The public interest in binding arbitration for doctors

TheStar.com – Opinion/Commentary – The principle is reflected in the Canada Health Act and a landmark review of medicare.
March 15, 2017.   By HOWARD GOLDBLATT, STEVEN BARRETT

The view that the Ontario Medical Association’s commitment to a binding arbitration process for doctors is merely a disguised attempt to get pay increases for doctors is certainly not one shared by one of the founders of our modern publicly funded medicare system. Moreover, binding arbitration for physicians is supported by the treatment of other essential service providers in Ontario and by the experience of physicians in other provinces.

Justice Emmet Hall, in his landmark 1980 review of medicare, recognized the compelling justification for binding arbitration for physicians as a fundamental safeguard of fairness.

In his view, if doctors were to be prohibited from practicing outside of the publicly funded system, there had to be a fair and independent process for determining their compensation when working within the public system.

Justice Hall rejected any notion that government could unilaterally reduce or determine payments to doctors, characterizing it as “wrongful conscription” of physician services. He concluded that, if legislation is to prohibit doctors from opting out of medicare (or extra-billing), it must also provide that “when negotiations fail and an impasse occurs, the issues in dispute must be sent to binding arbitration.”

This principle was subsequently reflected in the 1984 Canada Health Act, which requires that, where a province bans extra-billing, only binding arbitration for physicians is deemed to meet the legislative requirement for reasonable physician compensation.

In both its editorials (Feb. 27) and columns (Bob Hepburn, March 9), the Toronto Star has blithely rejected this view.

Despite the fundamental and historic recognition that a binding arbitration process is a principled and necessary quid pro quo of our medicare system, it has been argued in the pages of this newspaper that government should not agree to arbitration for physicians, because this would result in unwarranted and unreasonable compensation increases for physicians.

However, contrary to this bald assertion, the experience in provinces where binding interest arbitration for physician compensation is in place — which happens to be the majority of other provinces — is that, where physicians are treated fairly and respectfully, they have proven themselves to be more than willing and responsible partners in working with government to improve the health care system. Moreover, the norm for negotiated or arbitrated outcomes has not been one of excessive fee increases.

No doubt a process of interest arbitration would prevent government from unilaterally cutting health care funding for physician services. But, as the Supreme Court of Canada has ruled, binding arbitration must be made available to essential service providers, whenever society concludes that disputes over their compensation or working conditions should not be resolved by strikes.

Significantly, this is already the case for all other essential service providers in Ontario (including hospital workers, police and firefighters). Indeed, unless we want to face the continuing prospect of physician job action or unilateral government action in each successive round of negotiations, the only way to resolve legitimate differences at the bargaining table is through a fair and independent binding arbitration process.

Notably, the Toronto Star has been even slower to recognize the compelling need for arbitration for physicians than the government itself. Last month, both Premier Wynne and Minister of Health Hoskins publicly expressed their joint “commitment to the principle of interest arbitration, and to negotiating an interest arbitration process as the first order of business when negotiations resume.”

While the OMA has welcomed this development, Ontario doctors are also painfully aware that, after several years of government intransigence and unilateral compensation cuts, there is no guarantee the government will follow through. And so, while the OMA expects government to return to the table and agree to a fair and independent binding arbitration process, it is also understandably planning for the possibility that it will not do so.

Despite the Toronto Star’s efforts to sensationalize the issue and draw a historically inaccurate comparison with the 1986 job action protesting the ban on extra-billing, the OMA has been clear that it would support job action only as a last resort, and only to secure a durable and lasting binding interest arbitration process — one intended to ensure physicians working within medicare will never have to resort to job action again. The OMA has also repeatedly emphasized that job action would never compromise access to essential and urgent medical care.

The last thing the OMA has wanted is for patients to be caught in the middle of its long-standing dispute with the government over the need for a fair and independent process for physicians. Hopefully, now that the government has accepted the principle of binding arbitration, the province and Ontario’s doctors can finally get on with the work of building the health care system that Ontarians deserve.

Howard Goldblatt is a founding partner of Goldblatt Partners and lead negotiator for the Ontario Medical Association. Steven Barrett is managing partner of Goldblatt Partners and co-counsel with Mr. Goldblatt.

https://www.thestar.com/opinion/commentary/2017/03/15/the-public-interest-in-binding-arbitration-for-doctors.html

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