the former cabinet secretary to say there was a bit of a contretemps involving a minister in Thunder Bay, involving a medical specialist, and with the Gigantes thing in the back of your mind and with the knowledge that tomorrow there is a cabinet meeting, you do not think it is worthwhile to contact the minister, and you do not for a period of some 36 hours at your regularly scheduled Monday meeting of December 9th?
Mr Decter: Well --
Mr Conway: And then the next day, Minister Lankin and Minister Martel are at this meeting, side by each, and one minister keeps going out and making phone calls. We will have this confirmed later, but we are led to believe that Ms Martel was leaving the room, and we know that she was making calls to people up north that, "I did not really mean what I said, and I apologize for it," and she did not tell Minister Lankin.
You see, my difficulty is, Michael Decter, former cabinet secretary, very able person, that the image I now have of you and Ms Lankin is, to believe your story, I have to accept that you are almost like one of those referees in a professional wrestling match. While the bad guy is gouging the good guy's eyeball out in front of everyone at Maple Leaf Gardens, you are distracted off into the abyss by something else. My difficulty is that I know you and Ms Lankin to be far more able than that. And so, wanting to be believe your story, what am I to make of the fact, for example, that you did not call Ms Lankin for a 36-hour period about something that touched on the substance of the Gigantes affair, that very much touched on the issues around the department and you knew to be a matter of public issue involving a minister of the government?
Mr Decter: Well, let me first say, because you have I think touched on my minister, it seems to me that her view of this issue is rather clear. She has the view that I should have called her on the Saturday. I can accept the basis of her view, although it was not then the case and it is not now the case that I thought anything substantive was going to change on this issue between the Saturday afternoon and the Monday morning. There was certainly no action that was going to undo what had been done, whatever Minister Martel had said and about whom.
At that point I did not have a clear idea. I was not aware on the Saturday, from Melody Morrison, that this pertained to Dr Donahue. In fact my comment, as I recall it, to Melody Morrison was that rather than being at a cocktail party in Thunder Bay she should have been with me in Sudbury because it was a fairly stormy, tough meeting. I had just received -- and it is not in evidence; I will try and stick it into evidence now -- before Melody Morrison's call, a fax on my home fax from Eugene LeBlanc, who was still in Sudbury, of the lead editorial in the Sudbury Star, which was a very positive editorial. I mean, I would leave aside that it was gentle with me personally, but it essentially took the view that the doctors had not made their case, that in essence there was a lot of noise. But if anybody wants this in evidence, I have copies.
So I was feeling that the purpose for which I went to Sudbury and went through a very difficult meeting had been achieved. At least the Sudbury Star had decided to deal with the issue on the basis of fact rather than on the basis of advocacy, and that is all that I had hoped to achieve. So I was for the first time since Thursday feeling tired both because I had been up all Thursday night and Eugene had called me pretty early Saturday morning. We had been back and forth all day. I was not immediately seized of the importance of the Morrison call. I think if she had said, "a Sudbury dermatologist" or if she had said, "Dr Donahue," that the significance of it, which did not strike me till Monday morning, would have struck me, you know.
But I think it is fair to say that these things always look much, much more significant in hindsight. It is hard to pick, out of the 20 or 30 live issues that we have on the go at the ministry at any one point, which one is going to turn into the really difficult issue. But I take responsibility for not informing the minister until the Monday morning of this. As I say, her view was that I should have talked to her on the Saturday, and my view was that I had no basis, on what I knew on the Saturday, for talking to her.
Mr Elston: Pardon me, Mr Chairman.
The Chair: Mr Elston?
Mr Elston: I think that anybody who is interested in Mr Decter's skill will have followed the manner in which he has introduced, on three separate occasions, substantial material which he could speak to, including the evidence that he gave on behalf of Dr Hradsky, the fact that he just is about to give us a fax of an editorial and otherwise. It shows the degree of preparation and the skill with which you manage your department, and yet I, like Mr Conway, am taken by your lapse of memory around particularly significant days.
The 9th of December must have been a bit of a sinking day for the Deputy Minister of Health. You had not yet spoken to -- at least as by other testimony, you had not spoken to your minister as of around 11 o'clock in the morning, we are told by Sue Colley, and she had no recollection at all of any problem occurring until she had received a telephone call from the same Melody Morrison from the Premier's office saying, "Does your minister know?" And if I had been on the other end of the phone listening to Sue Colley say no I would have said, "Why not? I talked to Michael on Saturday." But we did not get that part of it; we have not got what Ms Morrison said.
Can you explain to us, then, why you are so without recollection about the 9th of December, when it was then revealed to your minister that not only had you not told her on Saturday about this problem, but you did not even tell her at 9 o'clock in the morning, at the first possible opportunity to get in touch with her about this issue on the 9th of December, or why you did not talk to her at 9:30 or at 10 or at 11? Indeed, it was closer to 11:30, I think, that we have discovered. Why is it that you do not have much recollection of the 9th of December?
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Mr Decter: I cannot -- I do have specific recollection of being in the middle of telling Minister Lankin about the phone call and debriefing her on the Sudbury meeting and Eugene's progress and Dr LeBlanc's progress in finding some policy ways to address the situation dealing with the cardiovascular people.
It was during that briefing that, as my memory goes, Sue Colley left the room, took the call from Melody Morrison and came back. But I did not register the significance of Minister Martel's comments because they seemed so remote from the issue we were dealing with, which was a Sudbury issue and which, you know -- Thunder Bay, we had had, you know, pretty good monitoring of the situation. I was aware of some other kind of hot spots on the threshold in Windsor and one in Peterborough and we were, I think, doing as thorough a job as we could. We did not have an issue in Thunder Bay of any sort. So I was, if anything, sort of puzzled by it. But we all get into arguments from time to time and it did not seem to me to be, you know, out of the question that a minister would get in an argument with someone, you know, at a cocktail party, and there was not much kind of consequence for the ministry.
Mr Elston: Well, in fairness, we will pass over your inability to recollect on that basis. But you did prepare an answer for your minister to deliver in the House that said there was no release of information, and yet you still do not seem to have much recollection of whether or not your investigation into one of the areas in which you said you were most concerned when you assumed the role of deputy minister on the 6th of August, 1991, was brought into question. Did you not register that having to ask about the release of confidential information was a significant step to be taken?
Mr Decter: Yes, well, there was no question --
Mr Elston: Why do you not recall whether or not you spoke to Dr MacMillan?
Mr Decter: I can only tell you what I recall, and I have tried to do that faithfully. I do not recall the specifics of a conversation with Dr MacMillan, although all of the evidence suggests that either myself or someone very close to me who would normally make a call of that sort must have made that call. I mean, you know, that is -- no, I have not been through, I have not -- although you refer to extensive preparation, I have not read the other testimony before this committee, so I am not aware of what --
Mr Elston: I did not ask you to do that, but you did give us a letter from October 1990. You gave us letters from February 1991. You gave us the transmission of that material from the Sudbury Star. You gave us the MediaReach material, which we had not had here before. I mean, you are prepared. You know what you are doing.
Mr Decter: Well, to be fair, Mr Elston -- and, you know, counsel would confirm this -- I have been trying through the course of the last couple of weeks to explain why I had not been more interested in Dr Donahue in November. It was not until this weekend when I found the boxes of material that I had had during the negotiations. As you can understand, I moved from Montreal and have not yet fully unpacked. I found the file that contained the February and October -- the old material, which did date back to the negotiations. This was not information in the ministry.
Mr Elston: It is interesting to me, Mr Decter, that when you heard that Ms Martel was in some kind of an argument, and it may have revolved, in your recollection of Ms Morrison's conversation -- a dermatologist from Thunder Bay. It would seem to me that any specialist in northern Ontario would have raised the flag for me, if I had been in the Ministry of Health, about the issue of the underserviced area program, potentially -- northern physicians' discontent with what was called the cap by them, in fairness, and in your parlance "movable threshold" or some --
Mr Decter: The threshold payment adjustment.
Mr Elston: Yes, okay. It is painful, no matter how people look at it, in the medical practice up in northern Ontario, and that was what was generating a lot of heat. Would you not have been sensitive at all to the mention of someone who might have fallen into the category of an underserviced area professional? Would that not have raised a flag for you? You just came from a big meeting on that.
Mr Decter: I had just come from a meeting where essentially the point we were trying to make to 260 physicians in Sudbury was: "Look. At the maximum, a dozen or 15 of you are affected, and of that group a number are affected in a very marginal way. So we think, in essence, you have misunderstood the impact." So my sense of it was that we had a lot of misinformation, a lot of explaining to do to get people to really understand the issue. Um, so --
Mr Elston: You actually had told the people in Sudbury that there were a dozen or 15 of them who would run afoul of the cap?
Mr Decter: Yes, I had provided them with aggregated estimates as part of the media kit. We had provided that information to them to illustrate -- essentially my point was: "You have misunderstood this. It affects far fewer of you than you think." We had people getting up even in the meeting and making the statement that all the specialists were going to leave Sudbury, which was a very difficult statement to sustain based on the evidence.
Mr Elston: So that aggregated material was all accomplished by going through individual physicians' files in Sudbury and doing a projection of where they were and where they were about to go, I presume, and then put together, is that it, by your officials?
Mr Decter: The material was assembled to support essentially an accurate portrayal of what was going on. I believe it is all in here as exhibit 8.
Mr Elston: The fact of the matter is that Dr MacMillan and Dr LeBlanc probably would have to have seen physicians' files and would have to have had material in front of them that would allow them to aggregate that material. Is that not true?
Mr Decter: No, I think that -- well, I cannot answer that. I do not know --
Mr Elston: Well, somebody had to --
Mr Decter: I do not know whether you need detailed information or you can just pull it off on the coding. The information that was provided -- well, there was a number of bits, but the specific -- well, there was detail on how many doctors in Sudbury city, northern Ontario, southern Ontario. There was information on -- there were some specific examples that were pulled that were real cases but were not northern cases. They were deliberately pulled by staff at OHIP so that they could not be identified, so that we could make the point that the technical fee exemptions were substantial. For example, a specialist in vascular surgery could be billing over $700,000 --
Mr Elston: I think I do not really need to hear that material, thank you, Mr Decter.
The Chair: You have five minutes remaining, Mr Elston.
Mr Elston: That is one of the problems in this question-and-answer period, that there is not really very much time for questions.
Let me go to the December 5 meeting just briefly. The list of the underserviced area program people was actually put together first, was it not, for the December 5 meeting? That material was available, sitting in the Ministry of Health, but it had never been put together until it was requested for that meeting of December 5, had it, as a list?
Mr Decter: No, the list is dated October 31, and our preparations for that meeting did not begin -- I did not agree to go until the week before, so --
Mr Elston: So the list itself -- if we were to discover from any source whatsoever that that list had never existed prior to the December 5 meeting, you would say that the people who declared that to me, for instance, would have been in error. Is that right?
Mr Decter: Well, the list that I took with me to Sudbury was dated October 31. I was informed that it was public domain information and I reached the, I think, reasonable conclusion that it was a pre-existing list of some sort.
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Mr Elston: It was not a list compiled as of -- information that was credible or at least that was in existence to the 31st of October 1991 rather than being dated that date?
Mr Decter: Well, that is a good question. I had read it as the list had been prepared on October 31, but I --
Mr Elston: I would like you if you could, Mr Decter, to investigate into that and report back to us here, if that is possible. I think we need that information because a lot has been made of that list. I must indicate that I have had some indication to me that the list had never been in existence prior to the preparations for the December 5th meeting. That in fact then does certain things to the materials which have been put in front of us.
Mr Decter, I have a couple of other questions which will probably jump around a wee bit because we are running short of time. You were a consultant and you actually would have received briefings in April -- sorry, October 1990 -- sorry, December when you came in as a consultant to do business for the Ontario government with the Ontario Medical Association in the negotiations. What sort of briefings did you have then and what sort of oath did you take in relation to your information received?
Mr Decter: Peter Barnes contacted me in December, although I did not receive any briefings until January. In fact, an issue of some concern was that material was sent to me and it was misplaced for a time by Purolator.
Mr Elston: Oh, my.
Mr Decter: I spent some part of Christmas scrambling around to find it and we actually did -- at one point Dr LeBlanc indicated to Purolator that if it could not produce the package, it would be having a visit from the OPP very shortly. It turned out that Purolator --
Mr Elston: The OPP even visit people who find packages, I have found.
Mr Decter: Well, there was that concern. I did not really receive any briefings until January when I visited Toronto on the assignment. The contract that Bernard Shapiro entered into with me on behalf of the Management Board contained significant confidentiality clauses. Those were respected and any information that I received that was confidential was kept confidential and was returned to the ministry on the conclusion of the assignment.
Mr Elston: When you concluded, in April, the negotiations, did you release any material to the OMA that would assist it in selling the package to its members? For instance, I have been advised that one of the things that the OMA was doing was indicating that a certain number of people only would be offended by the cap or the threshold issue and that there were somewhere around 6,000 physicians in the province who would reside between the billings of $350,000 and $400,000, which would mean they would be in what we described as sensitive areas. Did you or your negotiating team provide a breakdown to the OMA during negotiations of that type of information?
Mr Decter: There were discussions of physician billing distributions. I believe that material has been historically shared between the government and the OMA. That has nothing to do with individuals but how many physicians between certain billing levels. That was discussed. In fact, there were some lively discussions because there were some general practitioners well above the $1-million billing level and there was some controversy back and forth about whether those were real physicians or several physicians under one billing number. But to be fair, by the time the OMA was out on its road show around the province, my contract was over and I was back trying to put the rest of my business back together.
Mr Elston: But in fairness you must have kept --
The Chair: Only one final question. Time has expired.
Mr Elston: You are kidding. I was just getting to enjoy this actually. Well, then, maybe I will reassess the question I was going to ask. I had a memo in front of me at one point -- it is not here now -- from Sue Colley, dated November 15th at 8:58 am. It talks to one Larry Corea about "a meeting I have had with Michael," Ms Colley says. Michael was identified as you and she went on in the course of that document to identify certain numbers associated with Dr Donahue and some other things -- it is exhibit 50 -- a whole series of other things. That exhibit, you will note, has a whole bunch of deletions, because that was actually pursued in camera when we did the whole memo.
I am led to believe that this memo was generated out of discussions that Ms Colley had with you and that the materials, the specifics of this information followed a detailed discussion that you may have had with her. I will just set the framework for this memo. She had called Mr Corea the evening before. They had been worried about the inability of the minister's office to deliver certain materials to Mr Laughren's office and to Ms Martel's office. It is not clear in my mind whether they were also concerned about Ms Murdock or not, but certainly the two ministers. For three days or more they had been pursuing this and Larry Corea had asked Ms Colley, because they were concerned --
Mr Wood: What is your question?
Mr Elston: I am setting the framework for this because he is unaware of the transcript, he told us.
Mr Hope: He is going with the short stories.
Mr Elston: I will maybe have to repeat all this, Mr Chair.
The Chair: Allow the final question to be placed by Mr Elston without any interruptions.
Mr Wood: You told him a very short question.
The Chair: I said that he had one further question. Mr Elston is attempting to place that question so that Mr Decter can respond. I would hope that all members of the committee would allow that to happen. Mr Elston.
Mr Elston: I apologize for its being long, but to set the context for someone who has not reviewed the transcripts and otherwise --
Mr Decter: If I can shorten this, your counsel did share with me the November 15 memorandum last week. Mr Taman reviewed it with me, so I am familiar and I think I can answer a question.
Mr Elston: You think you can answer whatever I might ask you. I just want to repeat for the people out in Welland-Thorold who do not have the transcript in front of them and a whole series of other things, that Mr Corea had asked Ms Colley to talk to you about getting information about this particular situation up in Sudbury. We then were left with the evidence, exhibit 50, as a reply to Mr Corea. There was also some other information that was generated for him, including the now infamous number 44, which had gone to his office the day before and a whole series of things.
This seems to indicate to me, deputy, that you had at least several contacts with people other than the minister about Dr Donahue, that you had at least chatted -- you must have chatted, or maybe I am just misunderstanding or misreading the information that Ms Colley left with us, but it certainly appears as though the information that was generated out of her memo dated the 15th of November at 8:58 followed your conversations. Can you describe for us the meeting you had with Sue Colley, the details of the materials that you gave to her with respect to Dr Donahue and an explanation, if you can, why it was only following your encounter with her on the morning of November 15 that this material was generated for us?
Mr Decter: Well, I had a brief meeting with Sue Colley, which was not unusual. The minister's executive assistant would and still does often pop in for two minutes or three minutes to catch me on an issue or several issues. We both tend to start early. So my recollection is that we discussed the issue in general, that there was some heat. My memory is that I reiterated to her that we were dealing here with an epilation issue, not a threshold issue, in my view, but that it was a difficult issue for us because the service impacts thing could not be addressed.
You may see in Sue Colley's point 4 essentially the thinking that led to my letter to Dr Donahue, which is, we do not really know what the service impact -- the question we were being asked by the minister's office very forcefully was, "What's going to be the impact on services?" Well, you do not know what the impact on services is going to be unless you can get at what the individual physician is actually doing in his or her practice because, you know, saying someone is a dermatologist does not mean that is what he is -- you know, he may be doing epilation, he may be doing something else. You know, physicians have wide practice variations, despite what title they might have on the door. Some family practitioners deliver a lot of babies, some do not deliver any babies.
So in terms of the number, I do not believe I provided Sue Colley with a number. I would not have had a number.
Mr Elston: You do not believe her?
Mr Decter: No, my testimony would be I did not provide her with a number, and having been shown the number, which I will not repeat here because I believe that is why it has been wiped out --
Mr Elston: That is right, exactly.
Mr Decter: I tried with your counsel to sort of construct a way one could get to that number, and I could not. It seemed to me that it was the wrong number on everything I knew then or still. So I do not know where the number came from, but it did not come from me.
Mr Elston: Could we just have the witness tell us how he would have constructed the development of a number that would either lead Ms Colley to put it in this memo or perhaps even lead Miss Martel to suggest there were unacceptable billing practices?
The Chair: That may be a question in camera, I am advised by counsel.
Mr Elston: I think it is a good question.
The Chair: Time has expired. Certainly, if there are any members who wish to continue that line of questioning, we are going to be moving into an in camera session. Before doing that, members will remember that Mr Eves referred to a series of press clippings. They are now being distributed and will be marked as exhibit 77. We will recess for 10 minutes so that we may be able to move the session into an in camera proceeding.
The committee continued in closed session at 1612.