The Ontario Medical Association is seeking to overturn a landmark decision by the province’s privacy commissioner to release the names of top-billing doctors.
In addition, a group of about 40 doctors and one physician acting alone who are on the list have made separate applications for a judicial review of an order from the privacy commissioner to release to the Toronto Star the identities of the top 100 billers.
The three parties filed applications this week with the province’s divisional court to quash the ruling made June 1 by the Information and Privacy Commissioner of Ontario.
Adjudicator John Higgins ruled in favour of the Star in ordering the release of names of the top 100 billers, their medical specialties and the amounts they receive in taxpayer-funded payments from the Ontario Health Insurance Plan (OHIP).
Identities of parties receiving substantial payments from the public purse should be released in the interests of transparency and accountability, he said.
Doctors’ names and OHIP payments are more properly characterized as business information rather than personal information and are, therefore, not covered by the personal privacy exemption of the province’s Freedom of Information and Protection of Privacy Act, Higgins wrote.
Even if the information were deemed personal, there would still be a compelling public interest to release it, he added, agreeing with the Star’s argument in the case.
Past privacy commissioner Ann Cavoukian has described Higgins’ decision as “highly significant” because it departs from previous commission orders, which deemed physician-identified billings to be personal information.
In seeking a judicial review of Higgins’ decision, the Ontario Medical Association (OMA), which represents the province’s 29,000 doctors, is arguing that it is not in keeping with previous rulings by the commissioner.
“We continue to advocate that this is personal information and, without the proper context, OHIP billings will be misconstrued as income, which is false,” OMA president Dr. Virginia Walley said in a written statement. “OHIP billings do not provide insight into the number of hours doctors work, the complexity of care they provide to patients, or the overhead costs they bear in order to staff, equip and run their clinics.”
Among the organization’s other arguments: the ruling is incorrect and/or unreasonable, the adjudicator failed to consider submissions from doctors, and the ruling was made without proper legal or factual bases.
The two other physician parties are making similar arguments. They are asking the courts for a special order permitting them to proceed with the judicial review without their identities being made public.
The physician acting alone, described only as “Dr. A.B.,” also argues that he was never informed about the case by the privacy commissioner even though he is among the top billers. He was never given the opportunity to argue his case, unlike other affected doctors, his application states.
The Star began requesting physician-identified billings from the health ministry more than two years ago.
“Ontario is trailing other provinces in releasing this information, which is highly relevant to the people who ultimately pay for the health care system,” said Star editor Michael Cooke.
“We trust the public to be able to differentiate between billings and income. Letting the light in is the right thing to do, and there is no adequate privacy argument against it.”
British Columbia and Manitoba have long made this kind of information public, and Prince Edward Island has recently introduced legislation to do so. In the United States, Medicare data on individual doctors was made public in 2014, following a court battle initiated by Dow Jones and Co., the Wall Street Journal’s parent company.
In April 2014, the Star sent a freedom-of-information request to the Health Ministry, seeking the names of the top 100 billers for the years 2008 through 2012, their specialties and the amounts they received in OHIP payments for the five most recent years such data was available.
In response, the ministry provided a breakdown of payments but withheld physician names, maintaining their disclosure would violate privacy legislation. In a handful of cases, the specialties of doctors were also withheld for the same reason.
The data provided show that in 2012, the highest biller alone received more than more than $6 million, while the second- and third-highest billers each received more than $4 million. The physician whose total annual OHIP payments ranked at number 100 received more than $1.4 million.
The Star launched an appeal of the ministry decision, arguing that full disclosure was in the public interest because of the considerable outlay of taxpayer dollars.
With an annual budget of $51 billion, the Health Ministry consumes 42 per cent of the entire provincial budget, the appeal noted. At $11.8 billion, spending on OHIP makes up a significant portion of this.
The privacy commissioner has put on hold a separate appeal from the Star for the release of all physician-identified billings, while this smaller appeal is dealt with.