COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO
CONTENTS
Tuesday 19 October 1993
Expenditure Control Plan Statute Law Amendment Act, 1993, Bill 50, Mrs Grier / Loi de 1993 modifiant des lois en ce qui concerne le Plan de contrôle des dépenses, projet de loi 50, Mme Grier S-411
Ontario Medical Association
Dr Tom Dickson, president
Steven Barrett, legal counsel
Ontario Hospital Association
Peter Harris, chair-elect
Ron Sapsford, vice-president, teaching and specialty hospitals
College of Physicians and Surgeons of Ontario
Dr Michael Dixon, registrar
Dr John Carlisle, deputy registrar
STANDING COMMITTEE ON SOCIAL DEVELOPMENT
*Chair / Président: Beer, Charles (York North/-Nord L)
*Vice-Chair / Vice-Président: Eddy, Ron (Brant-Haldimand L)
Carter, Jenny (Peterborough ND)
Cunningham, Dianne (London North/-Nord PC)
*Hope, Randy R. (Chatham-Kent ND)
*Martin, Tony (Sault Ste Marie ND)
McGuinty, Dalton (Ottawa South/-Sud L)
*O'Connor, Larry (Durham-York ND)
*O'Neill, Yvonne (Ottawa-Rideau L)
*Owens, Stephen (Scarborough Centre ND)
*Rizzo, Tony (Oakwood ND)
*Wilson, Jim (Simcoe West/-Ouest PC)
*In attendance / présents
Substitutions present / Membres remplaçants présents:
Sullivan, Barbara (Halton Centre L) for Mr McGuinty
Wessenger, Paul (Simcoe Centre ND) for Ms Carter
Also taking part / Autres participants et participantes:
Ministry of Health:
Gilbert Sharpe, director, legal services
Wessenger, Paul, parliamentary assistant to the minister
Williams, Frank, deputy director, legal services
Clerk / Greffier: Arnott, Doug
Staff / Personnel: Gardner, Dr Bob, assistant director, Legislative Research Service
The committee met at 1542 in room 151.
EXPENDITURE CONTROL PLAN STATUTE LAW AMENDMENT ACT, 1993 / LOI DE 1993 MODIFIANT DES LOIS EN CE QUI CONCERNE LE PLAN DE CONTRÔLE DES DÉPENSES
Consideration of Bill 50, An Act to implement the Government's expenditure control plan and, in that connection, to amend the Health Insurance Act and the Hospital Labour Disputes Arbitration Act / Projet de loi 50, Loi visant à mettre en oeuvre le Plan de contrôle des dépenses du gouvernement et modifiant la Loi sur l'assurance-santé et la Loi sur l'arbitrage des conflits de travail dans les hôpitaux.
The Chair (Mr Charles Beer): Good afternoon, ladies and gentlemen, and welcome to the second meeting of the standing committee on social development with respect to Bill 50, An Act to implement the Government's expenditure control plan and, in that connection, to amend the Health Insurance Act and the Hospital Labour Disputes Arbitration Act. This afternoon we will be hearing from three organizations: the Ontario Medical Association, the Ontario Hospital Association and the College of Physicians and Surgeons.
ONTARIO MEDICAL ASSOCIATION
The Chair: Our first witness this afternoon is Dr Tom Dickson, who's the president of the Ontario Medical Association. Welcome to the committee, Dr Dickson. We're pleased you could join us this afternoon. Would you like to go ahead with some opening comments, and then we'll get into a question and answer phase.
Dr Tom Dickson: Thank you very much. Just a few weeks ago I seemed to be appearing in the same room and a very similar makeup, although the committee's different. As you're aware, we're here to discuss Bill 50. I will keep my comments relatively brief so that there is some time for questioning.
With me today are Bernita Drenth, Jacinthe Boudreau and Steven Barrett, colleagues of mine from the OMA who will help out with some of the questions.
The Chair: If you would like them to be with you at the table, that's fine.
Dr Dickson: I think for now we'll just hold off and then we'll see how things go. Bill 50 in its original form was draconian and ill conceived. Its potential was such that this one piece of legislation could have destroyed Ontario's already strained health care system. The proper delivery of health care is too vital to this province to be sacrificed to a short-term agenda that ignored the input of providers in the interests of patients.
While understanding today's fiscal realities, physicians remain dedicated to preserving our health care system. For that reason, we've worked diligently, through our framework agreement with government reached back in 1991, to improve efficiency and cost-effectiveness in the provision of quality health care services.
We were pleased, therefore, when government returned to our negotiating table this summer and we could begin to discuss in a more rational manner the challenge of dealing with serious fiscal constraints while seeking to maintain excellent standards of care.
Bill 50, as it stands today, reflects with one exception, which we'll get into, the outcome of our negotiations with government as embodied in the 1993 interim economic agreement. I'd like to briefly discuss three areas in which the government proposes to amend Bill 50.
In the physician resource provisions: In terms of physician resource measures, the bill contains a temporary moratorium on fee-for-service payments to doctors who have not practised in Ontario before and who were not trained in Ontario, with various exceptions described in the new section 19.1 of Bill 50.
I should note for committee members that some of the considerations leading the OMA and government to recognize the need for a temporary moratorium are described in the OMA-government agreement itself, in the preamble to schedule 3. I have copies for committee members if you don't already have them.
From the OMA's perspective, the government's original proposals to lock newly trained doctors out of practice by imposing significant reductions in their fees under OHIP was completely unacceptable. The agreement, now reflected in the proposed amendments to Bill 50, at least protects the product of Ontario's medical training establishment.
Although it does place limitations on the ability of new non-Ontario-trained physicians to practise on a fee-for-service basis, this is a temporary -- and I repeat temporary -- moratorium in effect at maximum for the duration of the social contract period; hopefully for a shorter time period given the government's commitment to attempt to negotiate physician resource agreements with other provinces.
As well, I should emphasize with the committee that the legislative measures in Bill 50 are but one part of the overall approach to physician supply and distribution provided for under our agreement. By way of example only, the government and the OMA are currently negotiating a master contract to provide for positions for physicians to meet the needs of people of Ontario in underserviced communities. In fact non-Ontario-trained physicians who are affected by the temporary moratorium in Bill 50 would be eligible for these positions.
The OMA also supports the Bill 50 provisions containing improvements in the area of third-party service billings. In 1992, the ministry and the OMA agreed to rewrite the then existing third-party regulations to clarify what was and what was not a third-party service.
Nothing in the new agreement changes this, but instead the government has agreed to amend Bill 50 to make it clear that where a third-party service is requested, the third party requesting the service will ultimately be responsible for paying the doctor rather than the patient. From the perspective of the patient, this is a significant improvement since at the present time there is no independent legal obligation on the third party to pay or to reimburse a patient where the patient has paid.
As well, we have agreed to continue to look to the courts to enforce third-party payment obligations as is presently the case where there is a dispute. However, the OMA and government have agreed to work together to try and develop an alternative, less expensive and more accessible administrative mechanism to deal with third-party disputes.
I would like to draw the attention of the committee to the serious concerns the OMA has over the proposed amendment to Bill 50 in relation to the mandatory reporting of suspected health card fraud. The OMA is as interested as the public and members of the Legislature in effective measures to control health card fraud.
In fact I appeared in this committee room three or four weeks ago and made that very point for about an hour and a half. For that reason, we negotiated specific provisions in the agreement dealing with health card fraud, including the introduction of a new photo identification card.
We also specifically negotiated a provision obligating the government to provide a mechanism making it possible for physicians to report suspected fraud without incurring liability. At the present time, although there are certainly cases when doctors suspect fraud and believe that the doctor-patient relationship would not be compromised if OHIP were advised, they are afraid to report because of the risk of legal liability.
Now, however, the government proposes to bring in a mandatory reporting obligation with physicians being guilty of committing an offence under the Health Insurance Act and facing other uncertain liability if they fail to report the possibility of, to quote from the amendments, "a person who is not a resident" seeking OHIP coverage as if the person was a resident. We oppose this unnecessary and inappropriate legislative and governmental intrusion into the integrity of the physician-patient relationship.
It is one matter to conclude that we as a society value a child's physical and emotional wellbeing and safety over the integrity of the physician-patient relationship in the case of reporting something as serious as child abuse. For that reason, physicians support the mandatory reporting of suspected child abuse. But this is of a different scale altogether in comparison with possible health card fraud. No one's life or safety is at risk as a result of suspected health card fraud. Physicians should not be conscripted to serve as the government's health card police. Doctors are doctors and not private investigators. This really is a money issue and not a care issue.
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There is no question that physicians would in appropriate circumstances report fraud when they see it, but that is significantly different from imposing on physicians a role where they become the accuser and, most likely, the inquisitor of their patients due to mere suspicion. That clearly lies outside of our role as trustees of our patients' welfare.
In the OMA's view, to be required to report whenever there are reasonable grounds to believe someone may not be a resident is an impossibly vague and uncertain standard for physicians to apply in the normal course of their day-to-day practice. What degree of likelihood is required before someone may not be a resident? How is the physician to form a belief as to whether someone is a resident when this calls for legal and factual understanding of the concept of residency, which lawyers and courts have trouble grappling with?
What if a physician did not believe someone should be reported, but someone else says the physician had a reasonable ground for such a belief? How much and what kind of information which forms the basis for the belief that a person may not be a resident must be reported to the general manager? Since physicians will be liable for an offence if they do not report, physicians may feel compelled to report or scrutinize their patients in circumstances which will in fact do significant and irreparable damage to the physician's relationship with the patient.
Physicians confronted with the belief that a person may not be an insured person will wish to seek an explanation from the patient before reporting their patient to the general manager. The imposition of this kind of investigative and confrontational role may significantly alter the integrity of the doctor-patient relationship.
Moreover, physicians may face the possibility of legal liability if the discussion with the patient is overheard by a third party. As an example, many of these inquisitions of the patient and his background will surely take place in waiting rooms around the province and it'll be left up to the physician's staff. Waiting rooms are not the most private places in the world, and often third parties are going to be in that room and will overhear this inquisition taking place.
No doubt there are cases where it would be appropriate for a physician to report his or her belief that a patient is not eligible for OHIP coverage, but this should not be mandatory. Rather the appropriate balance -- and I would stress the word "balance" -- should be struck by leaving it to the physician's judgement as to whether a physician's good-faith belief in the possibility of health card fraud can be reported without jeopardizing the integrity of the physician-patient relationship.
The government should be responding to the legitimate concern of physicians that if they do, in good faith, voluntarily report suspected fraud, they face possible legal liability. The answer is to remove the concern over liability, as the government and the OMA agreed during negotiations, not to ignore that agreement and bring down the heavy hammer of mandatory reporting.
Forcing physicians to do something they would otherwise be prepared to do voluntarily in appropriate circumstances is more likely to lead to resistance, not cooperation. As a result, the OMA proposes permissive reporting mechanisms which would protect physicians from liability where they, in good faith, report suspected health care fraud. This is the only option which (1) is consistent with the government's obligations under our agreement, (2) preserves the integrity of the physician-patient relationship and (3) is workable and realistic in real-world practice.
Thank you for your time. I'd be happy to entertain questions on any topic relating to Bill 50.
The Chair: Thank you very much, Dr Dickson, for your presentation. We'll move to questions.
Mr Stephen Owens (Scarborough Centre): Starting at the end of your presentation with respect to mandatory reporting, I didn't have the pleasure of hearing your presentation when you were last here, but one of the issues that I struggle with as a legislator is understanding who and where the responsibility to report does lie and how you effectively place that responsibility.
In terms of whether or not it's a care issue, perhaps it's not a care qua care issue in the strictest sense, but ultimately, if there is not some effort to reduce what is viewed as a serious problem of fraud, then effectively care will be affected at the end of the day, so I guess I need some clarification on why you feel as an association that your members, who derive their income from a particular system -- why there is what appears to be, and I don't want to put words in your mouth, an unwillingness to accept responsibility for ensuring that it is an efficacious system and in terms of ensuring that people who are entitled to care get the best care possible and that those who, for whatever reason, are not entitled to receive care in this province do not receive the medical services.
Dr Dickson: Let me start out by alluding to my presentation a few weeks ago. I don't think anyone here would doubt my enthusiasm, and maybe my enthusiasm for reporting fraud was interpreted as supporting the mandatory mechanism.
Our goals are the same: I don't think anyone around this table disagrees that our goal is in fact to eliminate fraud from the system; on that we don't disagree at all. I would not disagree at all either that physicians have to shoulder their burden of responsibility in reporting health card fraud. The problem is, how do you do it? If you want to get to your goal, what's the most logical, workable method of getting there?
We believe a permissive form of reporting in fact will be more workable in a grey and fuzzy area, that it'll be more acceptable to physicians and to patients. Quite frankly, physicians feel very uncomfortable about getting involved in a police investigator role with their patients in the examining room. We're not trained to do it and we feel uncomfortable doing it. We'd like to do it and have the protection from liability, but we need some permissive nature to that process that allows us to use our judgement, taking the rights and our concerns about the patients in mind.
I know it balances on a knife edge. It'd be nice if there was a nice black and white answer. We want to do our part, but we think the permissive route is really the most workable route and will work the best for doctors.
Mr Owens: Then in terms of how you view the current language, you see that you're not protected as a practitioner from legal liability?
Dr Dickson: No. It's my understanding that the changes that are in the rest of the bill with respect to liability are satisfactory.
Mr Owens: Then it's your view that you are playing a more "coercive" role in the elimination of health care fraud than you or your organization feel comfortable in doing?
Dr Dickson: It really boils down to: If there is a reasonable ground, how do you establish the reasonable ground? Presumably that's by acquiring information. Once the suspicion is there in the physician's mind and they must inquire of the patient further information to decide whether they're going to report or not report, that really does put the physician into a confrontational police kind of role, an investigative role, with the patient. That's not the role I was trained to provide. I'm there to provide care and comfort to my patients. That's what I was trained to do. I'm really not much of an investigator when it comes to fraud. It might be the better solution, I suppose, from a technical point of view, but from a practical, provider's point of view, we believe it's not the best.
Mr Owens: Is there an understanding from your organization and perhaps in discussions with the Ministry of Health about whether there's a pattern in terms of the kinds of procedures people would be coming in for, whether it's transborder prenatal care or -- where does the fraud take place? Does it take place more in the emergency room? Is it in the office of the GP? Is there an understanding of where the fraud takes place and whether there is a specific type of procedure that seems to be more open to -- I hate to use the word "abuse," but that's more open to being used by those who perhaps are not entitled to care in the province?
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Dr Dickson: To go in reverse order, I don't think anybody could suggest there was any given procedure or way of identifying types of care that were delivered that you could target or about which you would suspect that this might be where you should look for fraud. Clearly, there are places where you might logically assume you should look, and that's where you have a more mobile population: emergency departments; that kind of situation where people are arriving who don't have an ongoing relationship with the person they're seeking care from. Automatically, there's no history to the relationship, and if there's no history to the relationship, then fraud is more likely to be missed in some manner. But that's the only way I think I could ever answer that question. I'm not aware that anybody else has any better information.
Mrs Barbara Sullivan (Halton Centre): It probably won't surprise you if my questions also concentrate on the reporting aspect that will be required under this legislation.
One of the concerns in terms of much of the anecdotal information that's been put forward with respect to potential fraud in the system has been that much of the information relates to visible minorities. There ought to be some caution, as we're looking at these kind of reporting requirements, if there are targeted groups and if much of that anecdotal information is related to those scenarios.
As a consequence of that kind of concern, I wonder if you could tell us, if this legislation proceeds as the amendments are now before us, how you would advise doctors across the province what, in your view or in the view of the OMA executive, would be reasonable grounds to believe that a person is non-resident; and how you would advise them, given that these are mandatory reporting requirements, of the steps that would have to be taken to avoid prosecution under the Health Insurance Act and the fines which might follow; and what other kinds of steps you would take as an association; and further, if this would indeed change the role of the college, from your perspective -- and the college is going to come later -- in terms of adding a new disciplinary function to the college's activities.
Dr Dickson: That's quite a series of questions. Obviously, we have not gone into any depth or detail in terms of trying to figure out what we might have to advise our members about suspecting reasonable grounds; quite frankly, I don't think we could. When we're dealing with hypotheticals, we could probably imagine a scenario where someone presented who clearly did not belong to a card, when the sex was clearly wrong; obviously, the card did not belong to that individual. That might constitute a reasonable ground that the cardholder was inappropriate. Beyond that, it just becomes greyer and greyer the deeper you go into what are reasonable grounds; I think it could become very problematic.
I think you're quite right in identifying clearly that if residency is the major determinant of insurability under our system, then clearly immigrants to this province are the ones who are automatically going to be front and centre in this whole process. That's going to place physicians and anyone who deals with a heavy immigrant population, and I do personally in my practice, in an awkward position. It's going to be very difficult.
I don't think I could really advise you as to what concrete proposals we're going to suggest to our members on how to protect themselves. It's difficult to provide advice on protecting oneself against a vague and indeterminate form of system, and that's what this represents as it is. That's why we'd like to see it permissive rather than mandatory. It allows some softness to the process and will allow some discretion, and in health care we obviously have to use a lot of discretion a lot of the time.
The role of the colleges is going to be very difficult, because most physicians do not want to run afoul of their college at all under any circumstance and they'll take this very seriously. One of the concerns if it's mandatory and how seriously they take the potential threat from the college if they don't live up to this legislation is, does it change their zeal in the inquisition, if you will, of their patients and how aggressively they'll pursue this? That will be up to the individual physician, but lurking in the back of his mind ultimately will be that fear, that he doesn't live up to the standard. Not knowing what the standard is places everybody in jeopardy. Again, that's why we call for permissive legislation as opposed to mandatory.
Mrs Sullivan: There is another section of the amendments that have been put forward which calls for voluntary reporting, under section 43.2 of the Ontario Health Insurance Act, which would allow any person to report to the general manager any matter relating to the administration or enforcement of the Ontario Health Insurance Act. Is that too broad a scope, do you think, in terms of dealing with the issues of fraud, and is it appropriate that that kind of reporting mechanism be available to any person, including physicians, when it seems to me that this section and the amendments that are put forward were specifically to address the question of fraud?
Dr Dickson: I am going to defer to one of my legal colleagues for a moment and ask about that.
Mr Steven Barrett: I'd be happy to answer the question if I had listened to it being asked. Sorry.
The Chair: While Mrs Sullivan prepares to rephrase the question, would you mind introducing yourself?
Mr Barrett: I'm Steven Barrett, legal counsel to the OMA.
Mrs Sullivan: Under new amendments that have been put forward by the government under what would be section 43.2 of the Health Insurance Act, any person could report to the general manager any matter relating to the administration or enforcement of the act or the regulations, even if the information reported is confidential or privileged and despite any other act, regulation or other law prohibiting the disclosure of that information. Is that too broad a reporting mechanism to be included in this act, considering that it overrides not only the Public Hospitals Act but the kind of standard patient-doctor confidentiality provisions and that the intent of this section of the amendments is to deal with the fraud issue?
Mr Barrett: The short answer to that question is yes, it probably is too broad. The OMA's preference, as Dr Dickson has indicated, would be to permit physicians to report suspected fraud, not to require them to do so, but to limit the ability to report to just that: suspected health card fraud.
We're not sure that the way 43.1(2) defines the events relating to health card fraud quite captures the appropriate description of what ought to be reported. What we do think is that the appropriate amendments we would prefer here would be to omit 43.1 altogether, the mandatory duty, and to recast 43.2 as a permissive provision in respect of at least physicians, and perhaps others, to report on any matter relating to health card fraud -- that obviously isn't the legal language, but one would have to develop that language -- and then to retain 43.3, which is the protection from liability for making such a report. That would be sufficient from our perspective.
Mrs Sullivan: In your judgement are the provisions of 43.3 adequate protection from liability for physicians?
Mr Barrett: I'm a lawyer, so I always like to use a hundred words when one will probably do. There have been discussions on this that I've been involved in with legislative counsel, and I think the OMA is content with the view that the language of 43.3 referring to "no proceeding being allowed to be brought" is broad enough to capture all the types of proceedings that might be brought against physicians. On that front, I think we're comfortable.
In terms of the scope of the matters which are protected, I think it's fair to say that the OMA believes the protection which -- it's difficult to read grammatically, but what it means, we think, and we hope a court would agree, is that unless a person acts both maliciously and without reasonable grounds in making this report, they're protected from legal liability.
It's helpful to put a comma after the word "person" in the fourth line there -- it makes it easier to read -- but legislative counsel doesn't like commas, so you'll have to live without one, I guess.
Mrs Sullivan: Is it your understanding that "no proceeding" would include actions that may arise in a disciplinary hearing?
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Mr Barrett: The view of legislative counsel is that "no proceeding" would include disciplinary proceedings before the CPSO. I'd certainly be interested in hearing the CPSO's views on whether this is caught. I think it's fair to say, and Mr Williams and others can agree or disagree with me, that the intent is certainly to include those. If it's your collective view that "no proceeding" wouldn't be broad enough to include a CPSO proceeding, then it ought to be amended to make that clear.
I think the OMA's view -- and we could be wrong; I'm just a lawyer -- is that the "no proceeding" language is broad enough. That's the view of legislative counsel, the view of the ministry lawyers. I understand from being here yesterday that you've asked for some further information. Certainly, if there is a concern that this isn't broad enough, the OMA would support and urge you to amend it to make it very clear that CPSO proceedings are caught.
Mrs Sullivan: Am I finished? My time is up?
The Chair: I'll give you one more, but we have a couple of others. While we do have some flexibility on time, I'd like to allow others.
Mrs Sullivan: I wanted to refer to the agreement, which spoke about some of the technical means of two-way communication between the OMA and the ministry with respect to assistance in card verification and so on.
Two of those issues, or actually three, were written into the schedules to the agreement, one calling for photo identification, a second calling for interactive voice response mechanisms to be available to all physicians and the third requiring that the ministry introduce swipe technology into 50 hospitals a year for the next three years.
In the public accounts hearings, the testimony from the OMA indicated that the interactive voice response technology was not workable, although the agreement was signed in August, and that in fact swipe technology was preferable. The minister has indicated recently that indeed the photo card is not going to be the technology of choice, that holograms are being looked at, and yesterday we had another hint from the parliamentary assistant.
Is the OMA willing to go back to the table and move away from these kind of very specific contractual relationships or agreements that have been included in the schedule to that agreement to ensure that in fact there is an appropriate health care technology that will move us into a database management system?
Dr Dickson: Our view is that we have an agreement with government. It is a contract. We would be very reluctant to reconsider any of these proposals. We do not believe a hologram is a substitute for a photo ID card at all. It's certainly a way of preventing reduplication of cards or creating counterfeit cards, but in fact it doesn't allow the verification by visual identification across the table. In fact, we think they'd be missing a great broad swipe of potential fraud out there, so we don't think that's the answer. We suggested the photo ID card as one leg of a four-legged table for stamping out fraud. We'd hate to see it softened in any manner whatsoever.
The IVR reporting mechanism is awkward, and therefore we don't think it is the ultimate solution at all. The swipe card reader certainly will help tremendously, and we'd like to see that proceed expeditiously. We understand the government is working on it. It's not easy but they're proceeding. We would not support the dropping of the photo ID card at all.
The Chair: Thank you. Mr Wilson, then Mr Hope.
Mr Jim Wilson (Simcoe West): Thank you, Dr Dickson, for your presentation. Before I get to my question, I want to refer to some comments made by Mrs Sullivan at the beginning of her round of questioning with respect to anecdotal information about health card fraud. She indicated that a lot of that anecdotal information seemed to point to visible minorities.
I want to say for the record that I am not aware of any case that was brought up by my party or my colleagues in the Legislature that involved visible minorities. It has not been a question surrounding this issue. I am not aware of the colour of the skin of many of the suspects that have been brought up in the Legislature, except for one case, which was a story related to me, and subsequently related to the Legislature, regarding four Iranian citizens who allegedly were visiting a radiology lab in Toronto. I just want to clear that up for the record, because I think it leaves a false impression out there.
With respect to today's proceedings, I have a very simple question, Dr Dickson, and I'm glad legal counsel is with you. As I read the 1993 interim agreement on economic arrangements, ie, the OMA-government agreement which later became the social contract, it does not mention, or my reading would be that it does not infer in a substantial way, that doctors on a mandatory basis would become health card police.
I'm just wondering, do you have a legal opinion? It seems to me that if this agreement is forming the basis of Bill 50, Bill 50 does not reflect what's in this agreement with respect to reporting and I would think the government is in violation of its own social contract.
Dr Dickson: I guess your question is, does the agreement contemplate a mandatory mechanism? Our view is no, it does not, it contemplates a permissive or a voluntary mechanism. We believe that's what the wording supports and legal counsel --
Mr Jim Wilson: That would be mine: "and a permissive or voluntary mechanism." And as I read paragraph 3, "The Ontario Medical Association agrees," that section talks about a pilot project only. What's the legal opinion and what avenues do you have? If you can't get Bill 50 at this committee, I would think you could challenge the government as a breach of contract.
Mr Barrett: Dr Dickson has written to the minister indicating that in the OMA's opinion, that paragraph 12 on schedule 2 which sets out: "The government of Ontario's commitment obligates the government to provide a detailed mechanism by which a physician can," not must, but can, is able to, "report detected or suspected fraud, without incurring liability" -- and then, as you pointed out, Mr Wilson, paragraph 3 in terms of the OMA's obligations talks about a pilot project which would enable physicians to report. Again, enabling, not mandating, physicians to report.
I was involved in the negotiations and the OMA made it very clear at the negotiating table that it would not support a mandatory reporting obligation. Certainly the OMA, in addition to the significant policy concerns that Dr Dickson I think has outlined before you, also takes the position that for the government to act in this way is contrary to the agreement and there may well be remedies available to the OMA in that regard.
Mr Jim Wilson: Under the social contract, are there not remedies built into the statute itself?
Mr Barrett: There's a dispute resolution mechanism set out in the OMA-government agreement where one party alleges the other has breached the agreement, and you'll recall during the social contract negotiations they only filed a bad-faith bargaining complaint and obtained an interim order forcing the government back to the table, so that's certainly available to the OMA. It would be preferable, obviously, for the legislation simply not to proceed as presently proposed and to be altered to comply with the agreement.
Mr Jim Wilson: I certainly give you my caucus's best wishes with respect to this issue. As you may have noted if you were watching yesterday -- it's in the transcripts -- very clearly we do not support this particular section of Bill 50 as it's my understanding, and Dr Dickson confirmed some of this when he appeared before the legislative public accounts committee dealing with health card fraud, that physicians were not extensively consulted in any way, and some would tell me not consulted at all, when the last government brought in the health card system. Now that it's all messed up, you're required to police the system, and I and my colleagues, as you know, are very much opposed to that.
Secondly, I would think that given what the parliamentary assistant said yesterday, he was very clear in his opening remarks that the government may possibly introduce a photo card system. I make no comment at this moment on whether or not a photo health card system is the way to go, although if you saw question period today you may know that it's not.
There's a very clear sentence in the social contract in this agreement that says that the government will introduce a new health card with a photograph. I guess you'll know the answer to that, according to this agreement, by December 31 of this year when the government has to make its final decision. If the government doesn't move ahead with that, would that be something else you might challenge this agreement on?
Dr Dickson: If the government didn't move ahead on the photo ID card, yes. As counsel has suggested, there are remedies in our agreement. There is a mechanism for resolving that kind of situation.
Mr Jim Wilson: Can you just quickly bring us through those remedies. Where do you end up?
Mr Barrett: The agreement calls for an entity known as an umpire, basically the arbitrator, to make a decision. That decision is final and binding on the OMA and the government and it can be reviewed in the courts. But at the end of the day the OMA takes the view that any decision of the umpire is binding on the government, so there would be a proceeding much as in a court, but in a slightly more informal way, before an umpire.
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Mr Jim Wilson: To be clear, this agreement overrides any other avenues or remedies that might have been provided in the original social contract legislation.
Mr Barrett: Maybe the way to answer that is that as far as we're concerned there's nothing in the social contract legislation that ousts this agreement.
The Chair: Before moving to Mr Hope, the parliamentary assistant wanted to raise a couple of issues.
Mr Paul Wessenger (Simcoe Centre): I'd like to have counsel respond to some of the comments that have been made.
Mr Frank Williams: I'm somewhat sensitive to using this as a forum to get into issues about whether or not the agreement the government has entered into with the OMA in fact says what the OMA is before you alleging it says. My view is that it's silent on whether it's mandatory or voluntary. Perhaps, as counsel has indicated, this may be an issue that has to be brought up before the umpire, but I don't think this is really the proper forum for us to be debating whether in fact our agreement says one thing or the other.
Mr Jim Wilson: My suggestion to the committee, then, would be that we stay these proceedings until this issue is decided. I'm not going to waste my time for a few weeks here, given that all of this may be --
Mr Larry O'Connor (Durham-York): You've wasted a lot of our time.
Mr Jim Wilson: Larry, didn't I read a nice letter from your constituent the other day? All of this may be a waste of legislative time when we have Bill 100, the sexual abuse bill, that the public certainly wants dealt with. Could I have a response from the parliamentary assistant on that, Mr Chairman?
Mr Wessenger: I don't think I'm very agreeable to your suggestion, Mr Wilson, on how to deal with this legislation. We're having hearings at the moment, and of course we still have to go to clause-by-clause. I think the most appropriate time to determine what the amendments are is during the clause-by-clause process.
Mr Randy R. Hope (Chatham-Kent): I'm just trying to get a better understanding of this, dealing with the OMA and the members you represent. I'm curious about how many of your members have closed practices. I listened to your comment about conversation in the waiting room of the office, and I'm just wondering, of the doctors who are members of your association, how many have closed practices.
Dr Dickson: By "closed" do you mean they're not accepting new patients?
Mr Hope: That it's not a clinic, where you can walk in and automatically get doctors' services; where they have selected patients that are related to the doctor. You just can't walk in off the street. It's not a clinic provision but a closed practice, which means you have to go through an examination process to have that doctor examine you. Don't tell me you haven't heard the term "closed practice." That's a normal state.
Dr Dickson: You mean a practice where you would have to have a referral to get an appointment?
Mr Hope: No, I'm talking about a general -- oh, boy.
Interjections.
The Chair: Order, please.
Mr Hope: Let's put it in perspective, because I listened to some of the concerns that were raised about reporting. My own doctor, if you go to him you're lucky, because he doesn't accept new patients. That's called closed practice, if you don't accept new patients, which means he knows everybody who's walking in and out the door. He knows my wife, my kids, everybody else. That's referred to in rural Ontario as a closed practice.
Your concern, you say, is confidentiality. I'm saying the potential for this to occur would probably be in emergency rooms or in clinics, where there is potential fraud -- everybody's using the word "fraud" -- with people who have health cards who are not entitled to them.
I'm listening to the concerns of the OMA. They want to help cut health care fraud -- that's the terminology they use -- but they don't want to because they want to do it at their own discretion. I guess I'm having a hard time with that balance.
Dr Dickson: I understand your question now; I wasn't sure of the definition of the term "closed practice." Probably the best guess I can give you is that likely about a quarter of the practices in this province would be defined as closed practices. That's just a guess off the top of my head. It would only apply primarily to general practitioners who in fact have a large patient roster and simply can't work any harder and choose not to work any harder.
I'm a consultant. I only see people on referral; therefore my practice, by definition, is 100% open. Everybody I see is a new patient and I have no history with them at all.
Mr Hope: But it's open on referral?
Dr Dickson: Yes.
Mr Hope: So my GP, my family doctor, would have to refer me to you; it's still a closed practice. I can't walk in off the street and see you; I have to be referred, so it's a closed practice, right?
Dr Dickson: Except in an emergency, through the emergency department. I'm on call one night in four, so those people who come through walk-in clinics, where there's no history in the relationship -- a fair number of those referrals in fact come with very little historical relationship. It doesn't solve the problem. It may lessen it, but it doesn't solve the problem.
Mr Hope: I'm sitting here and listening to the comments that are being made, and I'm one of those taxpayers who loves to see what services are being provided for me. I have an insurance policy, and when my car gets in an accident, when work is being done on it, a bill is prepared and I verify and sign it and say, "Okay, all right to pay; those are the services that were rendered."
I'm looking at a way to put this all in the perspective of trying to control it. I'm serious about controlling health fraud. I hear it from my seniors and everyone else.
I was just having a hard time understanding when you were talking about in the waiting rooms. There's a gatekeeper, always, to get to you, because you deal in a specialized practice. You have a gatekeeper, and the gatekeeper is the normal family physician. You're very unlikely to get somebody referred from an emergency room into a specialized service. They usually say to go see your family physician. I've never seen that situation where I went into an emergency room, for whatever reason -- the doctor's office wasn't open and I went to the emergency room for services. They'd say, "Go back on Monday and see your family physician, and he'll make the referral to get to a specialist if a specialist is required."
I'm just wondering if it's really true that we're after really controlling the misuse of health care cards that are being used by people who are not entitled to the luxury that we have here in the province of Ontario.
Dr Dickson: Let me absolutely clear: We want to do exactly what you want to do. The question is, how do we get there? We believe that a permissive route will allow us to get there in a much more expeditious way, is much more workable and is consistent with our agreement with this government.
As to the question of whether patients are always referred and there always is this historical linkage to the physician, as I said, that may limit the exposure to fraud, but it does not eliminate it, because we still see emergency cases. We still get referrals through walk-in clinics. You may come from an area of the province where you don't have walk-in clinics. I come from an area where there are dozens of walk-in clinics.
Mr Hope: We have a doctor shortage, so we don't have walk-in clinics. Sometimes we don't have doctors.
Dr Dickson: Anyway, it's simply not a black-and-white issue.
The Chair: I'm afraid I'm going to have to call a close to this presentation, but I want to thank you for coming. I should probably also thank you for allowing us to understand better the workings of the lawyer's mind, because I think we've had some interesting statements here as well that maybe we'll use later. Dr Dickson, thank you very much for coming before the committee today.
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ONTARIO HOSPITAL ASSOCIATION
The Chair: I call the representatives from the Ontario Hospital Association, if they would be good enough to come forward. Welcome to the committee. If you'd be good enough just to introduce yourselves for Hansard, then please go ahead with your presentation. I believe it's been distributed to members of the committee.
Mr Peter Harris: Thank you, Mr Chairman, members of the committee. My name is Peter Harris; I'm the chair-elect of the Ontario Hospital Association. I'm joined by Ron Sapsford, the OHA vice-president, teaching and specialty hospitals.
We're pleased to be here today to offer to the committee some comments on Bill 50, the Expenditure Control Plan Statute Law Amendment Act, 1993.
We must express at the outset our disappointment with the very short notice given for these hearings and the consequent difficulties facing organizations like ours in preparing comprehensive responses to both the bill and the proposed amendments.
As well, we would remind members of our strongly stated opposition to the bill in its original form. Our concerns were summarized in the letter to the Honourable Ruth Grier dated July 6, 1993, which condemned the bill for its provision of extraordinary discretionary power to the government of the day to determine the types of services to be provided and the circumstances under which they would be provided. This extraparliamentary authority for the government and the degree of intervention in health care provision would have been intolerable.
While the amendments will improve the bill greatly from our point of view, we believe there are still many areas of uncertainty that can now only be clarified through regulation. It is our view that the bill should not proceed to third reading until interested parties, including members of this committee, have had a chance to review any proposed regulations.
When the bill was first introduced in the House, the association had several major concerns with the scope and the powers of intervention that were being ascribed to cabinet. The amendments curtail these powers, and these changes stem from the new agreement between the province and the Ontario Medical Association. While the agreement addressed many major concerns, it also raised other hospital concerns relating to the restriction on the migration of physicians into the province. We are pleased to note that these issues have also been addressed in the amendments to this bill.
I would therefore like to comment today on three remaining aspects of the bill that continue to concern us, and they are: (1) eligible physicians, in subsection 2(3.1) of the bill and section 19.1 of the Health Insurance Act; (2) third-party services, in subsection 2(3.2) of the bill -- that is, sections 36.1 to 36.4 of the Health Insurance Act; and (3) the duty to report, in subsection 2(3.3) of the bill or sections 43.1 and 43.2 of the Health Insurance Act.
The first of these is the subject of eligible physicians. The proposed government amendments to the bill are essential in terms of satisfying our concerns in the area as they clarify the matters which will now be outlined below.
This section specifies the eligibility of physicians to bill the Ontario health insurance plan. The current concerns of hospitals have been satisfied by the definitions. There are appropriate protections for physicians who had accepted positions prior to the August 1, 1993, deadline but who have not yet taken up residence in Ontario. This is of particular importance in both the academic and the underserviced areas of the province.
The Ontario Hospital Association also supports the power of exemption provided for the Minister of Health. The ability to allow physicians access to the fee-for-service system where their service is required for academic medicine or specific specialties and geographic areas serves to make the legislation adaptable to the needs of the province. Coupled with the direct service contracts referred to in schedule 3A of the 1993 Interim Agreement on Economic Arrangements between the province and the Ontario Medical Association, there seems to be reasonable flexibility in the legislation to provide for the sensitive deployment of future medical human resources.
The second major item is third-party services, and this is perhaps the most difficult part of the bill to really understand. This series of amendments is complex, especially in relation to the existing Health Insurance Act. This section of the bill attempts to define the set of services that are to be paid by third parties, the definition of third parties, the circumstances under which third-party services arise, the payment mechanism and the appeal mechanisms.
The Health Insurance Act itself is a relatively complicated piece of legislation, when taken together with regulation 552. The Health Insurance Act sets out the operating characteristics of our health care system and, to a large degree, how we practice medicare here in Ontario.
Central to the act are the concepts of insured persons and insured services. These two concepts define who is eligible for services covered by the plan and what services an insured person is entitled to receive without payment. The act gives authority to the Lieutenant Governor in Council to prescribe the services that shall be deemed not to be insured services for the purposes of the act.
Bill 50 sets out the case for certain health services that are currently insured services to be uninsured services or, for clarity here, deinsured services. This section, taken together with the 1993 Interim Agreement on Economic Arrangements between the province and the Ontario Medical Association, makes clear that there will be a list of services that will no longer be insured under the Ontario health insurance plan. In future, these deinsured services will have to be paid for by the insured person or patient who requires such services.
The provisions set out in the bill could, however, give rise to confusion in the hospital setting that could cause some difficulty in practice and interpretation unless there are amendments to the bill or regulations that would make certain matters more obvious. For example, any proposed deinsured procedure in a hospital setting could involve one or more of the following: the services of a physician; application of a general anaesthetic; diagnostic testing -- as an example, blood work or X-rays or urinalysis or electrocardiograms etc; and surgery in an operating theatre, not abnormal procedures by any means.
Bill 50 makes it clear that the physician's services related to the procedure would be uninsured and thus billable to the patient. It is not clear to us, however, that the services provided by the hospital relating to the uninsured procedure presented above would also be billable directly to the patient by the hospital.
It's essential that the legislation make it clear that all the costs of the deinsured procedure would be uninsured and therefore borne by the patient. This would include the hospital and the other health care facility services. If this is what is envisioned, the necessary regulatory measures must also be established.
The third key area that concerns us is the one of duty to report. This section deals with the requirements to report to the general manager of the plan any cases where services have been or have attempted to be obtained in a fraudulent manner. While there is no indication of the definition of "prescribed persons" for the purposes of reporting, it is reasonable to assume that hospitals or hospital staff may be included in this list of "prescribed persons." One of the amendments tabled yesterday, we understand, now defines the circumstances under which there is a duty to report.
This is an important amendment which we can fully support. In many instances, cases will arise where there is apparently an inappropriate use of health cards. If there is an intention of designating either hospitals or hospital staff by regulation under this section of the bill, they should also be designated under subsection 11.1(2) of the Health Insurance Act for the purposes of taking possession of a health card voluntarily surrendered.
These are the comments of the Ontario Hospital Association on Bill 50. We would be pleased to answer any questions of the committee or provide clarifications on any of the points that we've raised above.
The Chair: Thank you very much. We begin questioning with Mrs O'Neill.
Mrs Yvonne O'Neill (Ottawa-Rideau): Thank you, Mr Harris. I would not hesitate to say that, as these hearings proceed, and I'm sure they are only beginning, you could submit further comments as you see things arising from the discussions we're having here, because we do realize you've had a very short time frame to put something together.
I have a couple of questions on third-party services, which we discussed rather extensively yesterday in the context of that particular meeting. I'm having some difficulty wondering why you have combined the deinsured services with third-party services. I have a lot of doubts about the third-party part of this bill, but I haven't yet thought in my mind, as you have, of combining it with the deinsured. Is there a reason you've lumped that together, first of all?
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Mr Peter Harris: I'd refer to Mr Sapsford for the logistics.
Mr Ron Sapsford: Ron Sapsford, Mr Chair. The reason we've lumped it under third party is that the section dealing with the deinsured lists or the ability of the Lieutenant Governor to make regulations is in that section of the bill. It seemed on plain reading that, whether third-party services as you would normally understand them or deinsured, the same process followed from the amendment, so our comments are based on both third party and the deinsured list, which was part of the same section.
Mrs O'Neill: I am quite concerned about the third-party services simply because, as you point out in your first paragraph, the bill "attempts to define"; not one of those things is defined. We are awaiting definition through regulation of each of the things you've highlighted and others. My real concern is the enforceability and the education that will be necessary if the third-party services are to proceed as the government mind thinks they will. Could you comment on that at all?
Mr Sapsford: I think this is our view, that this is where the regulations become increasingly important to understand the application of it. There are exceptions now in the Health Insurance Act, however, for certain third-party charges: Hospitals now have the ability under the reg to Bill 4, the provision of records related to insurance, third-party claims and so forth, so I think the principle is established in the legislation and the regulations. What we're not sure about is exactly what additional definitions may be applied to third-party uses.
Of the two, our major concern, however, is about the question of the deinsuring of services and to get clarification that when a service ceases to be insured, it's uninsured for the system as opposed to small segments of the system.
The Chair: We have Mr Hope and then Mrs Sullivan and then Mr Wilson.
Mr Hope: Mine is back to the one that we know what a closed practice is, I hope. I take it you're in full support, according to what I read in the definitions, of duty to report. You have no problem with the legislation in that sense.
Mr Peter Harris: No. The principle of reporting is one we support.
Mr Hope: I'm looking at it from the community I come from, and I used the closed-practice scenario because that's what most of them are; they know the people on a regular basis. The potential for this to occur is in the hospitals, which you say you have no problem with; you're going to be almost like the gatekeeper before it even gets to the doctor. When I went to the hospital, they do up the nice little cards for you and everything showing you've been to that hospital.
You have no problem with that. I just have a hard time understanding why the doctors are having a problem with the mechanism inside the legislation. I think it's becoming, unless it's just media hype, a serious problem, and I believe there's a way of doing it. I'm glad the hospital association is coming out in favour of it and I would expect my hospitals to do the same.
Mr Peter Harris: I think, first of all, the process of trying to separate wheat from chaff and the truth of how much is there or is not there is a very difficult question; how much actual fraud does exist. In order to try to analyse it, we're looking for some direction about whether hospital personnel are being included in those people who are being asked to confiscate cards. There is a definite logical flow, as you say, because you first of all deal with the administrative aspect when you present yourself at a hospital for a planned procedure, particularly other than the emerg, which is quite a different situation.
Mr Hope: Yes, because there's a way of verifying address and everything and the status, just through driver's licence, by whoever is the gatekeeper, and the hospitals are acting as a gatekeeper. I'm really having a hard time understanding why the group providing the services, some of them -- and I don't know the number and I wait, an interesting wait for the number of closed practices; we now clearly understand the definition of "closed practice." They know the family who are their patients very well. Hospitals I guess deal with those who don't have a family doctor; you deal with the flow of that and also whoever else comes in the door, and you have no problem with it.
I'm just trying to get clarification of this whole issue and trying to pinpoint it exactly: if there is fraud, how much there actually is and where it is occurring.
Mr Peter Harris: Those are open questions and they're bandied about. Depending on who's talking, they can make quite a radically different case for the degree of fraud that may or may not exist.
Back to your question about the hospital versus what we heard Dr Dickson talking about, the role of the physician is significantly different in the exercise from that of the hospital. I mentioned the differentiation between the clinical side and the administrative, and we see the hospitals, if that is the intent, performing a role to try to identify obvious cases where there are inappropriate uses of cards.
Mr Hope: But wouldn't it be the same responsibility as a staff person working in the doctor's office? They take the information that's coming in, the same as your hospital. It's just a larger-sized model, that's all: a doctor's office versus a hospital. You still have a staff person there taking the flow of information, verifying information, asking for proof of address or whatever it might be. There's just two different sizes; you're dealing with a hospital and a room.
It just puzzles me. If we're to truly narrow it down and do the fact-finding aspect, I think we all have to be partners in controlling this. I believe the mandatory process of doing it, because our responsibility is to everyone in this province, is the proper way.
Mr Peter Harris: I wouldn't quarrel with that thesis at all, because the exercise of trying to root out inappropriate use of the health system I think is in everybody's best interests.
Mrs Sullivan: This is an interesting presentation, although I understand you had difficulty to prepare it with such short notice to appear before the committee, particularly given that there were new amendments yesterday that changed amendments you already had received. I think that becomes problematic.
I note that you indicate that you fully support proposed amendments with respect to the duty to report; that that duty would be a mandatory obligation I assume is also supported. Therefore, my questions are going to be comparable to those I presented to the Ontario Medical Association.
What guidelines would your association provide to hospitals with respect to their staff having a mandatory obligation, whether it's nursing staff or other staff, to report instances of non-residents, and what guidelines would you suggest to them in terms of what would constitute reasonable grounds to believe that a person was non-resident?
Secondly, I also want to move into the next section of the bill that relates to voluntary reporting and inquire if your view is that this section is too broad as it's written, where any person may report on any matter dealing with the administration or enforcement of the Health Insurance Act and despite other acts, including the Public Hospitals Act, which require the confidentiality provisions to be respected.
The other issue with respect to mandatory reporting that I had hoped we would be able to get on the table with the OMA that has not been raised is that, to date, the mandatory reporting provisions appear to be directed to assumed consumer fraud and there has been no indication of reporting of what may be attributed to professional fraud. Indeed, we had examples before the public accounts committee that were suspected of being professional fraud; they turned out to be billing errors, although there may well be professional fraud in the system as well. I wonder if you could comment on the kinds of obligations to report what may be professional fraud under the voluntary reporting scenarios, or why reporting professional fraud should be left out of the mandatory reporting provisions.
By the way, welcome again, Mr Sapsford, to the other side of the table this time.
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Mr Sapsford: Thank you. The short answer to your question about guidelines is that I'm not sure. We would enter a process with hospitals and associations to develop those very guidelines, but presumably the guidelines would relate to verification procedures around address and age and the standard kinds of things that would identify a person with the information presented as part of the health card. I think the reason that shifting the health card and making changes there is important is that the health card itself will become a source of information that will help in the verification procedure.
It's not any one thing, but I think a program of activities taken together. If the legislation is passed in this form, it would require either through reg or through the work of the association with members to specify a reasonable form of guideline for hospitals to pursue. Again, the test in this is reasonable and probable grounds, so one could consider putting together some basic tests which could be used to verify those points.
The voluntary provision: I suppose if one is thinking about confidential information dealing with clinical information of a patient, yes, the way it is written is probably too wide. I think it's important, though, in all of these sections, to be clear about the intent of the statute. This section is directed at fraud, not about confidential patient information, so in the course of people's daily activities they may become aware of situations. I think it's important that reporting does not mean the investigation of it -- we read this as being clearly within the purview of the general manager of the plan to deal with the issue -- but rather to make information available. If you read it in a narrow term to do with the administration of the act as opposed to revealing information of a confidential clinical nature about patients, I think it becomes less intrusive.
Your third question about professional fraud: There are in the Health Insurance Act long sections about the Medical Review Committee, billing practices and so forth, and from our point of view, we would rely on those sections of the act for issues related to professional fraud, if you use that word. We viewed these sections to be dealing narrowly with persons who were purporting to be insured when in fact they weren't insured or who held a card that was not legitimately their health insurance card.
Mr Jim Wilson: Thank you, Mr Harris and Mr Sapsford, for your presentation. I think you raise a very good issue, which the OMA wouldn't touch: the delisting or deinsuring of services. It's an issue that I think should be the focus of this legislation. It was the focus of the legislation in its original draft. The government pulled out some of the more offensive clauses, and I think the public out there has an impression that we're off the hook with respect to deinsurance because the clause has been pulled out of Bill 50. One only has to look at exactly the point you raise, third-party services, which refers back to the Health Insurance Act, and those provisions in clause 45(1)(i) of the Health Insurance Act with respect to delistings, deinsuring: The process is still there.
We know from the OMA-government agreement that $20 million worth of services will be delisted in the very near future. It'll be done behind closed doors; no public input. I have to say very loudly and very clearly, I'm disappointed that the OMA, previous to you, did not raise this issue. I think they caved in on it.
Secondly, you at least raise it, although in my earlier years, not too long ago, the OHA used to defend medicare and universality and now we see medical groups and hospital sector groups not coming forward with strong statements on that. But let me not be too critical; you at least raise it. You raise it in I think somewhat of a selfish way, though. Your concern is, to put it in layman's terms -- and I don't blame you -- that these new deinsured services may occur in a hospital setting, and who pays the hospital? Let's put it in layman's terms because I'm not sure the people watching this across the province may have caught that in all this back and forth. It's a legitimate concern for your association; I understand that.
You mention that some of the future deinsured procedures that may be performed in the hospital setting could involve the services of a physician; application of a general anaesthetic; diagnostic testing -- for example, blood work, X-rays, urinalysis, electrocardiograms etc; and surgery in an operating theatre.
So my first question is, can you give us an example of a deinsured service that may be a surgical procedure that may have to occur in a hospital setting? You must have had something in mind when you wrote that down.
Mr Sapsford: An example?
Mr Jim Wilson: Yes.
Mr Sapsford: Not having the list, no, but presumably there will in future be services where anaesthetic services would be required. When an anaesthetic is required, one is thinking about an operating room.
Mr Jim Wilson: In vitro fertilization, circumcision, which is still considered an operation, I guess.
Mr Sapsford: Yes, could be. Some of the procedures could be offered, I suppose, in a physician's office and others in hospital. I think the question of the site will to a large extent depend upon what the service is in the first place, but secondly, where the services of a surgical suite are required, we want this to be clear that the services that are non-insured under the act in fact are billable.
The Chair: The parliamentary assistant wanted to make a clarification that fits in with this line of discussion.
Mr Wessenger: Ministry counsel would like to give a point of clarification.
Mr Williams: I think there's some confusion for the committee on deinsured and third-party services. There's presently in place, as you know, a regulation that lists what are not insured services for the purposes of billing the health insurance plan. Some of those many be third-party services; some of them may not, depending on the particular circumstances. The fact that they are uninsured doesn't necessarily mean they're a third-party service and they've been requested by a third party, so I think you've got to keep those two things completely separate. They tend to overlap a lot, that's perfectly true, but they're not necessarily one and the same thing.
Mr Jim Wilson: I think in the public mind they overlap a lot. The wording of these particular amendments to Bill 50 are highly suspicious, given that it's all going to be done by regulation. How do we know? We don't know what the OMA's list is; we don't know what the government's list is. All we know is that there's a figure and a time frame that says that $20 million of current services that are paid for by OHIP will be delisted. We don't know what they are. We don't know whether they'll be services that are frequently asked for by a third party. It disturbs me, counsel, and you're not part of the political process, but this section of the bill's been, "Well, that's just referring mainly to doctors' notes and that sort of thing."
The Ontario Hospital Association, I suggest, ought to know, and I'm sure it very intentionally put on page 4 here that surgery in an operating theatre -- given that we don't know what's going to be delisted, some surgeries may be deinsured, they may be requested by a third party or meet some of the other criteria here, and then they become third-party billings. If the parliamentary assistant -- he was going to make a point of clarification that didn't really clarify anything -- wants to tell us exactly what the government's intending to do in this area, what it's intending to deinsure, great, let's hear it. Then we'll decide whether these things are frequently asked for by third parties.
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Mr Wessenger: I think it should be made clear that, as I understand this, third-party situations have already been dealt with through regulation. They've already dealt with the instances where third-party items would not be insured items. That has been dealt with, and what is being dealt with here in Bill 50 is merely the question of transferring that liability to the third party as distinct from being on the patient, ultimately putting liability on the third party for some of those particular -- not all of them, but those that are prescribed by the regulations.
Mr Jim Wilson: Let's clarify that. You're referring to regulation 552 and its subsequent amendment of late last year, which specifies third-party services no longer covered by OHIP.
Mr Wessenger: Yes, that's correct.
Mr Jim Wilson: Okay. So you're telling us today, absolutely, that you're not going to amend regulation 552 and its subsequent amendment of late 1992, which was 758, I believe. You're telling us you're not going to do that, so the OHA missed the boat here when it talked about surgery because, as far as I know, surgery is not on the list at the moment. And we're totally crazy and you're never going to amend that regulation; it says right here you can amend that regulation. Why would you want the power to amend the regulation, which you have anyway any time you take it to cabinet?
Mr Wessenger: I don't think that assurance can be given for ever and ever with respect to a question of amendments. That regulation, I understand, deals only with third-party --
Mr Williams: Uninsured services.
Mr Wessenger: Well, it deals with uninsured services, so that could be --
Mr Jim Wilson: For the third-party uninsured services, you're trying to give us comfort by saying there's a regulation there that preceded this legislation. If you'd say to us emphatically that you're not going to touch it, you're not going to add any more services, third-party deinsured services, fine, end of issue -- for now. But I don't think you're prepared to say that.
Mr Wessenger: My understanding is that there's no intention at this time to --
Mr Jim Wilson: The other way around this is that you tell us what you're going to deinsure, the $20 million worth of deinsured services you've agreed to behind closed doors with the OMA, with no public consultation, and I'll drop the issue and we'll decide whether some of those will later be deemed third-party services.
Mr Wessenger: I'll be very happy to respond to that, because I think they're two separate issues.
Mr Jim Wilson: They're not two separate issues.
Mr Wessenger: If you would just listen, Mr Wilson, the issue of deinsured services is that two lists are going to be submitted by the Ministry of Health and the OMA. As you know, the process is for a panel to be established to consider those lists. There's a process so that panel is going to have public hearings to have input from the public with respect to that whole matter, and after the public hearings, then that panel will make a recommendation to the government. That's the process. It's an open, public process.
Mr Jim Wilson: But I think the point here is that on page 4 of the OHA presentation there's a new round of delistings coming. Some of those deinsured services may become subject to third-party billing. Some of those deinsured services may occur in a hospital setting and, rightly, they want to know on behalf of their members who's paying the hospital. It's pretty clear in this legislation that the physician's going to be reimbursed by the third party, but it's not clear who's going to reimburse the hospital.
Mr Wessenger: Maybe I'm misinterpreting what the brief said, and maybe the representatives from the Ontario Hospital Association can add to this, but the point that seemed to be made very clearly was the concern that a physician's services were being deinsured and it was not clear whether all the tests and services that went in relation to that procedure were covered by the deinsurance of the physician's services. I am advised that the ministry is reviewing this problem with respect to that question and is prepared to look at the situation to see if there are any amendments required to clarify the situation. I'll ask counsel, perhaps, to add to that.
Mr Williams: Just one other comment to make. I think we're confusing apples and oranges here. I'll give you a very good example: Take cosmetic surgery. Cosmetic surgery is not something that's requested by a third party; it's requested by the patient. If there are services like that that, after the public process is carried out and we determine which services will no longer be insured services because they are not medically necessary, a patient requests on his or her own behalf, I can't see personally -- I'm making a personal judgement here; I'm not making a political judgement -- why the patient requesting that service would not pay for it.
If the service is a service that in fact a third party is requiring the patient to undergo, then the third party would be liable, and that's the purpose of the motion: to ensure that, if the third party requests or requires that service of the patient, the third party pays and not the patient.
Mr Jim Wilson: I agree. Just a clarification, though. Your latter point -- I agree, but I think the point in the presentation was that the current wording of this section of Bill 50 doesn't assure us. My reading of it and I think the OHA's reading is that the hospital's going to get paid because it just deals with third-party reimbursement to the practitioner primarily. What are you doing about that? That's the crux of this section of the presentation, I believe.
Mr Williams: Yes. To reiterate what the parliamentary assistant has just stated earlier -- it got lost in the shuffle -- that's certainly an issue that we have been made aware of over the last several weeks and we are willing to work with the OHA to ensure that if we have to make a motion to amend that particular part of the bill, we'll do so.
The Chair: Mr Sapsford, if you would like to comment and then I'm afraid we're going to have to move on.
Mr Sapsford: I guess under section 36.1, the proposed section reads: "a third-party service is a service that...(b) is not an insured service..." according to the regs, and that's what raises the question then about services that may cease to be insured. Because the section goes on to talk about definitions and payment mechanisms and so forth, it's important from our point of view to understand the application.
We would argue that it applies more to just physicians for the reasons we've stated. That OHA is not here taking a position on the comprehensive mix of our health care system is a slightly different question; we're only concerned that what is insured and what is not insured in this legislation is crystal clear for all of us.
The Chair: Gentleman, thank you very much. I'm sure we could pursue some of these longer, but our time has run out. Thank you again for your presentation.
COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO
The Chair: I call upon the representatives of the College of Physicians and Surgeons of Ontario, if they would be good enough to come forward. Members of the committee have received a copy of your submission. Would you also be good enough just to introduce the members of the delegation.
Dr Michael Dixon: I'm Michael Dixon. I am the registrar of the college, and with me is Dr John Carlisle, the deputy registrar. Janet Ecker is the director of policy, research and analysis. Dr Carlisle is going to start off our presentation.
Dr John Carlisle: Thank you for having us today to discuss this issue on behalf of the college.
The college supports efforts to eliminate waste and abuse in the health care system and we welcome an opportunity to offer our views in support of such initiatives. However, we must draw to the attention of the committee that introducing new amendments at the 11th hour, as the government did yesterday, seriously hampers the ability of today's presenters to offer detailed and considered input.
Before making our comments today, I want to outline our role vis-à-vis the OMA's so that there is no confusion as to the purpose of our comments. The OMA represents the interests of physicians and negotiates on their behalf with the government on matters regarding remuneration. The college is not a party to, nor are we consulted on, these matters. Rather, our role is to set standards for licensure of physicians and to regulate their conduct in the public interest.
Our original concern over Bill 50 focused on requirements allowing the Minister of Health to determine by regulation how many services a particular patient could receive and under what conditions. Decisions regarding what medically necessary services are provided to a patient under specific conditions are the responsibility of that patient's physician. He or she is trained to make such judgements based on the patient's clinical condition and needs; ministry officials are not. We are therefore pleased to see that the government proposes to remove these requirements.
However, there is a second issue of concern in the proposed amendments to Bill 50. In the amendments, the ministry has spelled out a complex and potentially intrusive duty to report for physicians and other prescribed persons.
The need for a reporting requirement so that physicians could alert the ministry when patients were improperly receiving health services was first brought to our attention by the OMA in March. The impediment in any scheme of this kind is of course the ethical and legal obligation of a physician to maintain confidentiality surrounding his or her treatment of a patient.
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As members of the committee may be aware, the college was subsequently invited to present to the standing committee on public accounts on this matter. We told the committee that if the ministry creates a new reporting regime to achieve a socially acceptable objective, the prevention of misuse of the health care system, then the college believes that such a regime must (1) protect the core value of doctor-patient confidentiality, (2) be based on clear, understandable grounds for reporting so that both physicians and patients readily comprehend it, and (3) ensure that the reporting regime is structured to achieve this objective.
We have brought copies of the submission we made at that time so you can look at it. Many of those previous comments are still relevant to today's discussion.
Our main caution about a reporting requirement is that confidentiality between a doctor and a patient is and always has been one of the central and core values of medicine. The college feels strongly that the relationship of trust and confidence that doctors enjoy with their patients is central to the benefit that medicine is able to offer to those patients.
As we outlined in our previous submission, if a patient does not go to the doctor when he or she feels in need of medical care or does not feel free to communicate candidly with the doctor, even though it may be embarrassing to do so, then the effectiveness of the treatment is limited and certainly the effectiveness overall of our health care system is similarly limited. Requirements to report potentially interfere with and damage that relationship, to the detriment of the patient.
The current regulations under the Health Disciplines Act, now called the Drug and Pharmacies Regulation Act, and the soon-to-arise regulations under the Regulated Health Professions Act make it clear that the physician shall give no information concerning the condition of the patient or any services rendered to the patient to any person other than the patient without the consent of the patient unless the physician is required to do so by law. I may just add parenthetically that that section arises directly from the section of the Canadian Medical Association code of ethics, which says precisely the same thing.
We recommend that any reporting requirements should be clearly required by law in the relevant statute; in this case, the Health Insurance Act. The government has heeded our advice, but the manner in which this has been done, both in the first set of amendments to Bill 50 and in yesterday's revised motions, raises additional difficulties.
When the suggestion of a reporting requirement was first raised, the misuse of a health card was the event to be reported; in other words, the physician was to report if a patient attempted to obtain health care services by presenting a health card that had not been issued to him or her. In the first set of amendments, the requirement was expanded to include a broader category of reportable behaviour. The ministry has now changed that to focus on whether or not a patient is a resident. Doctors or others making a report are to do so if they have "reasonable grounds to believe" that this circumstance "may have occurred."
In our previous submission, the college expressed the concern that physicians and patients often do not understand the specific legal meaning of words like "fraud," "abuse" and "suspect," the terms first used to describe the reporting proposals. To illustrate our point, we used the example of physicians who call the college because they believe that fraud or abuse has been committed because a patient visited the emergency ward for a minor problem. In another example, you will recall that I told those of you who were here about a family doctor who had called me to tell me how reluctant senior citizens were to go back to the doctor as directed for fear of being perceived as having abused the system.
We recommended that the requirement to report be triggered by a very specific, easily identifiable circumstance, defined by words which could be clearly understood by the parties to the process. We specifically cautioned against a requirement for doctors to report patients they "suspect" have committed "fraud" or "abuse."
While the ministry has now removed the requirement that a report be made upon a suspicion, we believe that the phrase "may have occurred" raises a similar problem. The bill is asking people to report based on a suspicion that wrongdoing may have occurred. In fact, one could argue that the words "may have occurred" imply the mere possibility that potential misuse of the system has happened, raising the likelihood that a very large number of reports will have to be made on quite speculative grounds.
Our experience with other mandatory reporting schemes in medicine, for example, the Child and Family Services Act and the Highway Traffic Act, reinforces the need for a well-defined reporting requirement. Unless clear language is used and clear circumstances are described which trigger a report, physicians will be fearful of a new system.
If this occurs, they are likely to do one of two things: either avoid reporting, which will undermine the objective of the requirement, or overreport in circumstances where it is not reasonable or appropriate to do so.
The college's original suggestion, presented to the public accounts committee, was that the physician should be required to report when "he or she has reasonable and probable grounds to believe that a patient has submitted an OHIP card not issued for the patient," or words of a similar nature. This is an understandable principle which, with enhanced identification cards, would be something easily identified and understood by patients and doctors: "If you present somebody else's card to the doctor or hospital, you will be reported."
To the layperson, "reasonable and probable grounds to believe" implies some sense that the person making the report is doing so based on some objective fact or information that would generally be considered reasonable by others. The use of the words "may have occurred" implies that the reporter may judge the circumstances according to a more subjective view influenced by preconceived opinions and perceptions rather than the objective facts at hand. Patients should not be left wondering whether they will be reported or not based on the doctor's personal views of what constitutes abuse of the system.
We would respectfully ask the committee how they wish this reporting requirement to be implemented. A new patient walks into the doctor's office. What should cause the doctor to suspect that the person is not a resident? How does the physician then determine whether this person is a resident? Based on his or her belief that the patient obviously comes from another country? Should the doctor ask for proof of citizenship or immigration status before he or she accepts the person as a patient? We suggest that the ministry give careful consideration to our original proposal, which represents a more workable requirement.
Another necessary component of the reporting requirement is that it be mandatory. You will find that we raised this as well in our previous submission. We can understand the concerns about asking physicians to comply with yet another mandatory reporting scheme, but if there is to be reporting, it must be mandatory if it is to achieve the stated objective.
As I said earlier, under the current regulations, physicians shall give no information about the patient's condition or services provided without consent or unless required to do so by law. To be consistent with that regulation, the requirement to report misuse of the health care system, as defined by the ministry, must be a requirement of law.
The passage of an amendment to Bill 50 giving merely an option to report will have the legal effect of making reporting illegal. As I explained to the public accounts committee, because of the current regulations, in order to be allowed, reporting must be required and not merely permitted.
Making a report, even under a mandatory regime, can create a potentially difficult situation for the physician. Naturally, any patient who is reported by a physician as having been guilty of some wrongdoing and who is subsequently exonerated will be very angry and may wish to file a complaint with the college or launch a civil lawsuit alleging defamation of character and breach of confidence. We find that the college receives a number of complaints from patients about whom reports have been made under existing requirements for mandatory reporting. Even if the complaints committee agrees in the end that the physician was justified in the report, it can act as a significant deterrent to physicians from reporting. Without, therefore, a clearly defined legal obligation to report, many physicians may avoid doing so in order to protect themselves from having to defend their actions.
The ministry's proposal to protect from liability those who report on reasonable grounds will certainly be of some assistance in removing this disincentive in respect to certain kinds of civil actions. This of course will not protect from other kinds of civil actions or from having complaints made at the college, but it should be noted that a discretionary reporting regime is likely to increase complaints against physicians.
We would like to raise another concern about the proposed amendments which make the reporting requirement apply to prescribed and other persons, "even if the information reported is confidential or privileged and despite any act, regulation or other law prohibiting disclosure of the information."
As we have stated repeatedly, tampering with the confidentiality of the relationship between a doctor and a patient works to the detriment of patients, especially to patients who may be vulnerable. The effect of this amendment will be in effect to remove this protection granted to patients under confidentiality regulations under the Regulated Health Professions Act and other legislation: the Human Rights Code, the Public Hospitals Act, the Freedom of Information and Protection of Privacy Act and all sorts of things. It is difficult to justify the anticipated benefits of such a sweeping and potentially destructive reporting requirement when weighed against the possibility of undermining a core underpinning of the health care system's effectiveness.
The final point I wish to make today refers to the proposals to increase the size of the Medical Review Committee. As members will know, this committee has the mandate to review the billing practices of physicians brought to its attention by the ministry. The college administers this process on the behalf of the ministry.
The amendments propose to increase the size of this committee so that it will be able to handle an increased workload in a more efficient manner. The college is certainly prepared to accept this additional responsibility, consistent with the current provisions of providing resources to do so.
In conclusion, the college supports the government's efforts to minimize and prevent abuse of the health care system. We urge the ministry to take a cautious approach to avoid producing unintentional negative consequences which could undermine the government's objectives. On behalf of the college, thank you for inviting us to make this presentation.
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The Chair: Thank you very much for your submission. We'll move right to questions. Mr Wilson.
Mr Jim Wilson: Thank you, Dr Carlisle, for the presentation, and of course Dr Dixon and Ms Ecker. You raise a very good point where you give the scenario of a patient walking into the doctor's office, and you ask a very good question: What should cause the doctor to suspect that a person is not a resident? It's an excellent question.
The first thing that comes to mind is that doctors could get themselves in a lot of trouble and certainly be labelled racists if accent or colour of skin is something they're supposed to judge in whether you're a resident or non-resident; of course, we know that in our multicultural society that would be not only inappropriate but probably illegal. You're in a quandary, and I'm not really sure what the remedy is. I'm not totally clear, because you did go very quickly --
Dr Carlisle: I was trying to be merciful.
Mr Jim Wilson: -- and it is getting on in the day and we deal with a hundred issues a day, about what exactly you need to see changed in this legislation. You agree with mandatory reporting as the way that reporting is to be done, without any clear process or guidelines?
Dr Carlisle: If there's going to be reporting, in our view it's got to be mandatory. One way of looking at it is to look at the words which require the mandatory reporting. They talk about "reasonable and probable grounds" to believe that one of the triggering circumstances "may" have happened.
We have just looked at this since this morning so it's difficult to be definitive about it, but if the threshold is reasonable grounds to believe -- that is to say, if I heard it from somebody who's reasonably reliable -- but what I'm to believe is that something may have happened, it seems to me the word "may" implies the possibility that something has happened. It doesn't suggest that it's more likely than not; it doesn't suggest that it probably happened. It says it may have happened. I think we're in a real quandary.
If I'm to anticipate what I expect Mrs Sullivan may ask me about what guidelines will I give and what you've really asked as well, I think I have to say you have to report any circumstance where this may have happened or, alternatively, where it is not impossible that it has happened. That's a very low standard. If we get the kind of compulsive behaviour that several other deputants here today have alluded to, and I could certainly verify from my own experience that you will get some of this very compulsive reporting, then I expect a whole lot of people will get reported and perhaps the true instances will get lost in the chaff of huge numbers.
I don't know how you remedy that except that it seems to me you could do it in a couple of ways: First, you could be, as we've suggested, a little more precise about exactly what it is that's to be reported; second, you could put the standard of when the suspicion is to result in a report a little higher up the ladder. Instead of saying that it may have happened, you might choose the words that have been used in some other similar statutes, to say reasonable grounds to believe that it has happened or reasonable grounds to believe that it probably happened. All those things would push the standard up a little bit and reduce the anxiety level.
The other point I would make is that at some point the patients have to understand too what it is that will cause you to be reported. If I were a patient, particularly if I were a member of a visible minority, I might be concerned with this wording, that that alone might be considered enough by some people to raise the situation to a level where it is not impossible that I might be a person doing these acts.
Mr Jim Wilson: Thank you, Dr Carlisle, because I know you're both a physician and a lawyer. I'm going to ask the lawyers to hash it out here. Mr Wessenger, where did your sidekick go?
Mr Wessenger: Well, I will call Gilbert Sharpe, as he's here.
Mr Jim Wilson: While you're proceeding to the chair, Gilbert, on page 6, the suggestion the college made -- it says it's their original suggestion, and I do remember the public accounts committee hearing in which this was made -- was that the test be "reasonable and probable grounds to believe that a patient has submitted an OHIP card not issued to the patient." My question would be, why did the government reject that test?
Mr Wessenger: Maybe I'd better start off because Mr Sharpe, unfortunately, is not that familiar with the specific legislation. I think the point has been well raised that the standard is a lower threshold for reporting in Bill 50 than is suggested in the presentation by the college, that "he or she has reasonable and probable grounds to believe that the patient has submitted a health card not issued for the patient," or we'll say, "or used a card which the patient is not eligible to hold," for instance, if you wanted to give something similar.
Mr Jim Wilson: I understand that, but they want to up the standard.
Mr Wessenger: I think that's the point; that's right.
Mr Jim Wilson: I'm assuming this point has been made to the government, and I want to know why you rejected it. You've had a lot of time to think of Bill 50; you brought in amendments yesterday, you brought in amendments before that. Why did you reject the suggestion of the College of Physicians and Surgeons?
Mr Wessenger: I'll make an attempt and then I'll ask Mr Sharpe to follow up, as he's more the expert in the legal aspect than I am.
If the standard in the act is that you have to have reasonable grounds to believe, which in other words is that fraud, in effect, may have occurred -- so there are two aspects: reasonable grounds to believe and, if there are no reasonable grounds to believe, combined with "may have occurred," I would suggest that would require a presumption of a fair likelihood of a fraud occurring; it's not a mere speculative possibility.
I'll ask Mr Sharpe to elaborate on whether he would agree with my interpretation in that regard.
Mr Gilbert Sharpe: I tend to agree with the point made by Dr Carlisle. The thrust of a provision that uses the term "may" does potentially open it up very broadly. If the sense was that the ground should be it's likely that something happened or it's probable, then one would think you would use that language. We're into the realm of possibility now and you're quite correct.
On the one hand you've got reasonable grounds to believe, which is of course the standard objective test for reporting, but then on the other it's that a possibility of something occurred. If we're promoting that position, it would be that we want to err on the side of all possible frauds being reported and then being actively and aggressively investigated to determine whether in fact that happened. If you wanted to do anything more with a greater degree of certainty, as Dr Carlisle pointed out, one would simply say, "has reason to believe that the act occurred."
The Chair: Mr Sharpe, I neglected to ask you just at the beginning if you could identify yourself for Hansard.
Mr Sharpe: I'm the director of legal services at the Ministry of Health.
Dr Carlisle: If I may make a short reply, Mr Chairman, I think Mr Sharpe in his usual erudite way has made it clearer than I could that the concern we have is about the reasonable expectations of the parties, and that the reasonable expectations of the parties impact on the relationship between doctors and their patients, and that therefore anything which is as contingent as a mere possibility, with which we seem to be faced, is going to result in a very large number of mandatory reports.
Remember, if you don't report, there's a penalty. We're talking about a $5,000 fine, a conviction under a provincial offence and appearing before the discipline committee in that you committed a provincial offence in relation to the practice. We're not talking about a minor reprimand; we're talking about being found guilty of a substantial offence.
What you're going to get is all kinds of reports about people, based on what we called in our submission a "speculative ground," the mere possibility that they might have committed this offence which could, as you've suggested, Mr Wilson, involve the sorts of allegations which might well otherwise, if it weren't for the saving provision of this act, be contrary to the human rights act.
Mr Jim Wilson: correct me if I'm wrong, but CPSO is not involved in any heavy-duty way with the introduction of the health card system.
Dr Carlisle: No.
Mr Jim Wilson: Yet you're going to face, as you've just pointed out, the possibility of huge penalties for not reporting suspected or potential fraud. I'm not sure what words we're supposed to be using at this point. The Chair asked me to submit a quick question, so I'll save the preamble and just ask, do you think that's fair?
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Dr Carlisle: I don't suppose it's our place to say whether it's fair or not. What we're trying to say is that it may not be workable. We said at the beginning that we support the government's objective of trying to suppress health care fraud, so we're against anything which may turn out to be a big, unworkable system that gets everybody angry and achieves nothing. We perceive there's some danger of that happening in the regime that's been presented, so we'd like to find something that's more workable so we can make it work.
Mr Hope: I want to go back to your scenario of walking into the doctor's office. We understand what a closed practice is, right?
Dr Carlisle: I think it's one of those ones that have been abandoned by people who have left.
Mr Hope: No, a closed practice --
Laughter.
Mr Hope: In the scenario you used, and you used the word "reliability," I know with my own family doctor, it's no problem: just walk in there; he knows everyone. If I go to a hospital or a specialist I've never been to before, I have to fill out paperwork. You asked, do I have to prove citizenship? While I'm busy filling out the paperwork, I would say it doesn't hurt to check off one more block to say, "the information provided above is factual." That then removes the liability of individuals, because the person stated that the information provided to the doctor is factual. It removes liability. I'm not a lawyer, so I'll let you lawyers determine that one.
I'm sitting here listening to the hypothetical views, but I'm going to take it from somebody outside the system, the Ministry of Health and the doctors themselves. When I walk into a new hospital I've never been to, I'm asked to fill out all these forms. I'm asked to prove residence, date of birth, all that good stuff: "Are you entitled to a health card?" or coverage under OHIP or whatever you want to call it. If they check off yes, they've removed all liability.
As to reporting, if you have to provide evidence, that you've got a driver's licence, or you are a resident living here in the province of Ontario and you're entitled to it, you usually have to prove it. So what if I have to photocopy my birth certificate or something? It's not relating to the information of health care being provided. They use the card as currency.
Let me tell you, when I go to K mart and my Visa has been overdrawn, they're certainly going to either refuse to take my Visa card or else grab it and say, "Sorry, we're going to shred it for you right now." In order to narrow this so-called potential fraud that everybody thinks is occurring all over the place, to narrow the scope of it, I'm saying you ask the people to provide the information.
I just don't know where the problem is, why everybody is making it such an issue. So what, if you ask me for one more piece of documentation besides the other information I already have to provide to the specialist I go visit, the new hospital I go visit? I don't have to worry about my closed family doctor, because he already knows everything about me.
Dr Carlisle: Mr Hope, you make some very telling and useful points. They're the sorts of points that might be made by a number of members of the public who weren't familiar with some of the complexities of the issues we're dealing with.
You suggested, for example, that the patients could produce their driver's licence or their birth certificate. It's very interesting, because if we look at the requirements for eligibility under the plan and even the concept of residency, which, as you may know -- in fact, in the few hours we had available to us today to look at this, I tried to gather together a number of cases that deal with the definition of the word "residency." As you are probably aware, under the Income Tax Act, there are hundreds of cases in which lawyers and judges of the Supreme Court couldn't figure out whether people were resident or not.
You mentioned driver's licences. Well, I would ask again, does the possession of a driver's licence indicate that you're resident for the purposes of this act? It clearly does not. Does the possession of a Canadian birth certificate indicate that you're resident for the purposes of this act? It does not.
I asked the public accounts committee when I was last here what question you could ask. Suppose we had the staff from the ministry here today and said: "Okay, we're going to set up a counter here and we're going to have people come in and we're going to discover whether they're eligible for one of these cards." We've got about five to 10 minutes with each person, and neither of the parties is a lawyer. I suggested to the committee, and I stand by the proposition, that I cannot think of anything you could put down in a question that would establish whether somebody is eligible which would not contravene the Human Rights Code.
You made the point that your Visa card would be confiscated if it were overdrawn, and that raises an interesting question for me. Would it be reasonable for the doctor or for the hospital or for anybody else to say: "Because this person has an Ontario health insurance card, they must perforce be eligible to receive services?" Whether that's so or not depends entirely on the system that was used to distribute the cards.
If in fact we had the system that was used the last time that the cards were distributed, where we simply sent one to everyone who already had one, one could hardly rely upon the proposition that the patient had a card to demonstrate that the person was eligible to receive services. Similarly, if the thing had their picture on it, one couldn't be sure it had been issued to somebody who was eligible if there is no question you could ask the person in a reasonable period of time which would determine whether they're eligible.
The government, as far as I can tell, has made a major and commendable effort in setting up this new set of amendments to try to define something that's a little clear. At least it's clear that we're talking about whether a person is a resident and eligible, because the last set, upon which we prepared our original submission to you, which we haven't read today because of these changes, got the problem mixed up. You could have the problem of whether the person was resident and eligible, but you could easily have resident and eligible people getting mixed up in the words, that maybe they were attempting to receive services they weren't entitled to, like services that weren't medically necessary.
I'm very sympathetic to what you say, and it's very, very sensible. The trouble is that it's too complicated for that proposition.
Mr Hope: Let me throw it back at you, because some of the concerns are "probable cause" or "grounds to believe." Let me tell you, if you listed all those things off and if I don't have one of those documents, that's going to leave probable grounds. Let's face it, the doctor is not the one who does the intake information. It's the staff who do the intake information, the staff of either the doctor's office or of the hospital or the clinic.
You list all these documents, and if I only have a health card and I don't have any other pieces of documentation to support it, it definitely leaves possible grounds to suspect that this person is holding a health card without even being a resident of the province of Ontario. If he's got a couple of pieces, that filters through the system until somebody comes up with a foolproof system.
You mentioned the photo card or the photo ID, whether that would even work. What you have to do is start from square one, start doing 100% checking. I'd have no problem producing two or three pieces of identification, which you normally have to do under any other circumstances, which eliminates --
Interjection.
Mr Hope: I didn't interrupt you when you were shooting off, so just listen.
The Chair: Order, please.
Mr Hope: What you're doing is lowering the risk factor. I'm saying we have to start somewhere. Everybody is going to wait for the 100% check. A 100% check is not ever 100%, but what you're doing is allowing a mechanism to remove possibilities and to put to rest somewhat the concerns that some people have of probable grounds or whatever.
When you look at rural Ontario, it's not going to be as big an issue as it's going to be in the larger centres, because we know most of the people in our communities. The doctor in a town of 1,000 people knows who the people are. In Metro Toronto, it becomes a whole different story.
I'm looking at a way to start the process of removing the possibilities. If everybody is waiting for the perfect card to come out of the system -- I mean, they'll be a millionaire because they can now work on all the other cards that are out there, the feds and provincial government and everybody else, to try to streamline. I'm just looking at a way to begin the process, to narrow down, to find out where the problem actually exists, or even if it exists.
Dr Carlisle: I have a few comments to make about that. I'll invite counsel to comment on the question if the Chair will permit. I have sympathy for the view of people who don't every day deal in the court. We're talking here about a provincial offence. We're talking about proof. I doubt very much, subject to what counsel may say, that the mere fact that the person presents and has only a health card and nothing else would constitute reasonable and probable grounds to believe anything. In fact, anyone who took that approach would soon find himself charged with an offence under this act.
Secondly, I want to make clear that we've stated our position: We support this effort and we want to try to make it work. Mr Hope, you talk about having a perfect system; I just want a workable system. I don't think there will be a perfect system. What's been presented to us is not a workable system, and as a workable system it will be far from perfect. It will not only be imperfect, it will be a system that will produce a tremendous amount of trouble, for patients primarily but also for practitioners, without producing very much significant benefit for the system.
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Mrs Sullivan: I'm very interested in this presentation because I think it speaks to some of the issues we identified as problematic with these amendments. I am going to go back to the standard question, but it's not going to be the first one, while Gilbert Sharpe is here as well.
Why wouldn't the test for reporting be reasonable and probable grounds to believe that a person is not an insured person? "Insured person" is already identified in the act. I don't know if this is helpful: I was interested in your recommendation with respect to the definition not issued to the patient, but there are other aspects with respect to eligibility that may not be covered. Anyhow, I'm going to put that on the table just for interest.
On the question of the mandatory nature of the reporting, of course the OMA has come forward with one point of view and you have come forward with another. The Minister of Agriculture and Food learned to his horror that "mandatory" had a certain legal meaning, that there was a penalty attached and he was going to be left in the position of having to prosecute farmers for not contributing to a stable funding arrangement for agricultural organizations.
I was pleased that you have, as part of your presentation, included a discussion of the penalties, both the penalties under the Health Insurance Act, $5,000 when not otherwise specified, and the penalties which may involve disciplinary hearings before the college that would automatically follow a conviction under the Health Insurance Act. I think members should keep those in mind and understand that the reporting provision and its mandatory nature is a very serious and onerous duty on the person who is prescribed, whether it's a physician or other health care professional.
I am now going to go back to my original question and ask you this: If the bill proceeded in its current fashion, what would the college's role and direction be to physicians whom it licenses, how would the college handle disciplinary hearings, and what advice would you give to physicians and surgeons in Ontario with respect to how they should go about identifying a non-resident?
Dr Carlisle: There are about five questions embedded in there, and I'll try to deal with them in order.
We've explained, I hope adequately, why it is, in a mechanistic sense, having regard to the current legislation and that which will shortly take effect, why this has to be mandatory to be allowable. That's partly based in the law and partly based in the ethics, including the CMA code of ethics; as you know, the OMA is a constituent element of the CMA. It's clear that's the core value of the profession and it's also the regulation.
I think there's another feature we need to understand. It's been alluded to a little, but I'm going to try to pull it together. What forces motivate the doctor in favour of reporting or against reporting in a circumstance where it will clearly be uncomfortable at a personal level to report? On the one hand, we have the proposition that if you report, there is the substantial risk that even if it turns out to be a well-founded report, but certainly if it turns out be an unfounded report, that person will be very angry and will file a complaint.
You may be protected from some kind of lawsuits, that is, lawsuits that don't allege malice -- although you show me a person in this circumstance who will not file a suit that alleges malice and I'll show you a strange person. In any event, you're protected from suits that don't allege malice; you're not protected from other suits. You may be protected from an action in the discipline committee, if that's a "proceeding," but you're clearly not protected from a complaint, which is not a proceeding even under the Statutory Powers Procedure Act, so it's clearly not a procedure that would be covered by these words.
You're going to be complained about, so, if I may use a colloquialism, there's going to be a big hassle involved in reporting. I suggest that if there is not some countervailing force to that, some knowledge that you have a duty and an obligation to report, you can expect the reporting rate to be essentially nil. Again, I talk about what we'd like to have work. If you want it to work, I suggest that also moves in the direction of mandatory reporting.
In terms of the advice you say we would give, as I say, we've only seen this since this morning so obviously we haven't had occasion to look at it, but off the top of my head it seems to me we would have to say that, first, you must act on reasonable and probable grounds. That is to say, the information you have as to the occurrence of one of the enumerated events would have to be reasonable and probable, which is to say it would have to have come from a source that a reasonable person would think was reliable, that it could not be a mere rumour or overhearing somebody in the diner and maybe only hearing part of their conversation but not all of it; that would not be enough. It would have to come from a reasonable source.
But what are you reasonably to believe? You are apparently reasonably to believe that something may have happened. I look at the word "may" as a plain, ordinary citizen, look at what does "may" mean? To me, "may" means it's possible that that happened, so I think we would have to say to the physicians that they must report if they have reasonable and probable information that something might have happened; in other words, that it is not impossible that the person in question has done this act.
I suggest to you that that means, with virtually anybody who walks into the office who I don't know and who exhibits characteristics that I think might be very distasteful for some of us to consider, I would have to consider that it is at least possible that that person is committing one of these offences and therefore I'd be obliged to report. I think that in walk-in clinics and in emergency rooms you'd be looking at a report of a fair percentage of the people who walk in under this provision, so I think we'd have to tell members to do that.
In terms of what we would do in the event that there were failure to comply, as you know, under the current regulations and under the regulations proposed for the RHPA, it is an offence of misconduct to commit a provincial offence, to breach the laws of the province in respect of practice, so clearly, if it came to our attention that a person had been found guilty of such an offence, they would have to appear in front of the discipline committee charged with misconduct.
Generally speaking, we act on complaint. I expect we would receive plenty of them under this regime. If we failed to act on those complaints, as you know, the Health Disciplines Board has the authority to oblige us to act on them and I expect it would do its duty, so I think we would have a fair number of cases.
I believe most persons are familiar with the process, but there would be a hearing before the discipline committee, which would have the authority to impose a penalty ranging from reprimand to revocation of licence. I can't speculate about what the committee would do in these circumstances. I expect it would depend largely on the nature and circumstances in which the offence occurred. There could be circumstances where the sort of judgements exercised by the member were quite odious and unacceptable and it would attract a substantial penalty, and there could be circumstances where it would be viewed merely as almost an administrative oversight and might pose primarily a hassle factor -- a very substantial hassle factor.
We know from our experience with the Highway Traffic Act, for example, that any suggestion that there will be enforcement of these requirements in a very serious way results in a lot of compulsive reporting. I think I told the public accounts committee when I was last here that after the recent judgement in the courts which held two physicians liable for failure to report a man who had had seizures and subsequently went on to have a traffic accident and hurt another party very seriously -- in fact, I think the accident resulted in the death of the other party -- we had several physicians who insisted on reporting every patient they saw as potentially being unfit to drive a motor vehicle, for fear of being found liable under this legislation. I think you could reasonably expect, if this were to pass in its current form, a flurry of reports which might be quite monumental.
Mrs Sullivan: That discussion you have just had I think will be quite useful, particularly the illustration you've given from the Highway Traffic Act. I think the public accounts committee found that quite interesting when you presented it on an earlier occasion.
I wanted to turn to the Medical Review Committee, because we have not touched upon that at all in our discussions before the committee, and it's one of the few parts of the act that's not being changed. I wonder if you would explain to the committee and present any recommendations you have in terms of the resources you would require to expand the operations of the committee, expand the membership etc. The deputy minister, Mr Decter, in the estimates committee, I believe, but it may have been in public accounts, spoke very strongly about the role of the Medical Review Committee in dealing with a portion of fraud associated with professional fraud and counted on the MRC as being a major thrust in fraud control. I wonder if you could discuss some of the issues associated with the Medical Review Committee. None of that has been before this committee until now, and I suspect it probably won't be again, because you're the people who are most interested in it.
Dr Dixon: If I might start off that answer, the college becomes involved in medical review work, on referral by the general manager, of a physician's claims, a specific set of claims. The Medical Review Committee is obligated to review those claims, and there are certain criteria which the committee must use specified in the act.
The issue of fraud is not in the jurisdiction of the Medical Review Committee. If the general manager suspects that fraud has been committed, he refers this matter to other authorities to investigate and to prosecute as a criminal offence, so the matters which are referred to the Medical Review Committee have to do with issues about whether the correct billing codes were used, whether the services were medically necessary, things of that nature.
The committee currently is limited by statute in its size, and that is one of the problems in being able to deal efficiently with the referrals from the general manager. We welcome the expansion capability under the amendment which would give the committee several panels to work with that could work simultaneously. This is all predicated on the fact that we have the additional resources.
Unfortunately, the government has not seen fit to adjust the rate paid to members who worked on the Medical Review Committee since 1988, and we are having increasing difficulty in recruiting physicians who are prepared to spend the amount of time required, because they are now working on a rate which is five or six years old and there's no prospect of any increase at present. But be that as it may, we would hope we'd be able to continue with the work of the committee if the increased size were provided with additional resources as well.
Dr Carlisle: I'll just add a couple of words to that, if I may, Mr Chair. Dr Dixon has explained it very well, but I sensed as I was watching that there might be a misapprehension of the answer. It should be clear that while the general manager does not ordinarily refer matters to the Medical Review Committee where fraud is suspected and that where fraud is suspected the matters are sent directly to the police, that is not to say that matters are not referred to the Medical Review Committee where fraud is ultimately discovered. If that is the case, then the matter is again, through the appropriate channels, turned over to the police. The college does not prosecute fraud; the crown attorney prosecutes fraud. But I did not wish it to be the impression that no matters of fraud are dealt with. It's not dealt with when it is apprehended that there is a fraud; often we discover that there has been a fraud in the course.
Mrs Sullivan: I understand that part of the process. What I wanted to establish clearly was that the expectation of the deputy for the expanded role of the Medical Review Committee was that it attempt to deal with the fraud issue, which he attempted to convince us of, but it is in fact going to have to deal with a backlog created by other circumstances.
Dr Carlisle: Yes.
The Chair: Thank you very much. We are, as they say, at about 6 of the clock. I want to thank all of you for coming before the committee today and for your presentation.
Members of the committee, as you know, we will not be sitting next Monday, so we will reconvene on Tuesday, October 26. I suppose you could say we will be dealing with the health of the nation on Monday. We stand adjourned.
The committee adjourned at 1755.