I ASSOCIATION NEWS
CMA makes a stand on professional rights for physicians
CMAJ presents the text of a document accepted in June this year by the General Council of the Canadian Medical Association. The document sets out what should be the professional rights of physicians. It was prepared by a committee consisting of Drs. Peter Banks, Glenn Sawyer, Henri Chareffe and R.G. Wilson. Consultants were lawyer Lorne Rozovsky, Dr. Helen Mussallem, executive director, Canadian Nurses Association, Rita Cadieux, deputy chief commissioner for the Cairndian Human Rights Commission, Dr. Maurice LeClafr, then secretary of the Treasury, and lawyer ES. Midanik, representing the Canadian Civil Liberties Association. The committee's report is followed by a "declaration of reasonable expectations" also prepared by the committee.
ficials. It is very important that medical organizations should develop a liaison based on mutual respect with their counterparts in governments. It is in the interest of both parties that informal discussions take place for education and information about mutual or conflicting aims before a government has committed itself to a specific policy. When a piece of legislation has been formulated by the senior civil servants, it is presented to the minister. If the principle is approved, it is then prepared as a bill incorporating whatever suggestions have been made by the minister. The minister with the prior agreement of cabinet then tables the bill in Parliament or in his provincial legislature and the bill is given first reading without debate. At this stage, it becomes a public document. For a small fee, physicians and their organizations may obtain copies of all bills shortly after they have been tabled in the legislature. It is important that individual physicians and their associations be aware of proposed legislation because experience has shown that it is easier to have proposed legislation amended or withdrawn than it is to have proclaimed legislation amended or repealed. Not all bills tabled and given first reading become law. There may be such a reaction by the public or by. groups of citizens who will be affected by it that the government will allow the bill to lie fallow and die at the close of the session. If, on the other hand, the government decides to proceed, the bill is presented for second reading. This is approval in principle. It then may be referred to the appropriate com mittee of Parliament or the legislature for study and recommendation. Again, this may present an opportunity for doctors to outline in a formal manner their considered opinions. When presented for third reading, the Bill is dealt with clause by clause and as finally approved, with whatever amendments are made during this third reading and after receiving Royal Assent, the bill becomes law. In addition to liaison by officials, the officers of a medical organization should develop regular meetings with the minister and his senior staff. This should provide a
comfortable atmosphere for the exchange of views not only about current and proposed legislation, but also about programs and policies physicians would like to see implemented. This short review has indicated a number of avenues for consultation with government which, if employed wisely, can do much to minimize arbitrary action by government. One word of caution is in order: It is very important that the disparate views of the profession be distilled into a consensus within the profession so that its representatives can speak firmly on behalf of the majority. Medical officials are not there to voice individual opinions. A lack of consistency or the vociferous evidence of a lack of unity can only weaken the impact of the professional viewpoint. The terms of reference indicate some of the civil and professional rights of physicians which should be protected. These include: * The right to practise where they wish. * The right to decide their style of practice. * The right to decide their method of remuneration. * The right to be free of bureaucratic harassment. The right to practise where they wish Your committee agrees that in general terms this is a fundamental civil and professional right that must be protected. In 1975, the College of Physicians and Surgeons of British Columbia attempted to direct applicants for registration to designated areas of the province by making it a condition of registration. The courts declared that this action by the college was ultra vires. It should be clear, however, that any provincial legislature could pass a law giving such authority to a college. That this has not been done would indicate that the electorate would be unlikely to countenance it. Other jurisdictions, of which Ontario is a good example, have used financial inducements to attract physicians to underserviced areas. Since physicians are free to go or not to go, their civil and professional rights are not jeopardized. Equally, as in
968 CMA JOURNAL/OCTOBER 6, 1979/VOL. 121
other parts of the world, we might expect in the future that financial and other inducements might be offered to prospective medical students in return for a voluntary commitment to work in underscrviced areas. Physicians and their organizations, as a mark of good citizenship, should be diligent in devising ways and means, either alone or in cooperation with government, to bring the benefits of modern medical care to all the citizens of Canada. In our view, this would he the surest way to protect the profession in general against legislation that would interfere with this aspect of their civil and professional rights. The right to decide their style of practice Your committee interpreted "style" to encompass individual or group practice as well as the modality of practice. As far as we have been able to determine, there is no legislation in Canada that either compels or prohibits individual or group practice. Furthermore, we do not believe that such legislation is likely to be passed in the foreseeable future. There are those who favour group practice in the form of community clinics, but legislation favouring this style of practice relies on incentives rather than on mandatory compliance. The legislation under which the licensing authorities operate gives them the power to grant limited licences or to restrict licences for cause. The medical profession has accepted this as part of its responsibility as a selfregulating and selfdisciplining profession. Moreover, in an increasing number of jurisdictions, any such action by the licensing authority is appealable to the courts. Some doctors are denied the right to establish practice by the action of hospital boards. They may be denied the privilege of practising in a hospital or hospitals or may be granted privileges not in keeping with their requests. Physicians, generally, over the years, have supported the concept that hospital staff membership is a privilege and that the extent of the privileges granted should be recommended to the hospital board by the medical staff advisory committee or its
.7 This document was presented to, and accepted by, General equivalent, and should be dependent upon the training and competence of those applying. Those physicians who have been denied privileges or who have had their privileges reduced have access to the courts. The courts almost without exception have supported the right of hospital boards to grant or deny privileges as long as they have adhered to the procedures set out in the legislation under which they operate. The right to decide their method of remuneration
Traditionally, in Canada, physicians have chosen to be remunerated by fee for service. At the same time, there are many physicians remunerated by salary, some by sessional fee and some by a mixture of methods. The obvious concern is that there continue to be freedom to choose the method of remuneration. This concern arises because, under government health insurance, the majority of the physicians choose to be paid by the government insurance fund. Some physicians fear that legislation may be passed mak-
ing salary the only method of remuneration. This would be, in effect, civil conscription and this is unlikely to be contemplated by any political party. Physicians are much more concerned that the benefits of the government insurance plan would be made available only to those patients who receive service from a physician who billed the insurance plan directly. Such legislation is now a reality in the province of Quebec. By this legislation, a physician is not prohibited from choosing his method of remuneration, but it makes it difficult or impossible for any physician who does not comply to survive economically. The profession is thus coerced into the government scheme. The safety valves have been shut off. A physician, as a matter of principle or because of disenchantment, is no longer able to opt out of the government insurance plan. He has lost his independent professional status. Of more longrange importance to the province is the fact that the profession, having lost its independence, is no longer free to criticize the inevitable
970 CMA JOURNAL/OCTOBER 6, 1979/VOL. 121
shortcomings of government-run medical care insurance programs. The right to be free of bureaucratic harassment The "Concise Oxford Dictionary" defines "bureaucracy.. as "government by central administration; officialism or officials of such government." It defines "harassment" as "vex by repeated attacks; trouble, worry." We interpret the statement that physicians have a right to be free of bureaucratic harassment to mean that physicians have a right to be free of trouble and worry caused by officials of the government. Such a statement may make good rhetoric, but it is "pie in the sky" in practical terms. Once legislation is passed, it has to be interpreted by the government of the day and administered by the officials of that government. The officials are duty bound to apply the interpretation as set out by the government, even when they do not agree with it. Inevitably, there will be any number of situations where the interpretation the officials are required to apply will not meet with
the approval of physicians to whom it is applied. These physicians may well consider this to be "bureaucratic harassment" notwithstanding that the cause of the problem is the wording of the legislation rather than its application by the officials. We certainly believe that physicians have a right to be free of unwarranted bureaucratic harassment by which we mean they should be free from complicated or obtuse rules and regulations designed more to show authority than to expedite the administrative process. In the words of Hamlet, "the insolence of office". The profession should be heartened by the fact that the minister of health of Ontario recently asked the profession to document for him examples of bureaucratic harassment and promised that corrective measures would be undertaken. This action came after considerable publicity relating to charges made by doctors that this was one of the
reasons that physicians were leaving the province. This would suggest that the way to end unwarranted bureaucratic harassment is to publicize it when it exists and document it to the minister in charge of the department where it occurs. We believe that such documentation and publicity will evoke sufficient support to deter unwarranted harassment. Canadian medical insurance programs, where enacted in an atmosphere of discussion and cooperation with the health professionals, are working well. Where imposed, the sense of cooperative partnership, working toward a common end, has been lost. In the continuing development of programs aimed at the provision of optimum medical care, there will arise difficult problems involving the personal freedoms and desires of the doctor and of the patient on the one hand, and the administrative aims of the various levels of govern-
ment on the other. The resolution of these problems will depend on the flexibility of the schemes themselves and the atmosphere in which negotiations are conducted. Your committee feels that this atmosphere can only be improved by a mutual understanding of the reasonable expectations that the patient, the doctor and the government should hold of each other. To this end, your ad hoc committee submits to the Board of Directors, and through them, to General Council, the following declaration as a background statement to continuing negotiations. Your committee expects to present this document to council both in English and in French. Your committee craves the indulgence of the increasing proportion of the Canadian medical profession who are female and has written the report in the male gender rather than subject the rhythm of the language to the unwieldy straightjacket of bisexual gobbledegook.
A declaration of reasonable expectations: A recognition of mutual rights and duties (g) That the doctor will inform lA: The reasonable expectations the patient of the nature of the illby the patient of the doctor ness unless there be good reason to (a) The patient can reasonably consider this not in his or her best expect his doctor to be competent interest. in his chosen field, to recognize his (h) That the doctor will on relimitations and the need of help quest of the patient, provide pertifrom other members of the medical to his professional nent information profession and from other health s or to the patient's relcolleague professionals. atives. (b) That the doctor will exercise (i) That the doctor will honour responsibility in the utilization of the code of ethics of the Canadian all services. Association. Medical (c) That the doctor will be availthe doctor will fulfil the (j) That able, or will have made suitable placed upon him by responsibilities alternative arrangements for his relegislation. placement. (k) That the doctor will have (d) That the doctor will arrange greater concern for the quality of his schedule to respect, as much as possible, the convenience and time his work than for the income it .generates. of the patient. (e) That the doctor will keep a IB: The reasonable expectations reasonable appointment schedule, by the doctor of the patient giving adequate time to the patient (a) The doctor can reasonably whenever the emergent nature of that the patient will utilize expect his work allows. services responsibly. medical regard (f) That the doctor will (b) That the patient will not utilthe details of the patient's condition ize medical services at unreasonable as confidential. 972 CMA JOURNAL/OCTOBER 6, 1979/VOL. 121
hours for complaints of long duration or of trivial nature. (c) That the patient will keep any appointments, unless reasonable notice of inability to do so has been given. (d) That the patient will openly express his doubts and questions about his care to his attending doctor. 2A: The reasonable expectations by the patient of the government (a) The patient can reasonably expect that the government will keep the burden of taxation for health services at the lowest level consistent with good standards of medical care. (b) That the government will rigidly control the percentage of tax dollars spent on health administration as opposed to health services. (c) That the government will respect the confidentiality of the information that becomes available to it concerning the patient's medical condition. (d) That the government will
CMA makes a stand on professional rights for physicians
CMAJ presents the text of a document accepted in June this year by the General Council of the Canadian Medical Association. The document sets out what should be the professional rights of physicians. It was prepared by a committee consisting of Drs. Peter Banks, Glenn Sawyer, Henri Chareffe and R.G. Wilson. Consultants were lawyer Lorne Rozovsky, Dr. Helen Mussallem, executive director, Canadian Nurses Association, Rita Cadieux, deputy chief commissioner for the Cairndian Human Rights Commission, Dr. Maurice LeClafr, then secretary of the Treasury, and lawyer ES. Midanik, representing the Canadian Civil Liberties Association. The committee's report is followed by a "declaration of reasonable expectations" also prepared by the committee.
ficials. It is very important that medical organizations should develop a liaison based on mutual respect with their counterparts in governments. It is in the interest of both parties that informal discussions take place for education and information about mutual or conflicting aims before a government has committed itself to a specific policy. When a piece of legislation has been formulated by the senior civil servants, it is presented to the minister. If the principle is approved, it is then prepared as a bill incorporating whatever suggestions have been made by the minister. The minister with the prior agreement of cabinet then tables the bill in Parliament or in his provincial legislature and the bill is given first reading without debate. At this stage, it becomes a public document. For a small fee, physicians and their organizations may obtain copies of all bills shortly after they have been tabled in the legislature. It is important that individual physicians and their associations be aware of proposed legislation because experience has shown that it is easier to have proposed legislation amended or withdrawn than it is to have proclaimed legislation amended or repealed. Not all bills tabled and given first reading become law. There may be such a reaction by the public or by. groups of citizens who will be affected by it that the government will allow the bill to lie fallow and die at the close of the session. If, on the other hand, the government decides to proceed, the bill is presented for second reading. This is approval in principle. It then may be referred to the appropriate com mittee of Parliament or the legislature for study and recommendation. Again, this may present an opportunity for doctors to outline in a formal manner their considered opinions. When presented for third reading, the Bill is dealt with clause by clause and as finally approved, with whatever amendments are made during this third reading and after receiving Royal Assent, the bill becomes law. In addition to liaison by officials, the officers of a medical organization should develop regular meetings with the minister and his senior staff. This should provide a
comfortable atmosphere for the exchange of views not only about current and proposed legislation, but also about programs and policies physicians would like to see implemented. This short review has indicated a number of avenues for consultation with government which, if employed wisely, can do much to minimize arbitrary action by government. One word of caution is in order: It is very important that the disparate views of the profession be distilled into a consensus within the profession so that its representatives can speak firmly on behalf of the majority. Medical officials are not there to voice individual opinions. A lack of consistency or the vociferous evidence of a lack of unity can only weaken the impact of the professional viewpoint. The terms of reference indicate some of the civil and professional rights of physicians which should be protected. These include: * The right to practise where they wish. * The right to decide their style of practice. * The right to decide their method of remuneration. * The right to be free of bureaucratic harassment. The right to practise where they wish Your committee agrees that in general terms this is a fundamental civil and professional right that must be protected. In 1975, the College of Physicians and Surgeons of British Columbia attempted to direct applicants for registration to designated areas of the province by making it a condition of registration. The courts declared that this action by the college was ultra vires. It should be clear, however, that any provincial legislature could pass a law giving such authority to a college. That this has not been done would indicate that the electorate would be unlikely to countenance it. Other jurisdictions, of which Ontario is a good example, have used financial inducements to attract physicians to underserviced areas. Since physicians are free to go or not to go, their civil and professional rights are not jeopardized. Equally, as in
968 CMA JOURNAL/OCTOBER 6, 1979/VOL. 121
other parts of the world, we might expect in the future that financial and other inducements might be offered to prospective medical students in return for a voluntary commitment to work in underscrviced areas. Physicians and their organizations, as a mark of good citizenship, should be diligent in devising ways and means, either alone or in cooperation with government, to bring the benefits of modern medical care to all the citizens of Canada. In our view, this would he the surest way to protect the profession in general against legislation that would interfere with this aspect of their civil and professional rights. The right to decide their style of practice Your committee interpreted "style" to encompass individual or group practice as well as the modality of practice. As far as we have been able to determine, there is no legislation in Canada that either compels or prohibits individual or group practice. Furthermore, we do not believe that such legislation is likely to be passed in the foreseeable future. There are those who favour group practice in the form of community clinics, but legislation favouring this style of practice relies on incentives rather than on mandatory compliance. The legislation under which the licensing authorities operate gives them the power to grant limited licences or to restrict licences for cause. The medical profession has accepted this as part of its responsibility as a selfregulating and selfdisciplining profession. Moreover, in an increasing number of jurisdictions, any such action by the licensing authority is appealable to the courts. Some doctors are denied the right to establish practice by the action of hospital boards. They may be denied the privilege of practising in a hospital or hospitals or may be granted privileges not in keeping with their requests. Physicians, generally, over the years, have supported the concept that hospital staff membership is a privilege and that the extent of the privileges granted should be recommended to the hospital board by the medical staff advisory committee or its
.7 This document was presented to, and accepted by, General equivalent, and should be dependent upon the training and competence of those applying. Those physicians who have been denied privileges or who have had their privileges reduced have access to the courts. The courts almost without exception have supported the right of hospital boards to grant or deny privileges as long as they have adhered to the procedures set out in the legislation under which they operate. The right to decide their method of remuneration
Traditionally, in Canada, physicians have chosen to be remunerated by fee for service. At the same time, there are many physicians remunerated by salary, some by sessional fee and some by a mixture of methods. The obvious concern is that there continue to be freedom to choose the method of remuneration. This concern arises because, under government health insurance, the majority of the physicians choose to be paid by the government insurance fund. Some physicians fear that legislation may be passed mak-
ing salary the only method of remuneration. This would be, in effect, civil conscription and this is unlikely to be contemplated by any political party. Physicians are much more concerned that the benefits of the government insurance plan would be made available only to those patients who receive service from a physician who billed the insurance plan directly. Such legislation is now a reality in the province of Quebec. By this legislation, a physician is not prohibited from choosing his method of remuneration, but it makes it difficult or impossible for any physician who does not comply to survive economically. The profession is thus coerced into the government scheme. The safety valves have been shut off. A physician, as a matter of principle or because of disenchantment, is no longer able to opt out of the government insurance plan. He has lost his independent professional status. Of more longrange importance to the province is the fact that the profession, having lost its independence, is no longer free to criticize the inevitable
970 CMA JOURNAL/OCTOBER 6, 1979/VOL. 121
shortcomings of government-run medical care insurance programs. The right to be free of bureaucratic harassment The "Concise Oxford Dictionary" defines "bureaucracy.. as "government by central administration; officialism or officials of such government." It defines "harassment" as "vex by repeated attacks; trouble, worry." We interpret the statement that physicians have a right to be free of bureaucratic harassment to mean that physicians have a right to be free of trouble and worry caused by officials of the government. Such a statement may make good rhetoric, but it is "pie in the sky" in practical terms. Once legislation is passed, it has to be interpreted by the government of the day and administered by the officials of that government. The officials are duty bound to apply the interpretation as set out by the government, even when they do not agree with it. Inevitably, there will be any number of situations where the interpretation the officials are required to apply will not meet with
the approval of physicians to whom it is applied. These physicians may well consider this to be "bureaucratic harassment" notwithstanding that the cause of the problem is the wording of the legislation rather than its application by the officials. We certainly believe that physicians have a right to be free of unwarranted bureaucratic harassment by which we mean they should be free from complicated or obtuse rules and regulations designed more to show authority than to expedite the administrative process. In the words of Hamlet, "the insolence of office". The profession should be heartened by the fact that the minister of health of Ontario recently asked the profession to document for him examples of bureaucratic harassment and promised that corrective measures would be undertaken. This action came after considerable publicity relating to charges made by doctors that this was one of the
reasons that physicians were leaving the province. This would suggest that the way to end unwarranted bureaucratic harassment is to publicize it when it exists and document it to the minister in charge of the department where it occurs. We believe that such documentation and publicity will evoke sufficient support to deter unwarranted harassment. Canadian medical insurance programs, where enacted in an atmosphere of discussion and cooperation with the health professionals, are working well. Where imposed, the sense of cooperative partnership, working toward a common end, has been lost. In the continuing development of programs aimed at the provision of optimum medical care, there will arise difficult problems involving the personal freedoms and desires of the doctor and of the patient on the one hand, and the administrative aims of the various levels of govern-
ment on the other. The resolution of these problems will depend on the flexibility of the schemes themselves and the atmosphere in which negotiations are conducted. Your committee feels that this atmosphere can only be improved by a mutual understanding of the reasonable expectations that the patient, the doctor and the government should hold of each other. To this end, your ad hoc committee submits to the Board of Directors, and through them, to General Council, the following declaration as a background statement to continuing negotiations. Your committee expects to present this document to council both in English and in French. Your committee craves the indulgence of the increasing proportion of the Canadian medical profession who are female and has written the report in the male gender rather than subject the rhythm of the language to the unwieldy straightjacket of bisexual gobbledegook.
A declaration of reasonable expectations: A recognition of mutual rights and duties (g) That the doctor will inform lA: The reasonable expectations the patient of the nature of the illby the patient of the doctor ness unless there be good reason to (a) The patient can reasonably consider this not in his or her best expect his doctor to be competent interest. in his chosen field, to recognize his (h) That the doctor will on relimitations and the need of help quest of the patient, provide pertifrom other members of the medical to his professional nent information profession and from other health s or to the patient's relcolleague professionals. atives. (b) That the doctor will exercise (i) That the doctor will honour responsibility in the utilization of the code of ethics of the Canadian all services. Association. Medical (c) That the doctor will be availthe doctor will fulfil the (j) That able, or will have made suitable placed upon him by responsibilities alternative arrangements for his relegislation. placement. (k) That the doctor will have (d) That the doctor will arrange greater concern for the quality of his schedule to respect, as much as possible, the convenience and time his work than for the income it .generates. of the patient. (e) That the doctor will keep a IB: The reasonable expectations reasonable appointment schedule, by the doctor of the patient giving adequate time to the patient (a) The doctor can reasonably whenever the emergent nature of that the patient will utilize expect his work allows. services responsibly. medical regard (f) That the doctor will (b) That the patient will not utilthe details of the patient's condition ize medical services at unreasonable as confidential. 972 CMA JOURNAL/OCTOBER 6, 1979/VOL. 121
hours for complaints of long duration or of trivial nature. (c) That the patient will keep any appointments, unless reasonable notice of inability to do so has been given. (d) That the patient will openly express his doubts and questions about his care to his attending doctor. 2A: The reasonable expectations by the patient of the government (a) The patient can reasonably expect that the government will keep the burden of taxation for health services at the lowest level consistent with good standards of medical care. (b) That the government will rigidly control the percentage of tax dollars spent on health administration as opposed to health services. (c) That the government will respect the confidentiality of the information that becomes available to it concerning the patient's medical condition. (d) That the government will
