The province has rejected a proposal by doctors for binding dispute resolution, leaving the profession with little choice but to look at legal action, warns the president of the Ontario Medical Association.
A prominent labour lawyer says the province might want to reconsider its “ham-fisted” approach to the ongoing dispute over fee cuts, not only because the OMA has a “respectable” legal case, but also because doctors’ support for medicare could be jeopardized.
OMA president Dr. Michael Toth said his organization learned Friday that the government is unwilling to take the dispute to binding mediation-arbitration.
“While the OMA had hoped that the government would have accepted our request … we have been left with no other option and are compelled to act in the best interests of our patients,” he said in a written statement.
“Driven by our responsibility to protect the quality, patient-focused care that Ontarians deserve, Ontario’s doctors are now actively exploring all legal options available to us,” he added.
The Toronto Star was unable to confirm with anyone in government on Saturday whether it had flat-out refused binding mediation-arbitration the previous day.
Labour lawyer and constitutional expert Steven Barrett said the OMA could make some sound legal arguments, should it go ahead with a court challenge.
It could argue that the Canada Health Act contemplates that physicians should be entitled to some independent process to determine compensation, given that they are prohibited from extra-billing and practising outside the publicly funded system, he said.
As well, he said doctors have a “respectable, legal constitutional argument” because of a recent Supreme Court ruling that “essential” public sector workers who cannot strike have the right to independent arbitration.
Physicians should have the same freedom-of-association protection, Barrett said, acknowledging that while they are not government employees and not “essential” workers, regulatory constraints nevertheless make it difficult for them to strike.
“(Mediation-arbitration) is a legitimate request of physicians, given that they are limited to practising within the public health system and that other essential workers (such as nurses) have some form of arbitration,” he said.
Barrett, a partner with Goldblatt Partners, has no current involvement with the OMA, but helped his firm represent the association in the early ’90s. He frequently opines on OMA-government relations in the online health policy magazine HealthyDebate.ca.
The dispute was sparked when the province unilaterally chopped all fees charged by doctors by 1.3 per cent in September. This was on top of a 2.65 per cent across-the-board cut in February. There have also been fee cuts targeted at different specialties, and taken together they add up to 6.9 per cent in cuts, according to the OMA.
The government cut fees because it is trying to cap the annual physician services budget at $11.6 billion.
Doctors argue that they are charging beyond the cap because they are doing more work by treating a growing and aging population.
The government contends the physician services budget was set taking demographic changes into account. As well, it argues that a negotiating framework created at the insistence of the OMA allowed it to take unilateral action.
Barrett warned that if physicians become disaffected, their support for Ontario’s single-payer medicare system may erode.
“It’s imprudent in the medium and short term (for government) to act in such a ham-fisted manner in dictating physician compensation,” he said, adding that doctors may agitate for changes such as practising outside the single-payer system and extra billing.
Barrett said the government’s “obsessive focus on its fiscal position” is blinding it to the fact that it needs doctors onside to make needed structural reforms to the health system.
A written statement from Health Minister Eric Hoskins, provided to the Star on Friday evening, said it’s important to stay within allotted budgets so that there will be enough money to expand home and community care.
He said that, to date, the OMA has refused to offer its view on how best to manage the $11.6 billion budgeted for doctors. Hoskins said he wants to meet with Toth in the near future to discuss how government funding can be used to “put patients first and to ensure the sustainability of health care.”
Hoskins pointed out that a recent report from the Canadian Institute for Health Information showed that Ontario doctors are the best paid in the country, earning $368,000 a year on average, before expenses.
There are significant disparities in how much the different specialties earn. For example, family physicians typically earn much less than that average, while ophthalmologists, radiologists, cardiologists and nephrologists typically earn much more.