The Supreme Court of Canada will not hear an appeal from doctors who want to keep names of top OHIP billers secret.
The Ontario Medical Association and two small groups of doctors had sought to overturn a lower court ruling that granted the Star access to the names and OHIP payments of the top 100 billing physicians in the province.
The Supreme Court decision Thursday means the Ontario Ministry of Health must comply with a 2016 order from the Information and Privacy Commissioner of Ontario to release physician-identified billing data to the Star.
The ruling ends a five-year quest by the Star to get access to the information.
“We are very happy with this decision. The Star’s fight for the release of this information is not a fight against doctors, but for the public’s right to understand how their tax money is being spent,” said Star Editor Irene Gentle.
“That it took five years to get here is an example of why public service journalism is both expensive and important.”
In April 2014, the Star filed a freedom-of-information request to the health ministry, seeking names, medical specialities and OHIP payments of the top 100 billers in each of the past five years.
The ministry responded by releasing the payments and specialties for most of the physicians in question, but not their names. Disclosing names would be an “unjustified invasion of personal privacy,” the ministry reasoned.
The Star successfully appealed the ministry’s decision to the privacy commissioner.
The doctors then appealed the privacy commissioner’s order to the Ontario Divisional Court, but lost. They tried again with the Ontario Court of Appeal, but lost there too.
The Supreme Court’s decision brings an end to the legal battles.
“We are glad the Supreme Court didn’t see a need to revisit the well-reasoned decisions from the Ontario courts,” said Star lawyer Iris Fischer.
In ordering the release of the names, privacy commission adjudicator John Higgins wrote in his 2016 decision that they do not constitute “personal information” and do not qualify for the personal privacy exemption under Ontario’s Freedom of Information and Protection of Privacy Act. The names, in conjunction with payment amounts, relate to doctors in their professional or business capacities, he said, adding they do not reveal anything “inherently personal in nature.”
Higgins sided with the Star in finding that there is a “compelling public interest” in disclosure:
“I am aware that these payments do not reflect the physicians’ personal income, as they represent gross revenue that does not take overhead expenses or payments to other physicians or staff members into account. Nevertheless, it is an inescapable fact that these payments consume a substantial amount of the Ontario government’s budget, and regardless of the fact that the physicians are not public servants, these amounts reflect payments for public services provided to the public and paid for by taxpayers.”
Higgins added: “In my view, the concept of transparency, and in particular, the closely related goal of accountability, requires the identification of parties who receive substantial payments from the public purse, whether they are providing services to public bodies under contract or, as in this case, providing services to the public through their own business activities under an umbrella of public funding.”
At more than $12 billion, physician compensation accounts for about 10 per cent of the entire provincial budget.
The top 100 OHIP billers took in a combined $191 million in 2012-13, according to data supplied by the ministry. The highest biller alone, an ophthalmologist, claimed more than $6 million. The highest paid cardiologist claimed more than $3 million. Nineteen doctors received payments of more than $2 million each.
Among the top 100 billers that year were 27 ophthalmologists and 21 radiologists.
Physician compensation has been a major source of dispute in Ontario in recent years. It took intervention by an arbitration board to settle a contract dispute earlier this year between the province and OMA, which represents 31,500 practising doctors. The two sides had been at loggerheads for more than four years, unable to reach a negotiated settlement on their own.
Even within the profession, the battle over public dollars is ongoing as doctors try to work out how to divvy up the payment pie between medical specialties. An internal OMA report obtained by the Star last year found that some specialties are underpaid and others overpaid. It called for adjustments to be made.
Meantime, a recently formed “appropriateness working group” is endeavouring to eliminate or restrict inappropriate or overused physician services they estimate will be $100 million worth in 2019-20 and another $360 million worth the following year. In ordering the creation of the group, the arbitration board noted that the Canadian Institute for Health Information and Choosing Wisely Canada estimate as much as 30 per cent of medical services are unnecessary and inappropriate.
In addition to the OMA, two smaller physicians groups have been involved in the legal challenges. One goes by the name “Several Physicians Affected Directly by the Order” and the other is called “Affected Third Party Doctors.” Together, these two groups comprise 34 physicians, all of whom are top billers and male, and more than half of whom practise in the GTA. Approximately one-third are radiologists and another third are ophthalmologists.
In trying to get Higgins’ order quashed, lawyers for the doctors argued that the adjudicator erred in departing from previous decisions by the privacy commissioner on such matters.
Among the physicians’ additional arguments:
- The public would wrongly assume that OHIP payments and income are one in the same. They would fail to appreciate that doctors have overhead expenses for rent, equipment and staff salaries. Overhead payments vary widely and the exact amounts have been an ongoing source of dispute.
- Doctors are not public employees.
- “Doctors are different” because they do not have contracts with government like lawyers, consultants and other contractors do.
The Ontario Court of Appeal last year rejected all of the doctors’ arguments in a unanimous ruling.
The year before, the Ontario Divisional Court also sided with the Star in a unanimous ruling, which stated: “The rationale is that the public is entitled to information in the possession of their governments so that the public may, among other things, hold their governments accountable.”
The case is significant because the outcome could affect how much data on physician billings can be released in future. Pending the outcome of this case, the Information and Privacy Commissioner has put on hold another appeal by the Star, this one seeking the release of physician-identified billings for all Ontario doctors.
Other jurisdictions — including British Columbia, Manitoba, New Brunswick and the United States — already release such data annually.
And Ontario already makes public the names and salaries of public sector employees earning more than $100,000 in its annual Sunshine List.
Theresa Boyle is a Toronto-based reporter covering health. Follow her on Twitter: @theresaboyle or reach her at email@example.com