OMA’s appeal to Supreme Court ill-advised, ill-fated

The primary role of the Ontario Medical Association is to represent the best interests of physicians. So in a way, it’s not surprising that the OMA said earlier this month it will appeal to the Supreme Court of Canada to overturn a lower court decision that makes the names of top OHIP billing doctors public.

But that doesn’t make what the OMA is doing right. In a much larger sense, it’s wrong.

Justifying its actions, the OMA says: “Physician billings constitute private, personal information. Privacy is an important and fundamental right in Canada that is protected by legislation and the Charter of Rights and Freedoms.”

That’s one interpretation. No question, making the names of top OHIP billers public does infringe to a point on their privacy. But what about the rights of Ontario citizens to know how their tax dollars are being spent?

OHIP is 100 per cent publicly funded. We would argue that being the case, citizens have a right to know who is getting money from OHIP, and how much.

Of course, the private sector is different, where compensation is a private matter between employer and employees. Doctors consider themselves to be in private business, which is fine, but the reality is that the vast majority of their income is paid for by taxpayers. We would argue that collective right to transparency and accountability trumps the right of top OHIP billers to unimpinged privacy.

That was the basis for the Toronto Star’s Freedom of Information request that started the OMA down this long road. The request was originally granted, and the OMA appealed twice — once to the Ontario Divisional Court and then to Ontario’s Court of Appeal. It lost both times.

The OMA’s argument is deeply flawed in other ways. It argues only the provincial legislature has the power to reveal OHIP billings. So it’s fine for the government to release the information, but it’s not fine for the release to come from Freedom-of-Information legislation, which is designed for just this purpose?

Another false construct: Reporting the billings without context could provide an incomplete misleading picture of physician pay structure.

First, this assumes that most people don’t know OHIP billings go toward a physician’s gross compensation — net income is that figure minus all expenses. But most people already understand that.

And in any case, if it is so concerned, let the OMA launch a public education campaign when the billings become public to make it clear OHIP billings are only part of the picture. Tell citizens, on average, what percentage of gross physician salary is lost to expenses like offices, staff, training, etc.

And if OHIP billings don’t constitute all physician income, where is the privacy invasion in making them public? No one is asking to see 100 per cent of doctors’ income, just the portion that is publicly funded.

The OMA’s arguments on this have never added up. It’s their right to make the case and to ask the top court to intervene. But it’s not smart strategy.

The association would be wiser to agree to the release and ensure it comes out in a fair and contextual way. This is public money and citizens have a right to know how it is being spent.

Eventually that will happen. The OMA would be wise to be proactive rather than reactive on this issue.

We would argue that collective right to transparency and accountability trumps the right of top OHIP billers to unimpinged privacy.