Law & Governance

Law & Governance November -0001 : 0-0

Bill 8, The Commitment to the Future of Medicare Act, 2003: Thoughts & Concerns

Michael Watts, Kathy O'Brien, Megan Evans and Patricia North


Bill 8 is an important and complex piece of proposed legislation; it both amends and repeals existing legislation. It could change the landscape of Ontario's hospital sector, as we know it. We have had the opportunity to conduct a detailed legal analysis of the Bill and wish to share with you some of our thoughts - and especially our concerns on how the Bill impacts hospitals. This is not a detailed summary of the Bill (we can provide that to you separately).

Part I - Ontario Health Quality Council

Part I of Bill 8 establishes the Ontario Health Quality Council. The Council is mandated to monitor the health care system and report annually to the Minister on its state. Bill 8 specifically prohibits board members and senior staff members of a health system organization from being members of the Council
  • Which hospital employees constitute "senior staff"?
  • How will the hospital sector perspectives (its board and administration) be represented on - or conveyed to - the Council, so that the hospital sector's voice is heard by the Council?
  • Why are the Council's powers limited to reporting "on the state of the health system in Ontario" - shouldn't the Council have the ability to make recommendations based on the information it has collected and reviewed?
  • How can the members of the Council be protected from political interference, so that their reports are truly independent from government?

Part II - Accessibility

Part II of the Bill restricts payment for the rendering of insured services to payments made either by OHIP, in accordance with an agreement under s.2(2) of the Health Insurance Act, or as permitted by regulation, and prohibit physicians from charging or accepting payment for rendering an insured service which is more than the amount payable under OHIP.
  • Does Part II essentially prohibit hospitals from - for example - paying hospitalists or physicians providing on-call services? How does Part II interact with the current provisions of the Health Insurance Act, which allow physicians to direct their OHIP payments to a hospital? This requires clarification.
  • Part II also prohibits a person or an entity from charging or accepting a payment or a benefit for conferring upon an insured person preference in obtaining access to an insured service. In practice, it may be very difficult for a hospital to monitor this, and we recommend the inclusion of a "due diligence defence" to protect the hospital where - despite its best efforts - a hospital employee or health care professional violates the law.

Part III - Accountability

Part III of Bill 8 seeks to tighten the reins the Minister has over "health resource providers", including hospitals, and gives the Minister powers which may substantially interfere with the governance and management of hospitals. It may also render irrelevant the existence of voluntary hospital boards in Ontario.
  • By putting in place mechanisms to have the hospital's CEO report to both the Minister and the Board, and by granting the Minister the right to unilaterally alter the CEO's agreement, the Minister is interfering with a fundamental principle of corporate governance. Who will ultimately direct the CEO - the hospital board or the Minister? What role will the hospital board have if the Minister is directing the CEO?
  • There are many aspects of Part III that are either ambiguous or that are left to be prescribed by regulation. Does the Ministry intend to use Bill 8 to require other hospital executives (CFOs, COOs) and/or medical staff officers (chief of staff, chiefs of department, president of the medical staff association) to enter into accountability agreements and be subject to Ministry issued compliance directives? And how will this impact on the ability of hospitals to recruit physicians into leadership positions within the hospital?
  • Why doesn't Bill 8 require that any compliance directive issued by the Minister must be "in the public interest" - as required when a supervisor is appointed or when "directions" are issued under the Public Hospitals Act?
  • The proposed Minister's powers to "materially" change a "person's" terms of employment should be deleted. The Minister should not be entitled to interfere with existing contractual arrangements. Given that many hospital executives pensions may be fully vested, any proposed use of such powers may also result in an exodus of the industry's senior leadership and may have a significant impact on hospitals' abilities to recruit and retain qualified individuals to fill vacant executive positions.
  • The penalty provisions of the Bill are inconsistent with the principle embodied in the Public Hospitals Act - that volunteer board members should not be held liable or be subject to actions if they are acting in "good faith".

Part IV - Health Insurance Act Amendments

Part IV would add provisions to the Health Insurance Act allowing the Minister, upon the advice of the General Manager and where the Minister considers it in the public interest, to amend the OMA schedule of fees in any manner the Minister considers appropriate. Currently, the Health Insurance Act provides that revisions to the schedule must be proposed by the OMA, not the Minister.
  • Why is there not a requirement for hospitals to be consulted with respect to changes to the schedule of fees which may affect them (similar to the requirement in the proposed Bill 31, Health Information Protection Act that there be public consultation before regulations are made)?


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