Bind­ing ar­bi­tra­tion the only rea­son­able op­tion

The Compass - - OPINION -

Dear Ed­i­tor,

On March 19 the New­found­land and Labrador Med­i­cal As­so­ci­a­tion (NLMA) called on Premier Danny Wil­liams to re­fer ne­go­ti­a­tions for a new agree­ment be­tween the prov­ince’s doc­tors and gov­ern­ment to bind­ing ar­bi­tra­tion.

The premier promptly dis­missed this pos­si­bil­ity, stat­ing: “un­der no cir­cum­stances are we pre­pared to send this mat­ter to bind­ing ar­bi­tra­tion.”

De­spite Mr. Wil­liams’ edict, the NLMA is not aban­don­ing our po­si­tion. We be­lieve ar­bi­tra­tion is en­tirely jus­ti­fied and in the best in­ter­est of not only the prov­ince’s doc­tors, but the pub­lic as well.

The NLMA and gov­ern­ment are not the only stake­hold­ers in this seem­ingly end­less ne­go­ti­a­tion. Ev­ery sin­gle res­i­dent in this prov­ince has a ma­jor in­ter­est in the out­come be­cause at some point, with very few ex­cep­tions, each of us will come to de­pend on the med­i­cal care sys­tem for help. We must be sure the ser­vices we re­quire will be there for us in a sat­is­fac­tory and se­cure way to­day and in the fu­ture. We be­lieve that it is crit­i­cal for ev­ery res­i­dent to draw their own con­clu­sions about what is best for them. This should oc­cur based on the real med­i­cal care chal­lenges we face and not gov­ern­ment’s con­jec­ture, doc­tor bash­ing or con­spir­acy the­o­ries.

The cur­rent dead­lock gives rise to a num­ber of ques­tions that de­serve an­swers. Why is the NLMA call­ing for bind­ing ar­bi­tra­tion? How would bind­ing ar­bi­tra­tion work? Why is ar­bi­tra­tion in the pub­lic’s best in­ter­est? Does the gov­ern­ment have the le­gal or moral au­thor­ity to refuse the NLMA if ar­bi­tra­tion is in the pub­lic’s best in­ter­est?

In or­der for ne­go­ti­a­tions be­tween any two par­ties to be suc­cess­ful there needs to be mu­tual trust, re­spect and con­fi­dence. Un­for­tu­nately, the NLMA ex­pe­ri­ence over the last 15 months has eroded our faith in reach­ing a fair and mean­ing­ful out­come. A brief re­view of some of the re­cent de­vel­op­ments ex­plains why the NLMA has lost con­fi­dence in the process.

On March 17, the premier de­scribed the NLMA’s writ­ten pro­posal of March 3 with the fol­low­ing state­ment: “ Through the roof, not af­ford­able, can’t be dealt with, can’t be sat­is­fied, can’t be an­swered.” With those mere 15 words the premier snuffed out 15 months of what the NLMA was led to be­lieve were gen­uine ne­go­ti­a­tions. He has al­ready made up his mind and de­clared pub­licly, in no un­cer­tain terms, that the NLMA pro­pos­als were worth­less. He hap­pens to also have the fi­nal word on the gov­ern­ment’s level of sup­port for med­i­cal ser­vices in our prov­ince. To make mat­ters worse, the NLMA was in­formed of the gov­ern­ment po­si­tion through the me­dia rather than di­rectly, vi­o­lat­ing the very con­di­tions of con­fi­den­tial­ity that the NLMA was asked by gov­ern­ment to ob­serve. This was not the only such vi­o­la­tion by gov­ern­ment - the same be­trayal had occurred pre­vi­ously in the spring of 2008.

When the premier de­cided to scold the doc­tors in the St. John’s lab he ref­er­enced the fact that they earned a $350,000 salary and in the same breath un­leashed his judg­ment of the so-called “over the moon” NLMA pro­posal. This left the im­pres­sion that all salar­ied physi­cians earn the same money, have un­rea­son­able ex­pec­ta­tions and are un­de­serv­ing. In fact, the vast ma­jor­ity of salar­ied physi­cians ac­tu­ally earn about half that amount (be­tween $ 150,000 and $ 180,000). More­over, the ar­range­ments for those cur­rently re­ceiv­ing the $350,000 were made di­rectly by then Min­is­ter of Health Ross Wise­man to in­di­vid­ual physi­cians. Th­ese ar­range­ments were not ne­go­ti­ated with the NLMA. This can be sub­stan­ti­ated by a re­view of the most re­cent agree­ment, which makes no ref­er­ence at all to the $350,000 the premier speaks of.

The NLMA has been clear from the very beginning that our fo­cus is on the func­tion­al­ity of the med­i­cal care sys­tem in con­trast to gov­ern­ment’s fo­cus on pat­terned bar­gain­ing. Doc­tors want a med­i­cal work­force that is ad­e­quate and a work­ing en­vi­ron­ment that is sta­ble to en­able safe and timely med­i­cal care. That re­quires fair and com­pet­i­tive com­pen­sa­tion. It also re­quires a gov­ern­ment that ac­tu­ally lis­tens to what doc­tors have to say. More than six weeks have now passed since our pro­posal was trans­mit­ted to the gov­ern­ment and still there is no sub­stan­tive re­ply, only the pre- mier’s wan­ton as­sail­ing of the prov­ince’s doc­tors. Our pro­pos­als are now out there for every­one to ex­am­ine for them­selves. They are fo­cused on iden­ti­fy­ing and solv­ing prob­lems, they are pre­sented in a con­cil­ia­tory tone open to com­pro­mise and call­ing for an on-go­ing col­lab­o­ra­tive ap­proach - cer­tainly un­de­serv­ing of the re­pu­di­a­tion we re­ceived.

Gov­ern­ment seems to be treat­ing th­ese ne­go­ti­a­tions as a con­test that they have to win at all costs. Beat­ing the doc­tors into sub­mis­sion will give the gov­ern­ment noth­ing but a hol­low victory and will jeop­ar­dize our med­i­cal ser­vices for years to come. Af­ter all is said and done, do we want the physi­cians in this prov­ince feel­ing un­der­val­ued, bruised, de­mor­al­ized and un­fairly treated? Be­cause that is ex­actly how they feel to­day. Is this the kind of en­vi­ron­ment that will keep doc­tors here and at­tract new ones to our prov­ince? Is this the way to build and main­tain a sta­ble and ef­fec­tive med­i­cal care sys­tem? If the past 15 months have re­sulted in paral­y­sis and ac­ri­mony, isn’t it time to try some­thing dif­fer­ent? The doc­tors feel that bind­ing ar­bi­tra­tion is the best al­ter­na­tive.

The NLMA’s po­si­tion on ar­bi­tra­tion flows from Sec­tion 12 of the Canada Health Act. In or­der for prov­inces to re­ceive fed­eral fund­ing for in­sured med­i­cal ser­vices, they “must pro­vide for rea­son­able com­pen­sa­tion for all in­sured health ser­vices ren­dered by med­i­cal prac­ti­tion­ers” [ 12.( 1)(c)]. The re­quire­ment for rea­son­able com­pen­sa­tion is deemed to have been com­plied with, if the pro­vin­cial gov­ern­ment en­ters into an agree­ment with an or­ga­ni­za­tion rep­re­sent­ing the med­i­cal prac­ti­tion­ers. The agree­ment must pro­vide ar­range­ments for ne­go­ti­at­ing com­pen­sa­tion and for set­tling dis­putes. More specif­i­cally, Sec­tion 12(2)( b) states: “ for the set­tle­ment of dis­putes re­lat­ing to com­pen­sa­tion through, at the op­tion of the ap­pro­pri­ate pro­vin­cial or­ga­ni­za­tions.... con­cil­i­a­tion or bind­ing ar­bi­tra­tion by a panel that is equally rep­re­sen­ta­tive of the pro­vin­cial or­ga­ni­za­tions and the prov­ince and has an in­de­pen­dent chair­man.” The pro­vin­cial gov­ern­ment still re­tains the op­tion of over-rul­ing the panel by Act of the leg­is­la­ture.

The ar­bi­tra­tion process de­scribed above is not un­prece­dented in our prov­ince. In 2002, this process suc­cess­fully re­solved the im­passe be­tween doc­tors and the for­mer gov­ern­ment. It is an ob­jec­tive and neu­tral process by which awards are de­ter­mined on the mer­its of the cases put for­ward by the par­ties. Surely any fair-minded per­son who wants to see a timely end to this oth­er­wise stagnant ne­go­ti­a­tion and put the fu­ture of med­i­cal ser­vices on the right track will un­der­stand why ar­bi­tra­tion is the only rea­son­able way to go. And the gov­ern­ment should ac­cept bind­ing ar­bi­tra­tion, not be­cause they are com­pelled to but be­cause it is the right thing to do.

Robert Rit­ter Ex­ec­u­tive Di­rec­tor

NLMA

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