Court to hear appeal on secrecy of top-billing docs
Physician groups get go-ahead to challenge lower court ruling to make names public
Ontario’s highest court will hear an appeal of a lower-court decision to end the secrecy surrounding the province’s highest-billing doctors.
The Ontario Court of Appeal said Wednesday it has granted leave to appeal to three groups of doctors who want to prevent the names of top-billing physicians from being made public.
The Star has been trying since 2014 to get the provincial government to release the names of the 100 top billers. The appeal will take this quest into its fifth year.
Last year, the province’s information and privacy commissioner (IPC) ordered the release of the names. The doctors sought a judicial review of the order, but in June, Ontario’s Divisional Court ruled against them.
Star lawyer Iris Fischer said the IPC and the Divisional Court have issued clear decisions affirming the public’s right to know how much government spends, including how much it pays doctors.
“Unfortunately, doctors continue to resist such disclosure. What has become a very expensive legal battle will now need to continue in order to get information the Star believes the public has a right to know,” she said.
The Star’s efforts to make physician-identified payment data public began with a freedom of information request to Ontario’s Health Ministry. The Star asked for the names, medical specialties and payment totals of the 100 top-billing doctors for the five most recent years available.
The Star has also asked the ministry to provide billing information for all Ontario doctors, but that request is on hold pending the outcome of the current case.
Payments to physicians are not the same as income, as they do not take into account expenses for office rent, staff salaries and supplies.
The ministry provided information on medical specialties and payments, but denied access to names, reasoning the release would be an unjustified invasion of privacy.
(The data provided showed ophthalmologists were the biggest billers, followed by diagnostic radiologists and then cardiologists.)
The Star successfully appealed that decision to the IPC. The Court of Appeal will now be the fourth body to weigh in on whether the public has a right to the information.
In dismissing the doctors’ application to quash the IPC’s order, the Divisional Court rejected their argument that the Star had failed to establish a proper rationale for disclosure. The argument ignored the well-established rationale that underlies access to information legislation, the court said.
The Divisional Court accepted the IPC’s finding that the names of doctors are not ‘personal information’
“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,” Justice Ian Nordheimer wrote on behalf of the three-judge panel.
The Divisional Court accepted the IPC’s finding that the names of doctors, in conjunction with the amounts they receive in OHIP payments and their medical specialties, are not “personal information.” The information is therefore not exempt from disclosure under the province’s Freedom of Information and Protection of Privacy Act.
The three groups of doctors include the Ontario Medical Association, a group that calls itself “Affected Third Party Doctors,” and another known as “Several Physicians Affected By the Order.”
Ontario lags behind other jurisdictions in making billings public. B.C., Manitoba and New Brunswick release the information annually. So does the U.S.
In August, the Star learned of a damage-control proposal by a top biller and other doctors to pre-empt the courts and release the data themselves to another news outlet in a bid to obtain more favourable coverage than they believe they might receive from the Star.
Doctors concocting the plan said are likely to lose an appeal so they should try to “minimize the damage.”