Well here we are. After ten months of posturing from the government and the OMA, we’ve reached the inevitable. Today, the OMA filed a challenge under the Canadian Charter of Rights and Freedoms against the Ontario government. The doctors of Ontario with no option but to take the government to court to achieve a binding dispute resolution mechanism.
Everything both sides have done to this point has been sadly predictable. The government was never going to back down from their arbitrary global cap. With the terms of the Representation Rights Agreement (RRA), they never needed to. The prospect of big clawbacks in April 2016 would have been difficult to justify to the public, so they elected to make interim cuts in October 2015 to attempt to mask the impact. They’ve taken the pound of financial flesh from Ontario physicians that they always planned to. During this time, the OMA has predictably objected to the unilateral cuts, and refused to provide the government with any input related to implementing the cuts. They have done their due diligence to ensure that a legal action will have its greatest chance of being successful, to the point that many members have criticized the general snail’s pace of action from the OMA.
But no one has any predictable moves left. The legal challenge has been filed. After months of clamouring for a legal challenge, where do we go from here?
I would gently point out to both the OMA and the government that neither can afford this dispute to last until the resolution of the legal challenge, years from now.
To the government: Be prepared for another 2.5 years until the next election with physicians pointing out every single flaw in our health care system. And putting those flaws squarely at the feet of government. Family medicine residents fleeing the province. Physicians retiring. What physician will come to a province where the medical association has taken the province to court? And every single complaint our patients have about wait times (which is an hourly event for some of us), we’ll happily tell them who is to blame. Physicians can be a terrific ally for any government, and a vocal enemy for a stubborn regime.
To the OMA: Quiet diplomacy has worked for many years during peacetime, but physician unrest continues to grow. You can’t place the future of bargaining solely at the feet of the result of the legal challenge. Patience is waning, and I can imagine that splinter groups will pick up further momentum as the court case drags along.
Neither side can afford to allow this debacle to continue for another few years. Both have ample incentive to come to an agreement. But both have political barriers they are finding difficult to overcome. For the government, it’s the financial constraints set by the Treasury Board and their golden ticket of the RRA. The don’t want to willingly give the OMA binding arbitration unless forced by a judge. They don’t want to spend a dime more than they’ve offered. The OMA cannot agree to any deal with the government that includes a firm cap on billings (cannot be held responsible for all increased utilization), nor a deal that doesn’t include binding arbitration with all future negotiations. Ontario MDs are insisting on those terms. But binding arbitration will eventually be granted to Ontario physicians, so rather than waste millions on legal costs on an inevitable result, is there a solution that gets the demands of both parties met?
As Deb Matthews said in the W5 documentary, “Now we have to think.”
Here’s my feeble attempt at a plan that may placate both parties. A lot of give and take, but better than the alternative of an indefinite stalemate. (No judging until you’ve read the entire proposal).
- The OMA and government agree to begin negotiations at the budget limits proposed by the government in their January 2015 unilateral action, with 1.25% yearly growth from 2015-2018. However, this will not be a strict cap, but will be a guideline. Both parties will agree to targeted elimination or reduction of low-value physician services that are agreed to have a high likelihood of meeting the government’s budget targets. These will be taken from the proposals provided to the ministry by each OMA medical specialty ahead of the 2014 provincial election. Other mechanisms may include FHO reform, continuing a portion of the current across-the-board cuts, and accountability measures that are mutually agreed upon. Both parties will agree that the plan has an equal likelihood of coming in over or under budget.
- Rationale for OMA: If they don’t agree to a plan with the government, the government will continue to unilaterally impose their will until the legal action is completed. Which may be years away. The OMA wants some sort of agreement now, but can’t take the political step of “agreeing to implement the cuts”. Physicians would revolt. This provides them a more politically-appealing method of moving forward.
- Rationale for government: They achieve an extremely high likelihood of achieving their fiscal targets, and even have a chance of coming in under budget. They also get the chance to reshape the Physicians’ Services Agreement, with many of the reform proposals they have wanted to implement for years. Keep in mind, they are implementing these proposals now already, and examples like the NGEP shows that they need physicians’ expertise, and we need to inform their decision-making.
2. Government agrees to grant the OMA a binding dispute resolution mechanism for the negotiations period that will lead to the contract that will begin April 1, 2018. A binding dispute resolution will be part of every future negotiations between the OMA and the MOHLTC.
- Rationale for OMA: Assuming these negotiations begin in late 2016 or early 2017, it will include a resolution mechanism, which is well before a legal case would typically be expected to conclude.
- Rationale for government: They will go into the 2018 election with a stable contract with physicians, and can present to voters that they have been fair to physicians, yet fiscally sound. They avoid the inevitable political fallout of going into an election with vocal physician opposition.
3. Government and OMA agree to urgently develop plan to address volatility of methadone maintenance programs, ensuring that patients achieve access to stable care that is not dependent on the financial situation of prescribing physicians or clinic owners. The program will reimburse physicians in a manner that rewards quality care, and provides no perverse incentive for over-testing.
- No rationale needed, I hope. These patients desperately need a solution. Everyone knows this.
The alternative to an agreement is another 2+ years of exactly what we’ve experienced over the past 10 months. It’s draining emotionally for physicians, and it’s draining the government of political capital.
My parting message to the OMA and the government: please be creative, understand the other’s position, and there may be a solution to be had somewhere in this mess. We need stability and predictability in our system. Right now, we have neither.