Physician Billings Are Not Personal Information in Ontario

Canada’s unique health care system, which is publicly funded but largely privately administered, is one of the most important political and public policy issues in our society.

Negotiations between physicians and the government in Ontario in past years has been strained, with the parties unable to achieve an agreement on Jan. 15, 2015. In the years that have followed, there has been greater scrutiny of these negotiations, especially by members of the public who are concerned about the effect on patient care. Ontario spends $11.6 billion on compensation to doctors, $7.9 billion of which is fee-for-service under the Ontario Health Insurance Plan.

The Canadian Medical Association Journal (CMAJ) described some of the unique features of the relationship between the government and physicians,

“The negotiations are always tough,” says Kevin McNamara, former deputy minister of health for Nova Scotia. “But it’s very hard to compare province to province because of all the different variables.”

The negotiations are also unique, unlike those between governments and teachers or other public servants, because physicians are a unique professional group. They enjoy higher levels of status, respect, trust, expertise and autonomy than most other professionals.

Their services are vital, often complex and in ever-increasing demand. They receive far better pay than the average Canadian worker, and the public, in general, believes they deserve to be well compensated. The way they are paid is also unique. Most often, doctors earn their living from fees for services rendered — they are contracted, not employed, by the government — whereas the vast majority of working Canadians receive wages or salaries.

“Doctors belong to the only profession I know of where you can graduate from university, set up a practice, see as many patients as you want as often as you want, and send the bill to somebody and be guaranteed payment,” says McNamara.

One of the ways in which the public evaluates this unique relationship with physicians is through analysis of physician compensation. In Manitoba and British Colombia, legislation requires the disclosure of physician-identified billing data. In Ontario however, this information has not been provided, except for where a physician is directly employed by a hospital and are covered by the Public Sector Salary Disclosure Act.

As a result of the negotiations in Ontario, newspapers in the province began requesting information on physician-identified billings in 2014 for the years of 2008-2012 under the Freedom of Information and Protection of Privacy Act (FIPPA), which the Ministry of Health and Long-Term Care and physician groups opposed.

Journalists sought the top dollar amounts billed by the highest 100 physician billers, but the Ministry provided only the top fee-for-service payments for these physicians. The amounts billed by a physician are not necessarily the same amount that is paid to them by the Ministry. The position was that provision of billing information would potentially have the ability to identify the physicians involved, and would therefore constitute personal information.

The matter was then appealed to the Information and Privacy Commissioner of Ontario, citing in part the public interest override under the Act, and a decision was released on June 1, 2016. Although s. 38 of the Health Insurance Act, provides for confidentiality around payment for services, this section is still subject to FIPPA, and explicitly references it.

The adjudicator ruled that the record requested did not contain personal information, there was no evidence that third-party harms would occur from the disclosure. Even if either of these existed, the public interest override would apply.

The definition of “personal information” under s. 2(1) of the Act distinguishes between an individual’s personal and professional capacity. In some circumstances, information about a person in a professional capacity will not be considered to be “about the individual” under this definition.

He relied upon the 2-part test in Order PO-2225; Ontario (Rental Housing Tribunal), [2004] O.I.P.C. No. 8.:

  1. in what context do the names of the individuals appear
  2. is there something about the particular information at issue that, if disclosed, would reveal something of a personal nature about the individual

Where the information requested, billing information, arises in the context of providing medical services in a professional and business capacity under OHIP, it is removed from the personal sphere.

In coming to this decision, the Adjudicator acknowledged the significant portion of the provincial budget that is made to physicians under OHIP,

[199] …I find it significant that the physicians whose total annual payments are included in the record are being paid very substantial amounts of money from the public purse. As already noted, the dollar amounts paid to individual physicians in the five years reflected in the record have been disclosed, while the physicians’ names and, in some instances, their specialties, have been withheld. Accordingly, the dollar figures are public, and I will therefore refer to them here for the purpose of illustrating this point.

[200] In fiscal year 2012, the last year for which the record contains figures, the physician who received the highest annual amount under OHIP received payments of over $6,100,000. The physician whose total annual OHIP payments ranked at number 100, or the lowest amount included, received payments of over $1,400,000.

[201] 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.

[202] There is, moreover, no question that substantial expenditures of public funds do relate to the public interest. Seen in that context, there is a clear relationship between the record and the Act’s central purpose of shedding light on the operations and activities of government. I therefore find that there is a public interest in the disclosure of the record.

Because the money received by physicians in a business or professional capacity is a gross income and not their net personal income, the information does not reveal “other personal information about the individual” as defined by s. 2(1).

Underlying this position was the principle of transparency between government spending and contract, which is essential for accountability. Even though physicians are not public servants, transparency is not only required for services procured under a contract, but also providing services to the public under an umbrella of public funding. Further information about the medical specialties would assist in evaluating how these public funds are being used.

An appeal of this decision was upheld by the Divisional Court last year in Ontario Medical Association v. Ontario (Information and Privacy Commissioner). The applicants stated that the Order was unreasonable and was an invasion of their individual privacy, on the basis that the Adjudicator ignored earlier IPCO decisions that have concluded that OHIP payments to physicians were personal information.

Justice Nordheimer did not accept this proposition of the Adjudicator that he was not bound by stare decisis was proper, relying on the Court in Weber v. Ontario Hydro,

14 The first significant difference between courts and tribunals relates to the difference in the manner in which decisions are rendered by each type of adjudicating body. Courts must decide cases according to the law and are bound by stare decisis. By contrast, tribunals are not so constrained. When acting within their jurisdiction, they may solve the conflict before them in the way judged to be most appropriate…

He also rejected the argument of the appellants that the journalist had not clearly stated the reason for requesting the information,

[32] Two observations can be made on this argument. The first observation is that [the reporter] does not need a reason to obtain the information. FIPPA mandates that information is to be provided unless a privacy exception is demonstrated. Once it is determined that the information is not personal information, there is no statutory basis to refuse to provide it.

[33] The second observation is that this argument ignores the well-established rationale that underlies access to information legislation. That 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…

[34] The proper question to be asked in this context, therefore, is not “why do you need it?” but rather is “why should you not have it?”.

The matter was further appealed to the Ontario Court of Appeal, which released its decision last week. The unanimous court upheld the decision, stating,

[20] …Far from being ambiguous, the purposes of the Act are clearly set out in s. 1:

1. The purposes of this Act are,

(a) to provide a right of access to information under the control of institutions in accordance with the principles that,

(i) information should be available to the public,

(ii) necessary exemptions from the right of access should be limited and specific, and

(iii) decisions on the disclosure of government information should be reviewed independently of government; and

(b) to protect the privacy of individuals with respect to personal information about themselves held by institutions and to provide individuals with a right of access to that information.

[21] The balancing of access to information against the protection of individuals’ privacy with respect to personal information is therefore already built into the Act.

At the Court of Appeal, the appellants attempted the argument that s. 21(3)(f) of the Act, which creates a presumption for the invasion of privacy, should be used to inform the definition of “personal information.” This subsection includes not only individual finances and income, but also assets, liabilities, and financial history or activities, and was part of the basis for the Ministry’s initial opposition to providing this information.

The court also rejected this argument,

[26] In our view, where, as here, an individual’s gross professional or business income is not a reliable indicator of the individual’s actual personal finances or income, it is reasonable to conclude not only that the billing information is not personal information as per s. 2(1), but also that it does not describe “an individual’s finances [or] income”, for the purpose of s. 21(3)(f). As a result, we are not persuaded that s. 21(3)(f) demonstrates that the Adjudicator erred in concluding that the billing information was not personal information.

The effects of this decision, and the information provided, is likely to have significant impacts on the negotiations and subsequent compensation schemes in place for physicians in Ontario, especially when entering an era of fiscal constraint.

What is more difficult to reconcile is the inconsistency in the review of privacy decisions coming out of the court this month.

The court’s earlier decision in Ontario (Children’s Lawyer) v. Ontario (Information and Privacy Commissioner) denied the requested information on the basis that s. 10(1) of FIPPA was a jurisdictional question that should be reviewed on a standard of correctness, whereas s. 2(1) in this case was reviewed on reasonableness. The basis for doing this was that the information requested from the OCL was “fundamental to the functioning of our legal system” as it related to solicitor-client privilege.

However, as I have noted here before, the Act itself provides a grounds for exclusion on the basis of solicitor-client privilege, meaning that the balancing is “already built into the Act.” The public interest in the operations of the OCL is at least as important to the public as funding for physicians, even though the former may have less of an impact on the budget. The different approaches between these decisions, despite some of the same members of the bench presiding over them, makes a consistent and functional interpretation of FIPPA challenging.

The anticipated amendments to FIPPA following the constitutional challenge in Toronto Star v. AG Ontario, anticipated within the next year, provides the new government an opportunity to provide greater clarity in the Act and how it applies. The constitutionality of the Act, the appropriate balancing within it, and determination of whether or not the Information and Privacy Commissioner has the authority to make a relevant inquiry, should all be addressed. The contemporary amendments at the Federal level under Bill C-58, as well as the Court’s decision in Alberta (Information and Privacy Commissioner) v. University of Calgary should provide some basis for creating an appropriate framework.

What this decision has also demonstrated is that privacy legislation can be used to help assist public policy decisions, especially those related to the provincial budget. A government that has promised to find $6 billion in efficiencies should rely on information obtained by the public to find where these efficiencies can be best found.

 

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