Manitoba Committee Hansard — 17 July 1991 (Legislative Affairs Committee, Sitting 5, 35th Legislature, 2nd Session)

35-2-la5

Manitoba — Debates (Hansard)

MG-8048 Second Session - Thirty-Fifth Legislature of the Legislative Assembly of Manitoba STANDING COMMITTEE on LAW AMENDMENTS 40 Elizabeth II Chairman Mr. Jack Reimer Constituency of Niakwa VOL XL No.5· 7 p.m., WEDNESDAY, JULY 17, 1991 Printed by the Office of the OUHtiS Printer. Province of Msnltobe ISSN 0713-9586

MANITOBA LEGISLATIVE ASSEMBLY Thirty-Fifth Legislature LIB - Liberal; NO- New Democrat; PC - Progressive Conservative NAME ALCOCK, Reg ASHTON, Steve BARRETT, Becky CARR, James CARSTAIRS, Sharon CERILLI, Marianne CHEEMA, Guizar CHOMIAK, Dave CONNERY, Edward CUMMINGS, Glen, Hon. DACOUAY, Louise DERKACH, Leonard, Hon. DEWAR, Gregory DOER, Gary DOWNEY, James, Hon. DRIEDGER, Albert, Hon. DUCHARME, Gerry, Hon. EDWARDS, Paul ENNS, Harry, Hon. ERNST, Jim, Hon. EVANS, Ciif EVANS, Leonard S. FILMON, Gary, Hon. FINDLAY, Glen, Hon. FRIESEN, Jean GAUDRY, Neil GIUESHAMMER, Harold, Hon. HARPER, Elijah HELWER, Edward R.

HICKES, George LAMOUREUX, Kevin LATHLIN, Oscar LAURENDEAU, Marcel MALOWAY, Jim MANNESS, Clayton, Hon. MARTINDALE, Doug McALPINE, Gerry McCRAE, James, Hon. MciNTOSH, Linda, Hon. MITCHELSON, Bonnie, Hon. NEUFELD, Harold, Hon. ORCHARD, Donald, Hon. PENNER, Jack PLOHMAN, John PRAZNIK, Darren, Hon. REID, Daryl REIMER, Jack RENDER, Shirley ROCAN, Denis, Hon. ROSE, Bob SANTOS, Conrad STEFANSON, Eric, Hon. STORIE, Jerry SVEINSON, Ben VODREY, Rosemary WASYL YCIA-LEIS, Judy WOWCHUK, Rosann CONSTITUENCY Osborne Thompson Wellington Crescentwood River Heights Radisson The Maples Kildonan Portage Ia Prairie Ste.

Rose Seine River Roblin- Russell Selkirk Concordia Arthur- Virden Steinbach Riel St. James Lakeside Charleswood Interlake Brandon East Tuxedo Springfield Wolseley St. Boniface Minnedosa Rupertsland Gimli Point Douglas Inkster The Pas St. Norbert Elmwood Morris Burrows Sturgeon Creek Brandon West Assiniboia River East Rossmere Pembina Emerson Dauphin Lac du Bonnet Transcona Niakwa St. Vital Gladstone Turtle Mountain Broadway Kirkfleld Park Flin Flon La Verendrye Fort Garry St. Johns Swan River PARTY.

LIB NO NO LIB LIB NO LIB NO PC PC PC PC NO NO PC PC PC LIB PC PC NO NO PC PC NO LIB PC NO PC NO LIB NO PC NO PC NO PC PC PC PC PC PC PC NO PC NO PC PC PC PC NO PC NO PC PC NO NO

15 7 LEGISLATIVE ASSEMBLY OF MANITOBA THE STANDING COMMITTEE ON LAW AMENDMENTS Wednesday, July 17,1991 TIME-7p.m. LOCATION- Winnipeg, Manitoba CHAIRMAN- Mr. Jack Relmar (Niakwa) ATTENDANCE- 11 -QUORUM- 6 Members of the Committee present: Hon. Messrs. Downey, Gilleshammer, Hon. Mrs. Mcintosh, Hon. Mrs. Mitchelson, Hon. Mr. Orchard Messrs. Cheema, Doer, Gaudry, Reimer, Sveinson, Ms.

Wasylycia-Leis APPEARING: Doug Martindale, MLA for Burrows Gail Mildren, General Counsel, Department of Justice Gordon Ca rnegie, Cr own Counsel (Legislation), Department of Justice WITNESSES: Duane Nieman, Manitoba Pharmaceutical Association Mark Gabbert, Citizens for Quality Mental Health Care Jim Ross, Manitoba Medical Association Anthony Dalm yn, Advocates' Society of Manitoba Keith Dubick, The Manitoba Association for Rights and Liberties Randy Komisho n , Canadian Paraplegic Association {Manitoba) Inc.

John Read, Manitoba Hotel Association Dennis Smith, Manitoba Restaurant & Foodservices Association Leo Ledohowski, Hospitality Corporation of Manitoba MATTERS UNDER DISCUSSION: Bill 51- The Pharmaceutical Act Bill 4- The Health Services In surance Amendment Act Bill 6 9-- The Manitoba Medical Association Fees Repeal Act Bill 50- The Liquor Control Amendment Act Bill 75-- The Manitoba Employee Ownership Fun d Corp oration and Consequential Amendments Act *** Mr. Chairman: Will the Standing Committee on Law Amendments please come to order. This evening, the committee will be considering a number of bills.

The bills being considered are Bill 4, The Health Services Insurance Amendment Act; Bill 51 , The Pharmaceutical Act; Bill 50, The Liquor Control Amendment Act; Bill 69, The Manitoba Medical Association Fees Repeal Act; Bill 75, The Manitoba Employee Ownership Fund Corporation and Consequential Amendments Act. It is our custom to hear briefs before consideration of the bill. What is the will of the committee? Agreed. I have a list of persons wishing to appear before this committee to speak to the bill. The list reads as follows: Bill4, The Health Services Insurance Amendment Act: Mr.

Mark Gabbert, Citizens for Quality Mental Health Care; Mr. Anthony Dalmyn, Advocates' Society of Manitoba; Mr. Keith Dubick, The Manitoba Association for Rights and Liberties; Mr. Randy Kom ishon , Cana dian Paraplegic Association. Bill 50, The Liquor Control Amendment Act: Mr. John Read, President of the Manitoba Hotel Associa ti on; Mr. Dennis Smi th, Manitoba Restaurant & Foodservices Association; Mr. Leo Ledohowski, Hospitality Corporation of Manitoba; Mr. Art Roy, private citizen. Bill 51 , The Pharmaceu tical Act: Persons wishing to make presentation: Mr.

Duane Nieman and Stewart Wilcox with the Manitoba Pharmaceutical Association. Bill 69, The Manitoba Medical Association Fees Repeal Act: Mr. Jim Ross.

158 LEGISLATIVE ASSEMBL Y OF MANITOBA July 17 , 19 91 Hon. Donald Orchard (Minister of Health): Mr. Chairman, I understand two of the presenters, Messrs. Nieman and Wilcox, have other commitments and they have only one brief. I wonder, with concurrence of the committee, if we might hear their brief first and then move in order. Would that be in agreement with the committee? Mr. Chairman: Agreed? Agreed. Mr. Orchard: Thank you. Mr. Chairman: Should anyone else In attendance wish to speak to the bills, please inform the committee clerk and your names will be added to the list of presenters.

Does the committee wish to impose time limits? Mr. Gary Doer (Leader of the Opposition): No, Mr. Chairperson, nor do we want to have any other restrictions on public debate. Mr. Orchard: Why would I be surprised? Mr. Chairman : Ther efore , ther e will be no imposition of time limits. 811151- The Pharmaceutical Act Mr. Chairman: Therefore, I now call on Mr. Duane Nieman and Mr. Stewart Wilcox. Mr. Nieman is the presenter. We will just circulate your presentation. Mr. Duane Nieman (Manitoba Pharmaceutical Association): The prese ntati on has been circulated. Mr. Chairman: Now it is, yes. Mr.

Nieman: It is now being circulated. Actually, it is now circulated. Mr. Chairman: You may proceed. Mr. Nieman: Thank you very much. The Manitoba Pharmaceutical Association is the regulatory body for pharmacists in Manitoba. We are charged with the duty of administering The Pharmaceutical Act on behaH of the province and in so doing protect the public interest in the area of pharmacy practice. Most of the changes to the act are in form and language for clarification. However, there are significant changes in the discipline pr ocess .

The disci pline sec ti on of The Pharmaceutical Act should have two goals, to protect the public interest and to treat the parties involved in a fair and just manner. The current act falls short in both these areas. The current procedure leads to long delays which may allow incompetent or dishonest persons to continue to practise since the current act does not allow for suspension pending of hearing. * (1 905) Under the new process the complaints committee would be struck.

This would be made up of three people who would be able to take and direct the matter to discipline committee, act on it on their own, and to judge whether or not the matter is appropriate to be handled immediately or can stand time. The other thing that Is important is we now have the inclusion of nonpharmacist licence holders in the discipline process. This was an area that was beyond our scope before and has led to problems in the past within our association. Open hearings are now considered the thing to do. In the current act, we are holding our hearings in private.

We believe a change to open hearings is in keeping with current thinking. It should be pointed out that laypersons appointed by the government will continue to be involved at all levels of the discipline process. I thank you for your consideration, and Mr. Wilcox and/or I will answer any questions you may have. Mr. Gary Doer (Leader of the Opposition): Thank you very much, Mr. Nieman, for the presentation and your views on the bill before the committee. I was very happy to see your comments on open hearings, I think a concern that has been raised not only In this association but other associations as well.

I was just wondering, in crediting the bill for this change into open hearings, what were the views of the membership on this change? Was it a fairly positive proposal as articulated in your brief and a lot of credibility with the membership or the association in terms of the idea of openness which you applaud in this bill? Mr. Niem an: We have had absolu te ly no opposition by our membership at all in discussion. This has been one of the things that has been ongoing in our discussions with our membership. Mr. Doer: I would like to congratula te your association's membership then on that.

I think it is an inn ovation that the government is making consistent, I think, with the public interest for a lot of associations. Thank you very much. Mr. Nieman: Thank you. Mr. Guizar Cheema (The Maples) : Mr. Chairperson, first of all I would like to thank Mr.

July 17 , 19 91 LEGISLATIVE ASSEMBLY OF MANITOBA 15 9 Nieman for his presentation. I met with the registrar, Mr. Wilcox, and we had a fair discussion. I think this bill, which has been in the works for at least five years, had consu ltation with the pr evious administration and this administration and really goes a long way to help the process. I think it is a very positive development. I want, from our party's point of view, to let you know that I think your association has made a lot of progress.

I think this will be a model for the rest of the country to see that we have taken a very, very open approach-very positive approach. I just wanted to have those comments on the record. Thank you. Hon. Donald Orchard (Minister of Health): Mr. Chairman, I just want to thank the Manitoba Pharmaceutical Association for the amendments they are proposi ng because they are very progressive.

I have to state publicly again, as I did in the debate on second reading, that your association has been very professional in its dealing with this government and previous governments in terms of attempting to make your services better for the public at large. You represent your association well. I thank you both for being here this evening. Mr. Chairman: Thank you, Mr. Nieman and Mr. Wilcox. * (1 910) 81114- The Health Services Insurance Amendment Act Mr. Chairman: We will now proceed with the public presentations on Bill 4, The Health Services Insurance Amendment Act. I will call on Mr.

Mark Gabbert, Citizens for Quality Mental Health Care. Do you have a written brief? Mr. Mark Gabbert (Citizens for Quality Mental Health Care): Yes, I do, Mr. Chairperson. Mr. Chairman: We will just pass it around. You may proceed. Mr. Gabbert: Thank you, Mr. Chairperson. Let me say to begin with how pleased we are to be able to be here to give our views on what we consider to be an extremely important piece of legislation.

Citizens for Quality Mental Health Care is a nonpartisan group of patients and mental health care professionals committed to preserving and expanding adequate mental health care for Manitobans. In considering Bill 4, we have been especially concerned with its impact on patients, particul arly patients undergoing psychia tric treatment. Bill 4 amends The Health Services Insurance Act in ways that, among other things, increase the Health Services Commission's ability to hold physicians and laboratories accountable for the proper expenditure of public funds.

The proposed amendments go beyond existing legislation in spelling out the duties of the Medical Review Committee to investigate physicians whose pattern of practice appears to be a departure from the norm of their specialty in specifically empowering the commission to send inspectors to the offices of physicians to examine and copy recor ds; in specifically requiring physicians to provide the Medical Review Committee with records in an acceptable form ; in subjecting laboratories and specimen collecting centres to inspection without warrant of facilities, equipment and records; in deeming patients receiving insured services to have given up control of their personal medical records if their physicians are under review by the Medical Review Committee or Formal Inquiry Committee and are required by those committees to produce patient records; and finally, by depriving patients of their right to bring legal action against a physician for releasing their personal medical files to the Medical Review Committee or Formal Inquiry Committee.

Citizens for Quality Mental Health Care has no quarrel in principle with attempts to assure that public funds provided for health care are properly spent. We are not convinced, however, that the more general language of the current legislation, which tends to leave space for consideration of matters of confidentiality should be replaced by provisions which explicitly deprive patients of important rights to privacy. Nor do we think that the more aggressive and intrusive measures outlined in Bill 4 will serve the public interest more effectively than the existing legislation.

What is certain, however, is that in their present form these measures pose a threat to the confidentiality of patient health records and, consequently, to the actual delivery of health care to Manitobans. Ever since the begi nnin g of the medical profession with the work of Hippocrates in the 4th Century, confidentiality has been an absolutely fundamental precondition for the practice of

16 0 LEGISLATIVE ASSEMBLY OF MANITOBA July 17 , 19 91 medicine. The relationship between patient and physician has always been considered to be fiduciary, a matter of trust upon which the very practice of medicine is dependent. Today medical ethics see the patient's right to confidentiality as one which must strictly regulate the conduct of medical practitioners who are obliged to preserve the fiduciary nature of the physician-patient relationship and to prevent confidential health records from being revealed to third parties without the patient's knowledge and consent.

The importance of confidentiality to the practice of medicine is then partly rooted in the patient's right to privacy which should protect him or her from the pain of embarrassment arising from the release of health records to third parties. Beyond that, it is only if patients can be guaranteed that their medical records will remain a private matter that health care will be sought In the first place.

To put It another way, the absence of a genuine commitment to confidentiality will have a chilling effect on the willingness of patients to seek medical care for conditions the public knowledge of which would prove embarrassing or damaging to them. In short, if we wish those who need medical treatment to seek it, we must guarantee that health records will remain confidential and that no harm will come to the reputation, interests or privacy of the patient as a result of seeking necessary care.

Failure adequately to protect confidentiality would significantly undermine the efficacy of the medicare system. • ( 1 91 5) As we have argued, confidentiality is crucial to the practice of medicine. With respect to physical illness, this is most apparent in such cases as, for example, the confidentiality of HIV testing and treatm ent for sexually transmitted diseases generally, although there are also many other physical conditions which the patient may wish to keep strictly between him or herself and the physician.

One immediately calls to mind the matter of abortion and the extremely important role that confidentiality plays in allowing women to make a decision to seek such services. It is with respect to mental and emotional health that the maintenance of confidentiality is arguably most crucial to the possibility of effective treatment, because despite all the best efforts of patient advocates and mental health groups, in Canadian society, mental illness continues to carry a stigma, to be a potential threat to employment and, at the very least, to be a cause of embarrassment.

There is little doubt that many people who could benefit from treatment are deterred by this stigma from seeking psychiatric help, and there are most assuredly a great many others who have only sought treatment on the assumption that their having done so will remain a private matter between patient and physician. Concern about confidentiality in cases of mental health care must go beyond a simple focus on the effect that uncertainty about confidentiality might have on a decision whether or not to seek treatment at all, for once a person is actually in treatment, confidentiality takes on an added importance.

This is especially true with the case of psychotherapy. Psychotherapy proceeds on the assumption that healing depends fundamentally upon the patient being able to communicate to the therapist in absolute freedom the details of feelings and events which are at the root of the condition for which treatment is being sought. If there is uncertainty as to whether this material might be divulged to third parties, the freedom of both patient and therapist is inh ibited, the entire therapeutic relationship is threatened and the process of healing can be very seriously undermined.

In short, for patients seeking psychiatric help, confidentiality is a crucial precondition both for seeking treatment in the first place and for making possible effective psychotherapy once the decision to seek treatment has been taken. To this point we have spoken of confidentiality as an absolute right, but, of course, in our society there is no such absolute right. There are a number of third parties who have claimed to have reason to know material that might not be reasonably diwlged on purely medical grounds.

One thinks of the College of Physicians and Surgeons and, of course, with respect to the present act, one thinks immediately of the Health Services Commission, the Medical Review Committee and so on, because here, of course, the need to know by third parties has to do with the responsible and justifiable expenditure of public funds. The cu rrent Health Service Insu rance Act establishes the Medical Review Committee which is empowered to review the practices of physicians and order repayment to the commission of any funds the committee determines were paid to the

July 17 , 19 91 LEGISLATIVE ASSEMBLY OF MANITOBA 16 1 practitioner "by reason of any departure from the pattern of medical practice established by the committee.w In the course of its investigations, the Medical Review Committee is currently authorized to have •access to the records of any person that relate to a matter before the committee and is entitled to obtain from any person information that relates to a matter before the committee." What the current legislation does is give to the Medical Review Committee certain powers to carry out its mandate.

The amendments to the act embodied In Bill 4, which is the matter before us this evening, go further and stipulate the specific measures that both the Health Service Commission and the Medical Review Committee may take pursuant to their current powers.

I note, too, here that Bill 4 also introduces an entirely new comm ittee, the Formal Inquir y Committee, which begins Its deliberations in the case that the Medical Review Committee cannot come to an agreement with the affected, or the investigated, physician on the nature of his alleged violations or the amount of the repayment that the physician is being asked to retur n to the commission. In any case, reasonable people could disagree on whether these changes are required to ensure the proper exp enditure of public funds.

What is absolutely clear, however, is that, as they stand, the new provisions provide a serious threat to the security of patient records. They have a grave potential to undermine the certainty of the patient that his or her medical record will not become the knowledge of third parties, and will be protected against public disclosure.

Generally these threats to the principle of confidentiality consist in the following: First, and extremely important in our view, by deeming every insured person to have authorized the release of his or her medical records to the Medical Review Committee or the Formal Inquiry Committee, the basic principle of patient control over the release of medical records, and the patient rights to confidentiality is deeply eroded, some would argue, in fact even abolished. * (1 920) Second, nowhere does the proposed legislation require that the hearings of the Medical Review Committee and the inquiry committee be held in camera.

Thirdly, the proposed legislation fails to take into account the special need of psychiatric patients for confidentiality. · Fourthly, nowhere does the proposed legislation specify what procedures are to be used with respect to controlling the numbers of copies of confidential patient records to be produced, the way in which access to these documents is to be regulated, to whom such documents are to be returned after each use, or the ultimate disposition of such documents.

Fifthly, the proposed language does not require that information in a file which might be used to identify a particular patient be removed before any hearings authorized under the act take place. Sixth, the proposed language does not take into account that particularly, though certainly not only, In the case of psychiatrist's files, third parties may be mentioned whose rights to privacy must also be protected.

Seventhly, by increasing the potential number of committee and staff personnel to whom patient records may be exposed, the proposed legislation radically increases the number of people who have knowledge of a person's health care record. We are strongly convinced that the proposed legislation must be revised to take into account the threats to confidentiality noted above, and we submit the following recommendations designed to alleviate these difficulties. The first recommendation is that the present

section 77(4) of Bill4 be deleted. I note, by the way, that In my copy at least of proposed Bill 4, this

section as listed as 77.1 , but I think It must be a mistake because there are 77(1 ), (2) and (3) and then at the top of the next page there is 77.1 again, so I am calling it 77(4) on the assumption that the numbering will get right eventually.

So the first recommendation, that the present 77(4) be deleted, that Is the particular clause which asserts that every Manitoban who is in receipt of insured medical services is deemed to have given up control over his medical documents and to have authorized his physician to hand them over in whatever form the Medical Review Committee or the Formal Inquiry Committee wishes. That should be deleted and be replaced by language Indicating that the Medical Review Committee and the Formal Inquiry Committee have the right to access to the personal medical records of patients under the provisions of this act only when

16 2 LEGISLATIVE ASSEMBLY OF MANITOBA July 17 , 19 91 there are reasonable and probable grounds to assume an irregularity in billing practices and when the public interest involved outweighs the right to confidentiality enjoyed by patients. The great advantage of the language we are proposing is that it reaffirms the principle of confidentiality while at the same time recognizing that in certain specific circumstances, the public interest may require a weakening of that principle. This is a much sounder approach than simply abolishing the patient's right to privacy at the outset as the proposed language does.

As presently worded, the act would allow the Medical Review Committee to go on fishing expeditions triggered merely by some statistical irregularity in a physician's pattern of practice. In other words, you find somebody who is outside the average one way or the other and he may or may not have a reasonable explanation. Perhaps you have an interest in seeing to it that the pattern of his practice changes radically in different ways, so why not go and take a look at his patient records. In the current language, this would be permitted to the Medical Review Committee.

We argue that this opens the way for every sort of mischief, and I should say to the committee that admittedly very brief consultations with two different legal experts, one of whom is a well-known constitutional lawyer. Both of those experts argued that this particular clause of the proposed Bill 4, 77, could certainly be challengeable under

Section 7 or

Section 8 of the Charter of Rights,

Section 7 being the one that guarantees the right to security of person. One of the legal persons in question pointed out that if it could be shown that people were deterred from seeking medical treatment on the grounds of this kind of measure, then a strong case could be made for violation of the Charter.

Section 8, of course, has to do with unlawful search and seizure. Second recommendation, that it be stipulated in the act that all hearings of the Medical Review Committee and the special inquiry committee be held in camera. I will not go into this in great detail except to remark that the government has itself recently amended The Mental Health Act in exactly this way, that one of the most important additions to The Mental Health Act as presented in Bill 5 was precisely the special procedures that were put in place to protect the confidentiality of records of people who are hospitalized.

So it strikes us as passing odd that in this particular bill, the good sense of the government was not sort of replicated. • (1 925) Thir d recom men dation, that lang uage be included in Bill 4 that prohibits the release of the original or any copy of the original of the medical record of any patient undergoing psychotherapy. It should be stipulated that if the Medical Review Committee or Formal Inquiry Committee must have information relating to such patients, then they should be provided with a record prepared by the attending physician specifically for the case in question.

Such a record must be entirely free of any identifying information and must be shown to and approved by the patient prior to its release to any deliberative body. Here, we wish to emphasize again the crucial importance of confidentiality to psychotherapy, an impor tance which goes far bey ond the understandable concern for the patient's reputation, privacy and interest. Psychotherapy is simply impossible to undertake if the patient is not assured that the details of treatment will not go beyond the physician's consulting room.

H there is a fear that third parties may come to have knowledge-a nd I am emphasizing here having knowledge, not simply breaches of confidentiality-of the person's condition or of any details of the treatment, the freedom of communication between therapist and patient may be inhibited and the therapy rendered ineffective. We repeat again that the mere absence of breaches of confidentiality is not sufficient to avoid this difficulty. Rather, a patient must be certain that no thir d party , authorized or not, will have knowledge of the details of the treatment process.

We are convinced that only if the patient sees the communication in question-in other words, the patient has to know what is being communicated to the third party and approves of its content-can the danger of irreparable damage to the patient's treatment be avoided. I note here, too, by the way, that recent material from the Canadian Medical Association having to do with confidentiali ty emph asizes in creasing tendency in law and in practice toward guaranteeing a patient access to his or her medical records. What we have suggested here is partly consistent with that.

July 17 , 19 91 LEGISLATIVE ASSEMBLY OF MANITOBA 16 3 Indeed, we are not certain that even the measures we are proposing here are entirely sufficient to ensure that a person's psychotherapy might not be destroyed by the undermining of security and freedom that disclosure of confidential information in any form inevitably entails. In short, the need for confidentiality on the part of these patients is of a different order than that of any other group of patients. Recommendation 4 is fairly straightforward. It has to do with procedures with respect to confidential material.

I will not say much about it except to emphasize the point that nothing is said in the bill about what happens to these documents once the deliberative bodies are finished with them. I remind the committee again that Bill 5 stipulates in fairly specific ways what is supposed to happen to the medical record of a patient after a deliberative body deals with it, in the case of a mental patient in a mental hospital. We do not see why The Mental Health Act should be stronger in this particular regard than the health insurance act. Rfth point, again fairly clear, I think.

It has to do with the Importance of deleting identifying material from any patient records that are considered by the Medical Review Committee or the Formal Inquiry Committee before those com mittees begin to deliberate. It seems to me the Importance here is that if a deliberation goes on several days running, which is not Impossible, then the people who are Involved In those deliberations have before their eyes the whole of this time the names and other Identifying details of a person's treatment record.

Even If we were to assume--a nd I am not refusing to assume that such people are perfectly able to maintain confidentiality, and we know that there Is a very good record of maintaining confidentiality on these matters; nevertheless, we still have a situation where in creasi ng numb ers of people have knowledge of the medical records of others. We do not see any reason why the names and other identifying material are necessary to the Medical Review Committee or the Formal Inquiry Committee to carry out its deliberations.

Why not simply mark this material as exhibits with a different number than the number of the person's Health Services Comm ission number? That makes the stuff Identifiable for the purposes of the commission. Otherwise you have a situation where the staff of these comm lttees Is running back and forth to Xerox machines and so on and so forth and obviously this is not in the best interests of patient confidentiality. *

(1930) Number 6, in the case of third parties, third party names should be deleted, and seventh, a point about retroactivity, which I think is very significant. If this bill is passed, it should not cover patient documents that were generated prior to the date of its receiving Royal Assent. The reason we are convinced of this is because we feel that patients who have gone into treatment prior to this act have made certain assumptions about the security of their medical records.

We believe that it would be the responsibility of the physician to explain to the patient what the new regulations were and that the patient would then have to make up his or her mind about what course to take with respect to treatment. So we think that retroactivity would not be in the best Interests of the patient In this particular case. Now, there are a few places in the details of the language of Bill 4 which we would just like to bring to the committee's attention very briefly.

They are basically recommendations eight through 10 , have to do with what seems to be somewhat unclear language about the nature of the books and records In question. In 75.2, for example, where the Health Services Commission is empowered to send inspectors around to the offices of physicians, It should be made very clear that the records they are allowed to pick up and copy are not patients' personal medical records. Now in that particular

section of the act It seems to Imply that that is the case because the language does refer to claims for benefits relating to services provided, documents relating to that.

That would seem to mean administrative and financial matters, and yet, anybody who has been around legal debates over the meaning of contract language knows perfectly well that the best thing would be to make it quite clear that this does not include patient records because the nightmare scenario is the Inspectors from the Health Services Commission going down to the physician's office and deciding to pack up whatever they need and not only taking financial materials, but taking boxes full of patient records, the fate of which one would not be certain about. We would not want a situation like that to arise.

Similarly in

Section 77(2)(

a) and (b):

Section 77(2)(

a) seems to refer once again to records and books that have to do with fi nances and

164 LEGISLATIVE ASSEMBLY OF MANITOBA July 17 , 19 91 administration.

Section 77(2)(

b) refers explicitly, of course, to patient records. It should be made very clear, I think, in the drafting of 77(2)(

a) that that language does not refer to patient records. It should be made very clear that it is only 77(2)(

b) that refers to patient records, that that is the only place in the act where patient records are referred to and otherwise we are talking about much less personal kinds of material. Such language would allow the physician, him or herseH, to present to the Medical Review Committee or the Health Services Commission or the Formal Inquiry Committee material in forms which would be properly disguised and properly free of identifying material.

I would say we have said in other places in this brief that we do feel the physician is in a particularly privileged position to get rid of Identifying material because there is more identifying material in a file presumably than simply the patient's name. There are also other circumstances of his existence. There are his relatives, his occupation, a whole range of other things that would need to be deleted. Anally, Recommendation 11 has to do basically with the language in

Section 12 8 dealing with laboratories. There is absolutely nothing in that language that addresses itseH in the slightest to patient confidentiality. I admit, and of course we are perfectly aware, that there are a couple of sections in the act that stipulate that only people who are legally entitled to have access to these things should be allowed to do so. Of course, those people are never specifically defined. The number of those people seems to increase with these provisions. It is bound also to include staff as well as professional people. On balance, we think that the language in

Section 12 8 needs strengthening. To conclude, on balance we are disappointed by the government's failure to take more seriously the matter of patient rights to confidentiality. Bill 4 contains measures which give considerable encouragement to the Health Services Commission and Its Medical Review Comm ittee to act aggressively when investigating physicians who are suspected of practising in ways that are inconsistent with the average for their specialty.

The right to send insp ectors to examin e laboratories without warrant, to demand patient records and so on, inject an element of police-like surveillance into the practice of the Health Services Commission and the Medical Review Committee that the more general language of the existing legislation avoids. Further, the automatic and complete withdrawal of patient rights to control over their medical records is totally unacceptable. Under the new legislation, more confidential documents are likely to be seen by an increasing number of third parties.

It is, therefore, all the more important that rigorous protection for the right of patients to remain anonymous be written into the law. Unfortunately, Bill 4 provides only the most routinized and minimal reference to confidentiality, which takes no account of the potential for abuse that the new legislation creates. It is not enough to protest that civil servants and physicians acting In a quasi-judicial capacity are honest and reliable. For the most part, this is no doubt true, butt here are inevitably exceptions.

One need only refer to the three volumes of the 19 80 Ontario Royal Comm ission on Medical Confidentiality to get a sense of the ubiquity of violations of patient rights in this regard. We repeat, even where there is no violation of confidentiality, there may still be knowledge of confidential material which may be acted on to the detriment of the patient in question. I would just like to distinguish once again between those two things. It is one thing to say that people who have a right to see will not say anything about this material to persons who do not have a right to see.

On the other hand, if you Increase and proliferate the number of people who technically have a right to see, you are increasing the number of people who have knowledge of a person's medical record and, conseq uently, you are increasing the number of people who may be in a position to act on that knowledge without ever breaking confidentiality in a social way, with respect to employment, or a range of other ways that nobody might ever know about, but which, nevertheless, could be quite damaging to the patient.

As we noted at the outset, our primary concern is with the rights of patients receiving mental health care. Consequently, we wish to emphasize once again how crucial the security of medical records is to such patients. For these patients the diwlging of information or the distributing of knowledge about their condition, even to authorized persons, is more than simply a matter of embarrassment which might adversely affect their interests or reputation, though of course it is certainly that.

July 17 , 19 91 LEGISLATIVE ASSEMBLY OF MANITOBA 16 5 Beyond that, in the absence of guarantees that their treatment will be a matter solely between patient and physician, the possibility of treatment itself is undermined. Any measures to ensure physician accountability have to take this basic fact into account. There is an old saying which defines a secret as something only one person knows. Everyone recognizes the truth of this adage. When people are ill, however, they must find a way to ignore this truth and entrust themselves to a physician.

In doing so, they hope their secret will be kept in confidence and third parties will not be privy to their suffering. This is particularly true of patients with emotional and mental difficulties for whom the gu arante es of confidentiality are essential prerequisites to the therapeutic process itself. It is not just a matter of embarrassment. It is a matter of whether the therapy is possible if in fact more than two people are involved in it. legislators must sometimes devise means to pry into this confidential relationship.

When doing so, they must ensure that the maximum effort be made to protect the interests of the innocent sufferer who sought care to begin with and whose healing is the very purpose of the health care system. We have tried to suggest ways this purpose might be protected, while still respecting the principle of public accountability. Thank you, Mr. Chairperson. Mr. Chairman: Thank you, Mr. Gabbert. Ms. Judy Wasylycla-Lels {St. Johns) : Mr. Chairperson, let me begin by thanking Mr.

Gabbert on behalf of the Citizens for Quality Mental Health Care for taking the time to be here this evening and presenting such a thorough brief on Bill 4. • (1 940) We appreciate very much the expression of concern around the confidentiality of patients' records, of clinical records. As you stated at the outset, I think we all believe we are trying to find a way and a legislative mechanism that ensures the government is able to deal with wrongdoing, with the cheating of the system, without compromising confidentiality in terms of patients' records and patients' interest.

I am concerned, based on your brief, that perhaps this bill is not merely housekeeping in nature, as the minister has generally categorized it, and may in fact have some flaws in some areas that we have to address this evening. Perhaps there are some areas where we can find some compromise and deal with some of the problems. let me start out by asking-you have said basically on the issue of confidentiality Bill 4 is seriously flawed. There are several sections in this bill that I am sure the minister and others would probably refer to in terms of trying to ensure that confidentiality is dealt with.

I refer specifically to 81 (5) which says: "A hearing of the Formal Inquiry Committee shall be held in private." Mr. Gabbert: I am sorry, where is that? Ms. Wasylycla-Lels: 81 (5) on the bottom of page 9. A second area that appears to address this is 84.1 (2) which states: "When compiling the record under subsection (1 ), the Formal Inquiry Committee shall strike out or delete information that might identify individual patients." Another section, of course, is 85.1 (1 ) entitled "D isclosure of information" which spells out con ditions under which information can be communicated or not communicated.

I am wondering, based on those three sections, if any of your concerns are addressed, and which are the serious outstanding matters based on those clauses. Mr. Gabbert: Mr. Chai rperson, first of all I appreciate your drawing to my attention the

section which requires the Formal Inquiry Committee to meet in closed session. I think that is very important. That does meet-partly meet our concern. So far as I know, that does not apply to the Medical Review Comm ittee. There may be something somewhere else, although I did not see that in The Health Services Insurance Act when I looked through it. I do think if we could get that, that would help. I draw your attention to 84.1 (2). The problem we have with 84(1 ) is not that there is anything the matter with it as it stands, but consider it.

When compiling the record under subsection (1 ), the Formal Inquiry Committee shall strike out or delete information that might identify individual patients. The question we raise in our brief is this: Why is it necessary for the Medical Review Committee and the Formal Inquiry Committee to have before their eyes at all times the names and identifying information about patients? These hearings may go on for some days. There are a number of people

16 6 LEGISLATIVE ASSEMBLY OF MANITOBA July 17 , 19 91 involved. There are staff people involved. Why is it so difficult to delete from the record the identifying material in these files before all these hearings have been done? look, what happens is this: There has been an investigation. The Medical Review Committee has had a hearing, presumably. Then the whole matter is being passed on to the Formal Inquiry Committee, which are different people yet again with another staff, presumably, or at least possibly.

All this time patient records are floating around with people's names on them and other identifying material. We do not see the purpose in that. It would seem to us to be the case that if dossiers were identified by number just as they are in exhibits in any kind of court hearing and so on or just as it is when somebody has to examine, let us say, exam scripts or something like that, you do not want to know the names of people, you want to have an objective opinion of that. The fact of the matter is, lots of work can get done without knowing somebody's name.

We cannot see why it would be necessary for all this confidential information to be before the eyes of the committee members for all this period. We are quite convinced that particularly for people who are under psychiatric care, this would be an enormously painful experience for them, an extremely dHficult thing for their therapy to survive, particularly if they had no real knowledge of the content of the records that were also put forward.

This act does not allow for psychiatric patients or any other patient to have access to what the physician sends forward to the Medical Review Committee or the Forma� Inquiry Committee. It seems to me to be a relatively simple thing. Obviously, somebody is going to have to alter the documents. Wel l, who is it going to be? Pr esuma bly, once you hav e a third party involvement, somebody trustworthy has to be able to do that, but it is not clear to me why anybody's deliberations should depend upon knowing the names or other identifying material relating to patients in question.

Now, with respectto 85.1 (1 ), here again I think we can only say that the intent is good, and I am not here to call into question the integrity of civil servants or physicians involved in this. What I am here though to do is to say that disclosure of information is one thing, but we have to go further than that with confidentiality. We also have to talk about limiting the amount of knowledge that people have about people's medical records.

In other words, the most honest character in the world, who would never breathe a word of something confidential outside of to those who were legally entitled, and of course it is not altogether clear who the legally en titled people are, nevertheless still has to live. Put it another way. Maybe from the point of view of the bureaucrat, does he really want to live with that knowledge himself? Does he really want to be in a position himself at some point to be able to act on that knowledge, even without divulging it to a party who has no right to have it?

So it strikes us that, yes, 85.1 (1 ) is a very important measure. It needs to be here, as does 84.1 (2). Nevertheless, we think that more could be done and that if more were done in the way we have suggested that it would be very much better for patients. I cannot emphasize that enough. Ms. Wasylycla-Lels: Just on 84.1 (2). I hear you saying that is a good provision, but you are asking the question, why does it not hold true for the whole process, including the Medical Review Committee process? Mr.

Gabbert: Well, yes, but of course you realize that we have recommended that the Medical Review Committee and all these committees meet in private. We have recommended that before the committees see this material that it be disguised. In that particular case, the identifying information would be less of a problem obviously. If the identifying information were not there before the committee the whole time of the deliberations, that would be an enormous help. The way the bill reads now, it has to be seen.

The way the bill reads now, if the Medical Review Committee says to a practitioner, we have to see your complete medical files in order to come to a decision about whether you have billed outside the average of practice for your particular specialty, and we want to see them holus-bolus the way they are, right, the medical practitioner is required to deliver them in that form, according to the language of the proposed act. The medical practitioner must package them up, because that is the form in which they are acceptable to the committee.

Then the whole lot, presumably, could be before the Medical Review Committee for some time and then be transferred off to the Formal Inquiry Committees,

July 17 , 19 91 LEGISLATIVE ASSEMBLY OF MANITOBA 167 presuming there was no resolution of the problem at the level of the Medical Review Committee. We just do not see that as necessary. We see that that is a terrible disadvantage to the protection of conf identiality, espec ially in the case of psychiatric records. • (1 950) Ms. Wasylycla-Lels: I think you raised a very important point and a question that we will need to pursue with the minister. That is why, generally, a provision cannot be in place to ensure that patients cannot be identified at any step of the process.

We will be looking forward to pursuing that with the minister. let me ask you about 77 .1 . Mr. Gabbert: 77.1 or the real 77(4). Ms. Wasylycla-Lels: Yes, on page 7, confidential information. That is a concern for us as well; the statement of basically insured persons deemed to have waived their rights through this provision is of concern. I do not know if there is going to be room to compromise on this or not, but we are going to attempt that this evening. I am wondering, if one was to entrench in that

section notice to patients before confidential information or records are provided to the Medical Review Committee, if that would go part way to addressing your concern, at least leave a vehicle for patients to register their concern and to put forward their objections. Mr. Gabbert: Well, there are several things to say about this.

First of all, you know, we are suggesting that the problem with 77(4) is this, that suppose, for example, you have a general practitioner who is doing a lot of psychotherapy and suppose the Health Services Commission is not very happy about that, let us say a general practitioner, somebody who usually does a whole range of things, and this guy's pattern of practice is out of whack and they are trying to persuade him to do more general practice and less psychotherapy because it is not very efficient or whatever.

Under this legislation, it seems to me if in their opinion the practice of that physician varies from the average of people operating in similar circums tances, then they can begin an investigation. In the course of the investigation they can root out his patient files and so on. There may be a perfectly legitimate explanation for why he sees fewer patients than the average general practitioner. He generally does psychotherapy.

He charges the Health Services Commission less for doing psychotherapy than a psychiatrist does, but instead of looking after people's tonsils and this, that and the other thing, he is doing psychotherapy. He might go to the Medical Review Commission and explain this, and in fact the Medical Review Committee might check with his patients and find out indeed if that is what he has been doing and find out whether the times they have been billed for his services, patients have actually shown up.

If, of course, he is able to respond on that grounds in a reasonable way, why should anybody go after his patient records if he can make an explanation? If the Health Services Commission does not want general practitioners to do psychotherapy, then there are other ways to manage that. You just tell them they cannot, presumably. You change the fee situation. You do whatever you have to do to change that situation. You do not, it seems to me, write into legislation the possibility of pressuring individual physicians to do this or that on the basis of being able to dig into their patient records.

I would say this about 77.1 -{4 )-however you want. We hav e sugges ted here that the commission should only ask for patient records when there is reasonable and probable cause to assume a genuine billing irregularity, in other words, when some investigation has really been done, and when the public in terest in seeing patient information to get to the bottom of this outweighs the right of the patients to confidentiality. That can become, of course, if there is a debate about it, that could become a legal matter.

I will bet you dollars to doughnuts that if you were to ask the average Manitoban whether they would rather there were language in this bill that said that they gave up the right to any control at all over their personal medical documents to deliberative bodies of the Health Services Commission, or whether they thought they should have some rights left over to prevent this at law, that they would be on our side in this matter, that they would want to be in a position to say look, just because my doctor is going to be investigated for this or that, maybe justifiable, maybe not, does not mean that immediately the Medical Review Committee can come to his office and pick up my medical record, xerox it and take it off to a hearing.

I just do not think that is consistent with the way people want medical practice to go on. The idea that you suggest of simply notifying people in advance, well, at least people know that

16 8 LEGISLATIVE ASSEMBLY OF MANITOBA July 17 , 19 91 their physician is being reviewed and that their medical records may be subpoenaed. I think there is some virtue to that but unfortunately it does not go to the heart of the matter, the heart of the matter being that the Medical Review Committee has sort of the straight line to these kinds of records as soon as it thinks that it is in its interest to have it. Current language is vaguer than that. Current language is more general than that.

Current language leaves a kind of space in which the Medical Review Committee and the physician and other people can tug around to try to figure out what kind of documents are acceptable and what kind are not. By stipulating, as this language does so clearly, a kind of aggressive way the Medical Review Committee can go after this, I think there is a danger that recourse to examining patient records will come much earlier in an investigation than it needs to come. Ms.

Wasylycla-Lels: Jus t a couple more questions, the first one tying into your comments about practitioners who may not fit the norm, who may not have run the average practice or the standard prac tice. It is a concern of min e throughout this bill, because throughout the bill reference is made to reviewing those whose practices depart from the average pattern of practice. In several places throughout the bill there is mention of departing or not departing unjustifiably from the average pattern of practice. I have concerns about that. I would imagine that based on your earlier comments, you may as well.

Although it is not touched in your brief, I am wondering what your thoughts are in terms of that terminology and if we should be pursuing amendments in those areas. Mr. Gabbert: Mr. Chairperson, I think the minister himseH, of course, is preoccupied with the problem of outriders. I do not see that the problem with outriders is a nonproblem by any means. Obviously, if you find somebody who is doing wildly more procedures of this or that sort than somebody else, then there should be a reasonable explanation for it.

On the other hand, there are a couple of things here, first from the point of view of actual cost savings. You know, when you look at the curve of medical practice, obviously where you are spending the most money is in the hump of the curve. There is much more going on in the hump of the curve by way of total expenditures than with the outriders and, arguably, it is the people who are operating in the average who need to be looked at, as well. The other thing, of course, is the current language in this proposed amendment in Bill 4 talks about an average of physicians operating in simi lar circumstances.

That is a change of language from the old language which talks about a norm which the comm ission itself sees as reaso nable . The average, of course, presumably is a much narrower standard than two or three standard deviations on either side of the curve. I know when you are dealing with gobs and gobs of practitioners you have to find some way to sort of trigger a concern about the way medical care is being delivered.

It seems to me if you have a situation where an investigation leading to the examination of patient records begins to happen, that somebody is outside the average on one side or the other, then you have potentially got a problem. That is why I think our proposed language to 77(4) is more satisfactory, because it requires the Medical Review Committee to look at more than just the average of a particular practitioner, given the circumstances under which he is practising. I think our particular language would avoid this kind of fetishism of statistics. Ms.

Wasylycla-Lels: A final question with respect to the part of the bill that allows for calling of witnesses. The wording of the bill is general so- Mr. Gabbert: Can you draw my attention to that? Ms. Wasylycla-Lels: Yes, 82(2) Witnesses and records. The question is a general one. My concern is that there may be people for health reasons or because they are in ongoing therapy where it would be quite harmful and destructive to be suddenly required to be a witness at one of these hearings.

I am wondering if we should be looking to put any provision in this bill that would allow, in such cases, those individuals to be excused from testifying. Mr. Gabbert: Mr. Chairperson, I confess it did not strike me at the time that might be a problem. I can see that in certain kinds of psychiatric practice, in fact in any psychiatric practice, you could well find somebody who would not be fit to testify. I am not a lawyer, and I do not know what the recourse would be for such a person if he or she were called to testify at such a hearing. Here again, I think mitigating language would help. That is for certain.

July 17 , 19 91 LEGISLATIVE ASSEMBLY OF MANITOBA 16 9 I might put it this way. At least if a person were to testify on his or her own behalf, the patient would at least know what had been said about himself, which would be better than the current situation where his records might wind up on somebody's table for endless hours of hearing. I agree with you that it is certainly possible, particularly in psychiatric cases, that this would be a problem. *

(2000) Mr. Guizar Cheema (The Maples): Mr. Gabbert, thank you for your presentation. I have a few comments, some observations and some practical experience I want to share. First of all, I would go into the comments you have made regarding the pattern of practice. It is my understanding the pattern of practice is judged on the basis of the number of years practised. You are put In a special group where you are a graduate and which part of the city or the province you are practising medicine.

If somebody is doing more psychotherapy and some physician is doing more psychiatry or psychogeriatrics or assisting more surgery, it is my understanding, by way of writing to the Health Services Commission, that problem can be easily avoided. I know some people have done it. I do not think that is a major problem in terms of the pattern of practice. I think the problem Is going to come eventually when our population is going to age and we may, some physicians-as the Minister of Health (Mr. Orchard) will recall, we had one incident that was from Transcona.

One of the physicians did not fall Into the normal variation of practice, and he was asked to review his pattern of practice. I think there are few individual circumstances, but most of the time if you notify the Health Services Commission, I think the problem can be solved. The other issue ab out the confidentiality information is a very important one, as you have pointed out. As you know, the Medical Review Committee has to have a member from the College of Physicians and Surgeons, from the Manitoba Medical Association and one member from the Health Services Commission. Under the present act even, under

Section 38 as you have said, the College has the authority to go into any office if they fin d the pra ct ice is no t-so mebody is complaining-and if there is enough reason to believe that practice does not fit into the normal variation and not providing a quality of care. As long as we have a member from the College of Physicians and Surgeons on the committee and a member from MMA-and MMA does give their own member. I do not think the minister and the ministry of Health is going to select any member. The member is given by the MMA. A member is given by the college and you have a third member.

I think the approach can be taken in a very reasonable fashion. What we have to, in this Assembly-and you know what happened last year. There was one or two labs who were abusing the taxpayers' dollars. That is the intent, to protect any person or a group of persons who is abusing tax dollars. If physicians-as you said, the majority of them are going to do their best possible to provide quality care. In that way, I personally do not find any difficulty, as long as we have the College of Physicians involved in the whole process.

The MMA is involved in the whole process and the Department of Health is involved as an equal partner. They can go, and basically their procedure is you have to just first let them know you do not fit in the normal variation. Then you go and have the other investigation done. I would like to know, from your point of view, why, as a practising physician I would have no difficulty if I am falling in the normal variation. If I have a different pattern of practice, if I notify the Health Services Commission in advance, the problem can be solved. As I said earlier, it has been the case in many circumstances.

I am aware of a few of them, personally, out of one of the hospitals and out of one of the groups. I would like to know your comments, if we could have the College of Physicians and the MMA involved in the whole process, why would we, as professionals, be afraid of having to have our practices examined from a point of view to protect the quality of the care we provide in this province? Mr. Gabbert: Mr. Chairperson, well, first of all, obviously a comment about

Section 38 of the medical act, we are not here to revise the medical act. If somebody asked me how it should be revised, I would say that much of what we have suggested should probably be written into it with respect to protection for confidentiality. I do not think it is very good on that score, frankly. I mean, it is one thing to have a consulting physician examining a patient's record for medical purposes; quite another to have the most well-known member

17 0 LEGISLATIVE ASSEMBLY OF MANITOBA July 17 , 19 91 of the College of Physicians and Surgeons simply come and inspect your patient's records uninvited. The other thing, I would say this though, it is not my place here to talk about how to define patterns of practice, or how the matter of patterns of practice should be dealt with by the Health Services Commission with respect to defining those patterns, and so on.

My concern here is not with whether physicians are happy being scrutinized by a tripartite Medical Review Committee; my concern is under what circumstances, and at what point is an investigation of patient records triggered? That is what I am concerned about.

You may be quite right about this, nine times out of 10 these things may be worked out, but nevertheless the possibility is foreseen here of a situation where things will not work out that way and where further investigation has to be undertaken, and the language that we propose for 74(1) is designed to give the patient some protection from a kind of hasty resort, a hasty resort to the investigation of patient records when, in fact, the matter might be settled with other kinds of information being gathered.

So, once again, I know your experience as a medical practitioner is something I cannot share; I am not a medical practitioner myseH. What I am concerned about though are the circumstances under which patient records can be accessed, and I think more protection needs to be built in here than exists now. Mr. Cheema: Mr. Gabbert, the concern-as you know, with the HIV infection the confidentiality is protected, and if the coding as you have suggested and some kind of numbers could be used, I think that problem could be solved.

But still it is a new process and I think we may come across certain difficulties, but as long as those lines are clear and as you have pointed out, I am sure the minister has taken notice of your comments. The other issue that I want to point out here is the appointment of a committee to go into an office and look at the financial aspect and also the records and everything else and saying with a reasonable time. I want the minister to let us know what is a reasonable time and how do you inform a person that we are going to go to your office and examine you.

What kind of time frame is going to be given to a particular physician, or a group of physicians to know that such an investigation is in progress? Because most of the physicians have a person working for them, or two or three are on the staff, I do not think the services commission should go into private matters, other than pertaining to the quality of medicine. I think that is the issue, I think we should differentiate those two issues very well.

If the service commission is worried about the burden of practice, that is fine, but to look into the other aspects of a physician's role in terms of how he runs his practice, how he has his payroll done, how his appointment book is being kept, in order or not, I think we are going too far in that respect and I would need some clarification. I would just like to know your comments from that point of view. Mr. Gabbert: Well, I doubt if either the minister or I know what the convenient time for any physician to be in vestiga ted by the He alth Services Commission is, probably never if you asked them.

Our particular concern is with the sort of generality of the language in 75.2 and 77(2)(a). We wantto be very certain that the materials that the inspectors are supposed to have access to, that material is administrative and financial and not patient records. Now I think it is partly implied the way it is now, but it could be very clearly stated, and anybody, as I say, who knows anything about legal wrangles knows that where there is a little bit of vagueness of language, there is always the possibility for a squabble.

In the meantime, you see, you might have a situation where inspectors came down from the Health Services Commission and boxed up everything in the office and took it away to be copied. Unless it is perfectly clear in 75.2 that what they are supposed to copy is financial and administrative records, there is always the possibility that patient records will be netted, and that is why we have tried to insist here that 77(2)(

b) be the only part of the act in which the patient records are involved. Thank you. * (201 0) Hon. Donald Orchard (Minister of Health): Mr. Gabbert, I want to thank you for your brief because you bring a number of valid concerns that individuals might have because we have always wanted and assumed that our medical records were inviolate, in terms of outside inspection. I think though, sir, that most of the concerns you have raised are either in terms of confidentiality are protected in terms of Bill 4 and the amendments, or

July 17 , 19 91 LEGISLATIVE ASSEMBLY OF MANITOBA 17 1 in provisions of the existing Manitoba Health Services Commission legislation. Now I would just like you to be aware, sir, that the Medical Review Committee is not a Manitoba Health Services Commission effort, it is tripartite- Mr. Gabbert: I am aware of that. Mr. Orchard: -between the MMA, the College of Physicians and Surgeons and the Manitoba Health Services Commission making appointments to the Medical Review Committee.

The history behind these amendments is that several years ago, I think possibly three to four years ago, the MMA made the legitim ate case to government thatthe Medical Review Committee, as structured under the existing legislation prior to the amendments of Bill 4, acted as both judge and jury, and they suggested that that was inappropriate, and everyone agreed. We have been operating the Medical Review Committee with only participation by the College and the physician appointees by the Manitoba Health Services Commission.

It is only with these amendments which separate through the Medical Review Committee process and the Formal Inquiry Committee, that we have been able to separate the two functions.

So the investigation is done by Medical Review Committee and then any potential requests for recovery, or any penalties are imposed by the Formal Inquiry Committee, so it is two-staged, and both the college and the MMA were partners, if you will, in drafting these amendments and signed them off, if you will, and appreciate that the college has a very, very important role in protecting confidentiality as does the MMA on behalf of their practitioners.

That is why I have some confidence in saying that not only the amendments in Bill 4 but the existing provisions within the act provide for the kind of confidentiality that you wish to see. On a second point that you made about possible nefarious requests for records, i.e. you see someone who is out of a practice pattern and some zealous individuals potentially at the commission could demand the records. That again, sir, is covered off from the process that has been in place.

The Medical Review Committee does on a routine matter call in an Individual practitioner to have them justify why their practice pattern may appear to be out of the norm, if you will. If there are legitimate reasons why, that ends the matter. For instance, you might have a f amily practitioner, single physician in a rural community of 1 ,500, 2,000, 3,000 without a physician for a number of years that within a year builds a very, very large practice by working many, many hours.

That might be outside of normal family practitioner billings but justifiable by the fact that he is a single practitioner in an area with no previous practitioner. So that matter is settled. There is no request of records. It is only where the physician does not make a legitimate case to the Medical Review Committee, which is represented by MMA, college and commission by physicians, all physicians, that it then moves into the second stage of investigation. At that point, any records that are requested assure patient confidentiality in all circumstances.

It is only if the Medical Review Committee makes a decision that the practitioner should be required to pay back, or whatever the action, it is only then that the case is moved to the second step of the Formal Inquiry Committee, again made up by members of MMA, college and physicians appointed by the MHSC to then determine what might be the penalty or rep aration requi red. Agai n, the same confidentiality is required.

As a matter of fact, the commission is under strict requirements in terms of release of information that it cannot be identified as to the individual, so I think-and my critic from the New Democratic Party pointed out a couple of the existing clauses in the bill which require the hearings to be in camera, in private, not public, which is sort of a deviation as to what we just dealt with with the pharmaceutical association, and also the requirement of confidentiality of records. So your points are valid, and I think that they are, in fact, covered by existing and the amendments that are proposed here tonight. Mr.

Gabbert: I appreciate those comments, of course. Just let me make a couple of responses. First of all, of course, I am aware that the MMA is very pleased about the way in which the Medical Review Committee is being revamped by this legislation, and it seems hard to disagree that it is an important reform. With respect to your second set of comments, I would just say that I am not satisfied that patient confidentiality is adequately protected on the grounds that you have stated.

I do not think, for example, that it is acceptable to draft legislation of the sort you drafted in 71 (4) which deems patients to have given up the rights to their medical records

17 2 LEGISLATIVE ASSEMBLY OF MANITOBA July 17 , 19 91 upon receipt of insured services. I do not think it is adequate to have a situation where patient documents can be present ed to deliberative committees without first being free of all identifying material. That is not provided for in the current situation. I think that if, indeed as you say-1 know that the Formal Inquiry Committee has to take all identifying material out of its final report-fair enough.

The Formal Inquir y has to hav e its hearing in private-fair enough-but, as I said before, in the course of those hearings, there is highly confidential patient information potentially on the table which, to my mind and as far as we are concerned, does not need to be there. The second thing I would point out is that we did make quite a point here, quite a point of the importance of special provisions for confidentiality for psychiatric patients, and there is no question that this legislation does not address that at all.

I would say also that our particular version of 71 (4) requiring, as it does, reasonable and probable cause if there are difficulties and requiring that the committees in question show that the public interest will be served if an exception is made to patient rights.

If indeed what the minister says is correct about the clear evidence that arises at the end of the Medical Review Committee hearing, then there should be no problem writing in language which requires the Medical Review Committee to show that there is reasonable and probable cause to assume a violation, that the public interest is at stake and that, then, patient records should be accessed. I think that is a very important difference from what is being proposed here.

With all due respect, I would have to say I am a great believer in tripartite arbitrations about all kinds of things, but the reality of it is that there are arbitration committees and arbitration committees, and all kinds of difficulties can happen in the course of these procedures. There just has to be protection for the people who are basically innocent bystanders in all this. *

(2020) As I tried to point out to earlier questioners, I do not think that the language that is here presently, even though obviously it does prohibit people from divulging confidential information to people who are not legally entitled to do so, I simply cannot agree that it solves the problem of the expanding number of individuals who have knowledge of patient records and will certainly have knowledge of patient records if they are not properly altered before the committees have a chance to look at them.

I do not-that identifying material deleted, and I do not see how patient interests are protected by writing into this bill a Clause 71 (4) of the sort that is being proposed here which simply gives the Medical Review Committee carte blanche at any point. The language-it may be as you say, Mr. Orchard, that this is the way it happens, and probably nine times out of 10 maybe that is the way it happens, but the language in the law actually allows the Medical Review Committee to access patient documents when it sees fit. Frankly, I do not think that is an adequate protection for patient confidentiality.

I simply have to disagree on that score, and I do not see why if you are convinced that there is reasonable grounds at the end of an MRC hearing, that it would be any problem for you to show it under the language that we have proposed here for 71 (4). Mr. Chairman: Thank you very much, Mr. Gabbert. Bill 69- The Manitoba Medical Association Fees Repeal Act Mr. Chairman: It has been brought to my attention that we have a presenter who is from out of town. Is it the will of the committee to hear this gentleman? It is on Bill 69; Dr. Jim Ross. Agreed? An Honourable Member: Agreed. Mr. Chairman: Agreed.

Do you have a written presentation? Just wait and we will just get it distributed. You may proceed. Dr. Jim Ross (Menltoba Medical Association}: At the outset, the MMA wishes to make clear our opposition to Bill 69, the repeal the MMA fees act. The MMA fees act becam e law in 19 86 in recognition of the role played by the MMA in representing all Manitoba physicians, members and nonmembers, in terms of fee-for-service negotiations. These negotiations greatly influence salary schedules and ultimately benefit all doctors across the board. However, the negotiation process is often very costly for the association.

It is only fair that those who reap the rewards should pay their fair share of the costs involved. The MMA is much more than a negotiator for Manitoba physicians. There are other key reasons why payment of MMA dues was made mandatory. MMA investigations into the issues of medical

July 17 , 19 91 LEGISLATIVE ASSEMBLY OF MANITOBA 17 3 manpower, medical care utilization, high technology medicine and fee income disparities involv e extensive original resear ch. Ultima tel y all physicians, not to mention the public, gain by having collective input into the development of health care policy in Manitoba. The MMA Physicians At Risk program is for the benefit of the entire medical profession. Doctors who suffer from chemical dependency, emotional or other problems receive valuable assistance from their colleagues through this program.

In many cases, problems are resolved before they become severe or precipitate major crises. The MMA Council on Health Care co-ordinates the activities of standing committees active in health promotion and disease prevention. Committees include child health, public issues, sports medicine, emergency medical services, aboriginal health and an ethics committee. These committees have assumed a leadership role in tackling major health care issues to the benefit of physicians and patients alike.

Currently the MMA funds and directs, either in co-operation with other groups or entirely on its own, three major health public awareness programs. The first, the highly visible and effective antismoking lobby; the second, promotion and advocacy for the use of bicycle safety helmets, particularly for children; and third, a televised campaign to alert both the public and physicians to the dangers of alcohol consumption during pregnancy. The latter, Fetal Alcohol Syndrome campaign, has drawn the attention of the Surgeon General of the United States of America.

Recently the association has gone on public record supporting efforts to preserve and protect water qual ity in Ma nitoba, lobbied for a government-sponsored needle exchange program to reduce the spread of infectious diseases and suggested nonlegislative mechanisms to control solvent abuse. The Emergency Medical Services Commi ttee has produced and distributed rec omme ndations on emer gency drugs and equipment for physicians' offices. The Sports Medicine Committee has issued guidelines on safe water activities for pre-school children.

MMA funding for these types of programs for 19 91 -92 will be at its highest level ever, despite a projected drop in revenue for the association. Claims that Manitoba physicians never supported compul sory dues is incorrect. A majority of Manitoba physicians supported compulsory dues in the November 19 85 ballot. Of the 58 percent of those eligible to cast ballots, 53.6 percent voted yes, 46.4 percent voted no. Today, support for the association is overwhelming; over 88 percent of licensed physicians in Manitoba are voluntary members of the association.

Compare this to the support garnered by the present Conservative governmen t in the past provincial elec tion. Sixty- nine percent of those eligible to vote cast ballots, 41 .9 percent voted for the Conservatives, while the combined votes for the two opposition parties totalled 56.8 percent. On April 9, 19 91 , the present government authorized the Manitoba Hea lth Ser vices Commission to conclude a formal agreement with the MMA on behalf of all the province's practising physicians.

Article 2 of that agreement reads: For the purpose of negotiating and concluding an agreement contemplated by

Section 7 4 of the Act, the Commission recognizes the Association as the sole and ex clu sive bargaining agency for all fee-for-service practitioners in the province of Manitoba. Articles 13 , Vol ume Review, and 14 , Fee

Schedule Reform, provide that the MMA and the Manitoba Health Services Commission jointly contract with consultants to undertake studies and make recomm endations for discussion and implementation by the parties. Based on the estima tes alr eady received by in teres ted consultants, these studies could cost the parties as much as $400,000. Since then, the government, without consultation, has arbitrarily decided to repeal the MMA fees act, this despite the fact of their recognition of the association's pre-eminent role in bargaining and the knowledge that the jointly funded studies are very expensive.

It appears to be a deliberate attempt to undermine MMA's financial stability and security and a means to take revenge on the association proposing the government's plans last year to further ration medical services. In summation, the MMA strongly opposes repeal of the Manitoba Medical Association fees act. We believe the association, as the recognized exclusive bargaining agent for all fee-for-service medical practitioners in Manitoba, benefits all physicians equally, whether they choose to be members or not. In addition, all physicians benefrt from the many MMA funded health programs. It is only fair that

17 4 LEGISLATIVE ASSEMBLY OF MANITOBA July 17 , 19 91 those who benefit from the association pay their share of the costs. Finally, to initiate reform and improvements in our health care system, the active participation of physicians is critical. The MMA is seen by Manitoba physicians as their primary spokesman in these matters, and the arbitrary action taken by the present government may seriously undermine the spirit of co-operation which is required between government and physicians in this province. Thank you. Mr. Chairman: Thank you, Dr. Ross. Mr.

Gary Doer (Leader of the Opposition): Yes, thank you very much, Dr. Ross, on the presentation before us tonight. I would cer tainly li ke to congratulate the MMA. I have had the opportunity to see your latest television campaign alerting the public on the dangers of alcohol consumption during pregnancy, and I thought the ads were very, very helpful to the public interest. I have looked forward to the presentations from the MMA on other bills and other issues that we have worked together on.

I know the smoking bill was something that the MMA worked on very carefully when we moved private members' bills and other issues of public health, the most recent of which is the banning on the Shoal Lake watershed. The brief really does raise the issue of percentage votes. It is something I heard the last time when people were dealing with Ronald Reagan, saying only 27 percent really voted for him with a 50 percent turnout. One of the rationales the minister has used repeatedly is about the whole issue of percentage votes of less than 1 00 percent turnout.

Do you think that the arguments the minister has used to justify the repeal of the former bill are fair comparisons?-the rationale being used that only X percentage actually voted because of the turnout, something, of course, we do not use for ourselves in our democracy, as you have pointed out in your brief. Mr. Ross: No, absolutely not. I would say there are many people probably sitting around that table right now who did not win by a whole lot of votes. Some won by a whole slew of them. If we could get 1 00 percent of the people voting every time, it would be a wonderful situation.

I think we would all agree on that, but reality just does not take place. We do not accept that argument, no. *

(2030) Mr. Doer: Yes, you mention in the brief quite clearly that you consider this to be a revenge act. I read your

article in the Medical Post. You called it, again, vindictive and other words like that. Is it the perception of the MMA executive that this bill is motivated by a government's desire to even an old score, as they feel it, in terms of last year's campaign ads that were in the Premier's riding, as you mentioned in the Medical Post, advertising campaigns to articulate your position? Is that the feeling of the MMA executive, that that is the primary reason for introduction of this bill? Revenge is a very strong word. Mr. Ross: We can see no other reason for it. It came out of the blue.

Has there been any public outcry for this? Has there been any physician outcry for this? Certainly not to the knowledge of the MMA. Mr. Doer: Well, I have had no constituents calling for the repeal of the bill before, I can assure you, and I have had no doctors or physicians saying the same thing. Mr. Chairperson, what reason did the minister give your association? You mentioned, again in the Medical Post, that you were not consulted on the bill, but at the end of a meeting, the regular meeting you had with the minister, he did not consult you on it. He informed you of the government's intent, as I understand it.

Could you articulate for us what reason the minister gave the MMA for this move? Mr. Ross: Well, you are precisely correct. It was stated to Dr. Cleghorn and myself, when we met with Mr. Orchard in our last meeting, at the very end of the meeting that this bill was coming into being and would be repealed. The reason he gave us at that particular time was he did not like the bill when he was in opposition; he does not like it now. Point of Order Mr. Gu izar Cheema (The Maple s): Mr. Chairperson, I just wanted to declare that I am in a conflict of interest with this bill. I did not speak inside the House.

I have to leave until the presentation is finished. Thank you. *** Mr. Doer: I thank the doctor again for the very disturbing answer in terms of the rationale of the government.

July 17 , 19 91 LEGISLATIVE ASSEMBLY OF MANITOBA 17 5 The Rand Formula I think was granted in the late '40s, if I am not mistaken. It is a little bit after the Second World War. Sometimes we feel that is the presence of our dealings with the pr esent government, my bias in saying that in dealing with these kinds of issues. What is the status of other organizations with doctors In the country? I think the Ontario Medical Association has at least, as I understand it, the Rand Formula. The other provinces- where is this for the MMA relative to other provinces?

I know we should have a made-in-Manitoba solution to this to begin with and we should deal with the principles on a Manitoba basis to start with, which I thought we had a few years ago. Where are we relative to other medical associations in the country? Mr. Ross: As you stated, the OMA was just recently granted compulsory dues. Virtually every other medical association in this country either has it or wants it. It is that simple. If they do not have it they want it. Mr.

Doer: Will this mean that the MMA now, because it has been disenfranchised by legislation after having a vote, will have to spend considerable money that is presently being used for positive public health programs, like the fetal alcohol program-wi ll this mean that the money now will have to go, the money you have, the resources you have in your organization, will be taken away ironically from health care and preventative public health programs and moved into organizational considerations? Mr. Ross: The answer is no.

We are going to have a very substantive increase in our dues this year, coming up August 1-o r at the end of August, excuse me. The answer is no. As stated in the brief, we have allocated even more money this year to the council on health care than we have in the past. We are very committed to the public health care issue situation, so we will absorb that cost from our dues themselves. So we are not going to shift our public duties into the finance or fiscal line. Mr. Doer: I thank you for that answer.

The minister, of course, reports to a Premier. was wondering whether the MMA has asked for or secured a meeting with the Premier (Mr. Rlmon) of the province to try to ascertain the rationale of the Minister of Health (Mr. Orchard) for this backward piece of legislation before us today. Mr. Ross: We have not, no. Mr. Doer: Have there been any attempts of the MMA to talk to other MLAs on this matter? I am just a little bit worried that we are going backward without any positive impact from the public of Manitoba. Have there been any other attempts, or just basically relying on the Minister of Health on this bill?

Mr. Ross: Basically relying on the Minister of Health. We realize this is an issue between ourselves and government that does not really have much potential public Interest, so there has been absolutely no attemptto involve the public or anyone else on this issue. I think a number of individuals probably have spoken to their own MLAs, but we have been dealing just strictly with the Minister of Health. Mr. Doer: Thank you very much. Mr. Nell Gaudry (St. BonHace): Dr. Ross, firstly I would like to, on behalf of our party- Mr. Chairman: If you could bring your mike a little closer. Mr.

Gaudry: -1 would like to say thank you for your presentation. How will this bill affect the ability to function to provide quality care to Manitobans? Mr. Ross: I am sorry. Could you just repeat that? Mr. Gaudry: How will this bill affect the ability to function to provide quality care for Manitobans? Mr. Ross: I do not think it will affect it in any way whatsoever, sir. As I say, this Is a means of garnering money for the MMA. Let us not kid ourselves. We are willing to increase our dues to make sure the organization functions as well as it has in the past or even better. Mr. Gaudry: Mr.

Chairman, did the minister consult with your association before presenting this bill? Mr. Ross: No. Mr. Orchard informed Dr. Cleghorn and myself at the end of a meeting that we had with him that the governm ent was planning on introducing this legislation, full stop. Mr. Gaudry: Dr. Ross, do you think this is a punishment for this bill for binding arbitration? Mr. Ross: Well, I do not know whether it is necessarily for the binding arbitration situation as we see it.

We cannot see any real good rationale for introducing this particular piece of legislation at this point In time, when we have taken the very most contentious issue between ourselves and the

17 6 LEGISLATIVE ASSEMBLY OF MANITOBA July 17 , 19 91 government-that is the negotiation for the fee package for fee for service physicians-we have taken that and we have put it on the back burner, if necessary, through an arbitration mechanism. When I became president in April, I was sincerely looking forward to better relationships with the government-! will be very honest-because we have taken this major issue for which we are always fighting. No matter which party is in control, we are always fighting with governments over this issue.

Here we have taken it and we have agreed that a third party can decide it if necessary. Here we come up with this particular piece of legislation, which we must confess we find somewhat aggravating. Mr. Gaudry: Will this bill, Dr. Ross, affect your relationship with the government and the minister? Mr. Ross: It has not improved it. Ms. Judy Wasylycla-Lels (St. Johns) : Mr. Chairperson, I would also like to thank Dr.

Ross for taking the time to be with us this evening and make a presentation on what we consider to be a very important bill before us and a very harmful one in terms of progress that has been achieved over the years. I appreciated particularly the reference in this brief to the percentage of doctors who supported this principle back in 19 85 and your comparison to the 41 .9 percent who voted for the Conservatives in the last election, which led the Premier of the province to say, a majority is a majority is a majority. It seems to me that your percentage is much higher than that: 53.6 percent.

I hope the minister remembers the words of the Premier and the principles behind majority decisions. I would like to ask if you feel that you have at least that percentage of doctors with you today when It comes to mandatory fee collection or in fact whether or not you think it would be lower or higher. Mr. Ross: My guess is that it would be much higher today, but that is just a guesstimate. •

(2040) Ms. Wasylycla-Le ls: Di d the mi nister ever suggest in-1 was going to say consulting you on this matter, but you have indicated there was not much consult ation-did he ever suggest that perhaps he would like to see another vote from the MMA before he moved on such a decision? Mr. Ross: No. Ms. Wasylycla-Lels: I would like to go back to 19 85, when this agreement was reached in terms of the MMA and where it was part of an overall agreement between the MMA at that time and the then Minister of Health, the Honourable Larry Desjardin.

I have before me a copy of the Memorandum of Understanding between Larry Desjardins and Dr. Derek Fewer, President of the MMA at that time. I am quite amazed at the kind of overall co-operative , consultative approach that happened at the time. So many times people have suggested that we in the NDP have not been very good at co-operating with the doctors. I am quite amazed that there is a fairly solid history on this matter, In fact, I think probably a much better record than is presently the case with the presen t administration .

That document refers to a number of agreements involving discussions about reduced health care costs, in terms of grappling with the remuneration system, in terms of the fee schedule, In terms of new technologies. The list goes on and on. I am wondering first of all if that agreement back then did signify some new approaches and an Indication that the MMA was prepared to sit down seriously with the government of the day, whatever government, and discuss health care reform. That is one part of the question. The other

part Is, what has the current decision on the part of this government to repeal this act done to overall discussions and the need to work collaboratively on some very serious health care issues? Mr. Ross: We con tinue to work with the government on a number of issues. As part of our most recent contract, we are bound to study volume and we are bound to study the fee

schedule reform. We still have not come up with a suitable consultant. Neither party has come up with that. We continue to work with government. There is no question about that, and we will continue to do so. I think that if one looks back historically, the MMA and the government have gotten along for brief periods of time. We are being very honest with you here. We are probably in a warlike stance more often than not. As I say, this is just one thing.

As I said earlier on, when you take the major bone of contention out of the equatio n, why do we throw these little aggravating things in here right at this point in time? Ms. Wasylycla-Lels: How were you consulted on this bill? Were you asked for your opinion? When was it revealed to you?

July 17 , 19 91 LEGISLATIVE ASSEMBLY OF MANITOBA 17 7 Mr. Ross: I think I have stated this a couple of times. We were told about this bill at the end of a meeting that Dr. Cleghorn and I had with Mr. Orchard, I am guessing, what, six to eight weeks ago, in that range. It was simply a statement of fact that the government was going to introduce legislation to repeal the MMA fees act. That was the end of the consultative process. Ms. Wasylycla-Lels: Was it at that same meeting that the minister revealed his list of items he intended to deinsure? Mr.

Ross: Yes, we discussed that earlier in the meeting, had a very long discussion with respect to that, and then this came just as we were literally walking out the door. Ms. Wasylycla-Lels : Jus t on the issu e of deinsurance, because I think all of these issues are related, have you ever been asked for detailed medical scientific analyses of these decisions on the part of the government to deinsure a number of services? Mr. Ross: I have spoken with Mr.

Orchard with respect to that during that meeting but, in terms of our detailed response, we have responded to him with respect to that saying we are not in agreement with the deinsurance. As I said, there has never been a sit-down meeting to discuss the absolutes of everyone. We have discussed it in broad detail I think when we met with Mr. Orchard. Ms. Wasylycla-Lels: I know you probably have to leave because you are out of town, and it is unfortunate, because we are going to go back to Bill 4, The Health Services Insurance Amendment Act.

While that bill does not directly deal with de insurance, it certainly begs the question, where is the sound medical evidence backing up the minister's and this governme nt's decision to deinsur e so many medical serv ice s? I am wondering, have you any strategy or will you be attempting in any way to convince this government to reconsider its decisions around deinsurance? Mr. Ross: Yes, we will. Ms. Wasylycla-Lels: I just wanted to thank Dr. Ross for his presentation and for making the position of the MMA so clear tonight. Hon. Bonnie Mitchelson (Minister of Culture, Heritage and Citizenship): Thank you, Dr.

Ross, for your brief and your presentation. I just have one question. I want to ask you if the repeal of this legislation in any way prevents any doctor who wants to belong to the MMA from joining and belonging? Any doctor who does want to pay association fees to the MMA will still be able to do that? Mr. Ross: Absolutely. All this bill does, of course, is take the compulsory component out of it. As we have said, 88 percent of doctors now belong to the association anyway, so you are looking at 10 percent to 12 percent who potentially may not join. Hon. Donald Orchard (Minister of Health): Mr.

Chairman, I just want to thank Dr. Ross for coming in and indicate to him that I guess there has been substantial questioning about the consu ltation process. Would it be fair to assume, Dr. Ross, given the opening paragraph, closing paragraph of your brief that you would have changed your position on Bill 69 had we consulted? Mr. Ross: No, our position is we like the legislation that is in place right now. We would not like it if it was taken out, no matter how much consultation was undertaken, provided you did not change your mind, Don. Mr. Orchard: Mr. Chairman, I want to thank Dr. Ross for that.

Although we are temporarily agreeing to disagree on this, I think Dr. Ross has made the point that 88 percent of physicians now belong to the MMA and, as Dr. Cleghorn has indicated, probably the financial impact In terms of paid dues will be minimal. I simply want to indicate to Dr. Ross that I look forward to his term as president so that we can work on some of the larger agendas that I think are mutually beneficial. Mr. Doer: Well, the government is making some points, or trying to make points about compulsory versus noncompulsory.

I would ask the doctor, the 12 percent who do not pay their dues and are not required to be part of the MMA, will they get the same fee

schedule increase that is- Mr. Orchard: No, no, they pay their dues. Do not be silly, they pay their dues Doer. You made sure of that in the legislation. Mr. Ross: As it stands right now, everyone pays dues to the MMA- Mr. Doer: Under the Rand Formula. Mr. Ross: If Bill 69 is repealed, those who choose not to pay to the MMA will not have to pay the MMA. In response to Mr. Doer's question, absolutely. We cannot negotiate for only members, and those,

17 8 LEGISLATIVE ASSEMBLY OF MANITOBA July 17 , 19 91 whatever percentage of individuals they are, who do not pay dues benefit the same amount as members do. Mr. Doer: So the 12 percent that do not pay their dues to the MMA but pay dues to some other body will, in fact, be receiving the benefits of the MMA and its executive and its volunteers and its staff obtained on behalf of physicians and patients in Manitoba? Mr. Ross: Absolutely. Mr. Doer: Thank you very much. Mr. Chalnnan: Thank you very much, Dr. Ross. Mr. Ross: Thank you. Can I just say one last statement? The amount of money that the MMA- Mr.

Chairman: Order, please. Dr. Ross may continue. Mr. Ross: Thank you very much. Mr. Orchard made the inference that the amount of money would not be substantial. It is fairly substantial when you look at 1 0 percent of the physicians and we are paying $600 a year now in dues, so the amount of money is fairly significant. Thank you very much for the opportunity to present to you. Thank you for hearing me early and I apologize to everyone else who has waited very long, thank you. Mr. Chalnnan: Thank you, Dr. Ross. Bill �The Health services Insurance Amendment Act (Cont'

d) Mr. Chalnnan: We will now tum back to public presentations on Bill 4. Mr. Anthony Dalmyn. Your brief is being distributed. Mr. Anthony Dalmyn (Advocates' Society of ManHoba): I left copies with the clerk, Mr. Chairman, and it is being circulated at the present time. Mr. Chalnnan: You may begin, Mr. Dalmyn. Mr. Dalmyn: I will express my thanks to the committee in advance and my admiration for the committee's work. I have great respect for anyone who can wear a suit or a tie in this weather. When mosquitoes come out, I suppose we will see the truism of Winston Churchill saying about blood, sweat, toil and tears. *

(2050) At the beginning I will outline my presentation. The purpose of my presentation is to introduce the Advocates' Socie ty of Manitoba. I have to immediately apologize and explain that I cannot officially represent the position of the Advocates' Society of Manitoba. The Advocates' Society of Manitoba is a new organization formed only last winter. We do not yet have a legislation committee th at moni tor s new bills.

We only recently appreciated the implications of Bill 4 and we found that half of our executive committee were tied up in the hearings of the Hughes Inquiry so we have not been able to formally authorize a presentation. Nevertheless, I have been requested, and I have the support of certain members of the society, to bring this brief before you. I am going to be directing your attention to certain sections of Bill 4 which deal with the concept of subrogated recovery. It is technical so I will try to make a brief expl anation of the practice of subrogated recovery and then examine how Bill 4 imp acts on that.

I do not hav e strong recommendations for the committee. I can only point out some of the actual and possibl e implications of these new practices that are emerging if Bill 4 passes unchanged. (Mr. Ben Sveinson, Acting Chairman, in the Chair) The Advocates' Society was formed over the past spring and winter. Its membership is limited to lawyers practising in the civil courts with over five years experience. It presently has over 90 members which represents a substantial portion of the senior and intermediate civil litigators in Manitoba.

The purpose of the society is to advance the interests of the bar, or the part of the legal profession that practises before the courts, and to try as far as possible to advance the public interest in that fashion. Part of the purpose of the society is collegiality of the bar. We do not represent plaintiffs or victims, we do not represent defendants or insurance companies. Specifically, we try to represent the bar and the public interest at large. The subrogated recovery provisions of The Health Serv ice Insurance Act are not new. Subrogated recovery is an old concept developed in the courts.

It is an insurance law concept; it says that someone cannot recover twice. If you carry an insurance policy and you are paid by your insurance policy and then you go after the person who caused your harm and you recover from that person, you cannot recover twice. You hold in trust for the insurance company and have to pay back the excess.

July 17 , 19 91 LEGISLATIVE ASSEMBLY OF MANITOBA 17 9 When the Health Services legislation was first introduced, it adopted the concept of subrogation. If someone is Injured in an accident where there is an identified wrongdoer, a legal claim or cause of action, the commission will incur medical and hospital expenses. The legislation,

Section 97, says that the injured person has the right to claim the medical and hospital expenses in a law suit on behalf of the commission and then to account for those to the commission. It also says the individual has the right to decline to represen t the com mi ssion's in terest, in whic h cas e the commission represents its own interest. As the legislation is presently drafted, an injured party or the commission can present a claim for past or already incurred hospital and medical expenses and also future medical expenses.

In practice, however, the commission has not been pursuing the recovery of future medical expenses or only in isolated cases. In practice, someone is Injured, someone retains a lawyer, the lawyer contacts the commission, and the person and their lawyer either agree to represent the commission's interest or they do not and the commission protects its own. Where you agree to protect the commission's interest, the com mission provides you with reporting letters outlining the past or already incurred medical and hospital expenses. These letters are pretty well accepted by the courts.

It is rare or almost unheard of for members of the commission to have to come and testify or for any extensive court time or testimony or costs to be associated with the proof of the commission's claim. We have a system that operates very well.

It operates well not only from the viewpoint of the convenience of the courts or the money out of pocket for the people who are paying lawyers, it operates well in the public interest in that a lot of commission expenses are recovered routinely, and the losses that are incurred through accidents are put on the people who are responsible for accidents and on their Insurance companies. One thing that has emerged as a problem is what happens when a case is settled. In some instances, cases are settled on the basis of a percentage recovery. We have a contributory negligence law in Manitoba.

If the injured party is partly at fault for his own injuries, his recovery is reduced. The act says the commission's recovery is going to be reduced. In some instances, we enter into a somewhat different situation. You can see an injured party saying, my lnJunes are worth every penny of $500,000. The medical bills and hospital expenses come to a further $1 00,000, so you have a total loss of $600 ,000. The defendant, the ins urance company says, I will not pay a nickel more than $500,000. The Injured party is not prepared to take the case to court.

The injured party has concerns about losing and would rather take a bird in the hand than worry about $600,000 in the bush. Who loses? Does the injured party reduce his recovery or does the comm ission reduce its recovery? I am assuming for the moment there are infinite funds available and we are not dealing with limited funds. The commission's current policy is to prorate. I understand they have prorated in some very serious and important cases.

The second scenario-and it is unfortunately a fairly common scen ario-you take the same $500,000 of injury, a devastating injury to a victim, and $1 00,000 in medical expenses, but it happens to be the result of a car accident where the defendant carried the Autopac minimum of only $200,000. The current practice, and I think it is a good practice, is that the commission generally waives its accounts. The injured party among his $500,000 will have a numb er of hard-core expenses, future care expenses, future loss of income, renovations to a house or building, and the commission is inclined to waive its account.

I have made inquiries among a number of lawyers and, in that scenario, serious losses with limited insurance and the defendant being insolvent, so there is no money beyond the insurance, the commission does at present waive its account. I come now to the sections of Bill 4 that begin to change the law. We see in Bill4 a change in

Section 97 of the act.

Section 97 Is the

section that defines what is to be recovered.

Section 97 as presently worded already covers future medical costs. What we see in

Section 97 is a beefing up, a redefinition of future costs, which I assume means the commission is now beginning to take a serious interest in the recovery of future medical costs. For the convenience of anyone trying to follow, you can look at the bottom of page 15 and the top of page 16 in Bill 4 and looking at the words of

Section 19 in the bill which repeal and re-enact

Section 97 of the act. As a practising lawyer and as a citizen, I cannot quarrel with the commission going after future

18 0 LEGISLATIVE ASSEMBLY OF MANITOBA July 17 , 19 91 medical costs. I can point out some problems for the practising bar in the recovery of future medical costs. Future medical costs can come up in a number of different scenarios. You can take someone who at age 25 suffers a broken leg. They are off work for six months to a year. They have been in hospital for perhaps one to two months and get some rehabilitation.

There is a medical report that says that there is a distinct possibility or a future probability that this person is going to develop osteoarthritis of the joint at age 45 to 55 and may need future surgery.

At present, under the legal principles that the courts supply, the courts have to try to assess the value of that chance, to first of all determine whether there is a real probability of future deterioration and, secondly, how much extra compensation that individual deserves in terms of possible future loss of income starting 20 years later or extra pain and suffering and loss of the enjoyment of life. * (21 00) When we begin to translate this to future medical costs, you run into some immediate and obvious difficulties. We know what the current cost of that type of surgery is.

We do not know the exact probability that that surgery is going to be needed. We do not have a clear pattern on the escalation of medical costs, although we do know that medical costs have tended to escalate well over the cost of inflation. (Mr. Chairman in the Chair) The court is going to be left with the task of evaluating this. The courts may be demanding actuarial evidence. You come back to the question. You have the injured party. He is paying a lawyer. The commission wants to recover its future medical costs. In the ordinary course, the plaintiff and his lawyer would not hire an actuary.

To hire an actuary may cost you $1 ,000 to $2,000 for a consultant's report. It depends on what is covered. Sorry, Mr. Chairman. Mr. Chairman: Mr. Dalmyn, we have a little recording difficulty behind you. If you would give us about two minutes, we have to change a reel-to-reel operation. Just a recess for about two minutes. Mr. Dalmyn: Certainly, Mr. Chairman. Thank you. Mr. Chairman: Thank you very much. *** The House took recess at 9:01 p.m. After Recess The House resumed at 9:05 p.m. Mr. Chairman: You may continue now, Mr. Dalmyn. Mr.

Dalmyn: I was at the point of discussing the hiring of expert witnesses and the front money to pay expert witnesses to start proving future costs. Depending on how the commission handles this, and I say it depends on how the commission handles this and it depends on the commission's budget, if the commission is ready to front the expenses, I expect the practising bar will not have a Jot of difficulty living with this.

If the commission is not budgeting for this or starts arguments with the lawyers who are presenting the main part of the injured victim's claim, we can end up with the lawyers saying to the commission, you will have to protect your own interests and prove your own past and future expenses which could possibly put some strain on the Legal Services branch, particularly if Legal Services branch is going to have to supply counsel to sit in through a joint trial in order to present the commission's part of the account.

Overall, my expectation is that the private bar, the commission and the bench of this province will resolve this matter. There may be a period of time after this legislation comes in where people feel their way through. There may be some test cases to elaborate on the principles to evaluate a claim for future services. This is, I would expect, going to work out, but it may have some unexpected ripples. As well, of course, once the commission gets seriously into the business of recovering future medical expenses, we are looking at a possible very large increase in court awards.

In some instances, there are serious long-term care needs that have to be funded by the commission. This is going to lead to larger awards, larger awards against the insurance companies and rate hikes. I think that is the natural consequence of pursuing the recovery of future benefits. It is the natural consequence of protecting MHSC's interest in advancing that component of the public interest. It would be desirable if there were a clear target or trigger date to avoid any uncertainty about retroactivity and to avoid any insurance rate shocks.

July 17 , 19 91 LEGISLATIVE ASSEMBLY OF MANITOBA 18 1 The second point in Bill 4 that I wish to address relates to the calculation of hospital costs. At the present time the act states that the commission may recover actual hospital costs. The calculation of actual hospital costs is somewhat of a mystery. As I understand it, there is an effort made to calculate average per-patient-bed-day costs. lawyers get accounts from different hospitals. The Health Sciences and the St. Boniface, which are large hospitals with multifarious facilities, you get pretty high figures.

You get something from Selkirk or Brandon that is somewhat lower. The hospital at Morris is somewhere very low. There have not been a lot of questions asked about it, perhaps because the out of province insurance companies are used to dealing with American health claims. There have been some problems.

One lawyer related to me a situation where a patient with significant injuries and brain damage was, on medical advice, in a hospital at Selkirk and the insurance company is raising serious questions as to why this person cannot be in a nursing home, why they have to pay the per diem for Selkirk, where does that per diem come from. * (21 10 ) The principle of actual cost is legally sound. What Bill 4 is going to give us is a deemed cost figure.

If the deemed cost figure is fair and reasonable and is determined in a rational manner, I would expectthat sophisticated litigators, insurance companies and the practising bar and bench would be prepared to live with it. If there is a sense that the figure is fictitious or that it fluctuates so that it is not truly related to the cost of care of patients in Manitoba in the facilities where they were treated, we are going to start running into some problems. The con cept of a figure establ ishe d by regulations, which is what is going to be introduced in the new subsection 3 of

Section 97, is not unreasonable if you can establish a proper mechanism for realistic costs . This is not something that is spelled out in the act. What 97(3), as proposed, refers to is regulations under

Section 59. At present,

Section 59-there are a lot of regulations under

Section 59 and under the act at large, but you cannot really identify those hospital regulations readily. Again, not a major problem, in view of the fact that the current practice seems to be working out. I think I can say fairly that the commission and the government might live without 97(3) for a few months until you think out the mechanism for establishing the regulations, unless those are already thought out very clearly. The third area that I wish to address is the enactment of the new

Section 99.2, particularly 99.2(1 ). At the beginning of my presentation I talked about the problem of inadequate recovery. At the present time, if you have a victim with a $500,000 claim and only $200,000 of available insurance, the commission has certain rights in principle under the act. However, the Supreme Court of Canada has held that under the principle of subrogation the commission's claim is postponed and the victim should be paid. What 99.2(1 ) appears to do is to take away, at the expense of the victim, in order to allow the commission to make a partial recovery.

I notice as a member of the legal profession that it protects the costs of recovery, which I assume means legal fees. I suppose the legal profession, in that sense, is protected. The fees of lawyers will be paid one way or the other, but that is really not the point of my presentation. When you see someone with a $500,000 or $1 million claim who is limited to $200,000 of insurance, that person is coming out very short already. To potentially reduce their recovery is to inflict a greater injustice on that individual, and that should not be done. The current practice is for the commission to waive its account.

What is difficult about 99.2 as proposed is that it sends conflicting messages. It says at 99.2(1 ), the general rule will be prorated recovery. It does also say in 99.2(2) that the commission shall waive on terms and conditions as it considers just, but it is left to discretion. There is no clear guidance.

In the future the commission may consider on some legal opinion that 99.2(1 ) is more important or that it lays down a general rule or presumption and that the commission should try to prorate unless the contrary is shown. life would probably be simpler, the law would be clearer if we had 99.2(2) and we really did not bother with sub 1 . I am not sure where the need for sub 1 arises. Most of the legal principles surrounding subrogation are clear. The existing legislation is clear and works well. I have not, through searching my mind and consulting with other lawyers, established why there is a need for 99.2(1 ).

I would suggest the law stands well without it, in view of the

18 2 LEGISLATIVE ASSEMBLY OF MANITOBA July 17 , 19 91 established legal principles and the ruling of the Supreme Court of Canada. I think that concludes my remarks. I want to limit myself to the part of Bill 4 that affects the day to day business of practising lawyers before the courts and the interests of the practising bar in the courts to try to explain some of the Impacts. What I said about rate shock perhaps has an important message and will be consistent with what you will be hearing from the Advocate Society in the future.

When people talk about no fault or they talk about court awards getting out of hand, we must put the court awards in the context of who is getting paid and what interests are being served. Court awards are high because medical care is expensive and because injuries to people are devastated.

When people try to say, well, we have to save money, we have to cut back the in surance premiums--i nsurance premiums brought down a government in 19 86--and we have to save money, you are saving money at the expense, first of all, of the Health Services Commission, which is the public of Manitoba that is funding it and, secondly, at the expense of injured parties. Thank you. Mr. Chairman: Thank you very much, Mr. Dalmyn. Ms. Judy Wasylycla-Lels (St. Johns): First, again let me thank Mr.

Dalmyn for his presentation on some clearly important issues in terms of Bill 4, some issues I think that would have passed by in terms of our attention had it not been for this presentation. It certainly had not been foremost in our minds in terms of the New Democratic Party that there was a major fundamental shift in policy around the whole issue of subrogation. In fact, I just checked again the minister's second reading speech on Bill 4 and I fail to find any reference to this whole issue which is clearly a very significant one and a major change in direction. Am I overreacting to what you are saying?

I sense that what you are saying is that there is quite a shift in terms of how subrogation has been handled in terms of health insurance legislation, but maybe g

Document details

Collection	Manitoba — Debates (Hansard)
Citation	35-2-la5
Type	hansard
Volume / chapter	35th 2nd hansardpdf la5.pdf
Language	en
Format	pdf
Source	PROVINCIAL
Identifier	ce688cfbe9c21c0c46ce279fada77c90ab447990

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