Concerns About Binding Arbitration

A smart lawyer said he sees this all the time. People fight forever to get something. They sue. They protest. When they finally get what they want, they freeze.

There must be a trick. How could the other side agree? After abusing us for so long, how do we know this isn’t a trick?

Five years of fee cuts, unilateral actions, heckling and sloppy legislation have left doctors feeling abused. The relationship between doctors and government has been torn beyond easy repair.

Negotiators have started to mend a working relationship. They wrestled for months and finally got a framework each team could support.

The binding interest arbitration framework (BAF) represents months of debate and attempts to find common ground. They shaped a BAF that looks far better than many of us expected.

Some doctors wanted a framework that would guarantee a win in negotiations. They wanted a trigger that would be fun to pull. But neither side should want to go to arbitration. A negotiated agreement should always look more attractive than an arbitrated one, for both sides.

Concerns About Binding Arbitration

So after years of asking for it, doctors in Ontario have a BAF offer.  Some have serious concerns. Here are some of the things they tell me:

Doctors have had a 30% cut to net income. Why aren’t all the unilateral fee cuts listed as part of arbitration?

The OMA sued the government over the unilateral cuts of 2014 – 2017; the Charter Challenge continues, to resolve this outcome. The BAF is an agreement about process, not outcomes. The BAF sets up a neutral and fair process to resolve disagreements in the future.

The doctors’ negotiating team will fight to reverse the cuts, when contract negotiations resume this fall. If government does not agree, a neutral third party will decide whether doctors deserve to have those cuts reversed and be given a small raise.

Every other public sector worker has received small raises. It seems reasonable to expect an arbitrator to consider the same. Either way, the Charter Challenge continues.

Why would doctors ever agree that government has the power to write health policy or pass healthcare legislation? Surely, policy and legislation should be arbitrable.

Governments get to write policy and pass laws. We cannot stop them. But at least we can now challenge them with the BAF, if new laws impact our ability to practice.

As our advisors say, “If you guys find a lawyer who can stop government from passing legislation, you should hire them, fast!” 

But what good is that? Are you saying all doctors can do is sit quietly and complain to an arbitration board? Doctors need the power to strike, or government will never respect us.

Governments fear the threat of doctors’ job action. Politicians worry much less about doctors actually refusing to care for their patients.

Governments fear protests and campaigns. They fear attack ads and grassroots activism.

They worry about picket lines outside MPP offices.

This kind of job action helped get doctors the BAF offer.  The BAF preserves this kind of job action. Doctors do not have to sit quietly, while government passes heinous legislation.

Ok, but this BAF still stops doctors from a coordinated work stoppage or even slowdown. This BAF expands the definition of strike. It muzzles doctors. It takes away doctors basic rights as citizens of a free country.

No. The BAF restricts the definition of strike.

Other labour contracts include withdrawal of voluntary activities in their definitions of strike. The BAF explicitly states that strike means the withdrawal (or limitation) of patient care, by 2 or more MDs, coordinated to pressure government. That’s it.

And even if doctors did do something that looked like work stoppage, the government would have to bring evidence to the arbitration referee (a judge) to decide whether, in fact, any work stoppage even occurred.

In the famous 1986 doctors’ strike, the number of services provided for the month was virtually unchanged.

Yes but in Manitoba, doctors can strike on anything they want that falls outside of the arbitration contract.

This is not quite right. It gets into legalese within the Manitoba contract. Legal counsel says that:

“The (d) clause in Manitoba is actually restrictive.  Physicians cannot withdraw or constrain services – regardless of the purpose – if the services are a) covered by an agreement OR B) even if they are not covered by an agreement, if they are services that can be subject to arbitration. The Manitoba language is not explicitly limited to precluding withdrawal of services to patients, nor does it contain the exception in the BAF for normal decisions in the course of practice or expressions of concern or protest.  Additionally, if you compare the definition of strike in our BAF to that of Manitoba’s (stoppage of work or strike or withdrawal or curtailment) it becomes clear that our framework does not expand the definition of strike.”

But even if Manitoba had a better BAF, which I do not think it does, our team negotiated their best possible offer overall.

You cannot pick and choose the best parts of everyone else’s contracts and write your own. We must negotiate contracts as a whole.

How can you expect doctors to agree to ’sustainability’ of the system and ‘economics’ as factors to arbitrate? Government has said that the only way to sustain our expensive system is by cutting doctors. This BAF just means that government will make more cuts to ’sustain’ a crumbling system.

This would be a bad offer, if it gave government an economic get-out-of-jail-free card.

But we cannot pay. Look at the terrible economy! Look at the debt! The only way to create a sustainable system is by cutting services and increasing wait times. We simply cannot pay!”

 The BAF lists the economic situation as just one of many criteria that an arbitrator may consider. It does not say the arbitrator must consider it.

And the BAF does not say that the arbitrator must make economics any more important than any other criteria.

On top of that, we do not want only a ‘sustainable’ system. We want a high quality, patient centred, sustainable system.  Sustainability is only 1 of 6 criteria that an arbitrator may consider.

Finally, the economic situation is a standard clause in BA across Canada. All public sector BA contracts allow arbitrators to consider the general economy.

The BAF offer does NOT say anything about government’s fiscal situation or government’s ability to pay, unlike most other BA contracts.

This BAF bakes in a hard cap on doctors. It makes doctors responsible for growth in the ‘Physician Services Budget’ (PSB).

Government wants a hard cap. It wants predictability. It tried to unilaterally make doctors responsible for the increasing medical needs of patients in Ontario.

The BAF does not do that. There is no hard cap, in the BAF. The BAF makes the whole debate about the PSB open to arbitration.

Should this worry doctors? Should this worry government?

If government and doctors cannot negotiate an agreement about spending on physician services, then the issue goes to an arbitrator.

That probably makes both sides a bit nervous.

But without the BAF, government gets to decide. Government has all the power to make unilateral cuts and hard caps. With a BAF, an arbitrator makes the decision, if doctors and government cannot agree.

But why do we have to discuss the PSB at all? Government promised to pay for all medical services, when it took over healthcare at the start of Medicare. Government should just pay. It should live up to its promises.

Debate about the growth and size of the PSB will come up in contract negotiations. This BAF anticipates the debate and makes it another thing that an arbitrator may rule on.

Government struggles to pay for all the patient care that could be provided. Medical technology offers enough gadgetry to eventually consume the whole provincial budget. The BAF makes this whole debate an item for arbitration.

But why can’t you just tweak this offer? Just go back and make a few changes.

This BAF is not perfect, nothing ever is.

If there was a way to improve it for doctors, our team would have done so. The BAF is not an unusual clinical case. It cannot be improved by asking whether the team considered this test or that diagnosis.

The BAF is more like an international peace treaty than a difficult clinical case.

Doctors are used to helping solve clinical puzzles by suggesting tests and considering alternatives.

The same approach works for the BAF, except for one thing:

We can always improve unresolved clinical puzzles with more tests and questions.

But international peace treaties must be signed and agreed upon. Puzzles can go on forever. Treaties must be enacted.

Fear vs Concern

Peace is scary after years of fighting. The last few years have created a whole generation of doctors who will live out their careers on high alert for government malfeasance.

But at some point, we have to attempt peace. Sometimes, we might even get what we ask for.

 

Photo credit: etsy.com

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38 Replies to “Concerns About Binding Arbitration”

  1. excellent summary and not a divisive response
    we need to focus on a negotiated settlement
    not have unilateral cuts
    and have the arbitration process to provide some fairness
    if needed , after years of bullying and erosion of capacity to deliver health care
    thank you for this!
    I did read the rejection appeal from Concerned Doctors evaluation and on balance after reading this I feel I can support this initiative
    We cannot live in perpetual fear and this is not a vote on an offer but providing a framework to resolve an impasse , long overdue.
    We had a failed platform to protect our interests in our prior agreements. It gave the Govt the upper hand. This is essential to level the playing field. Good work from the negotiators who if we support by voting for this agreement will give them a mandate to deliver a better contract, which if we reject negotiations will be a risky outcome with no fallback to go to arbitration, so why would the Ministry risk giving us a fair deal if arbitration is not available.
    We need leverage tools in future negotiations and a backbone in negotiations with transparency which is now evident within the OMA and if we don’t support our organization to represent us then we are at the mercy of the Govt’s whims once again, knowing we are not united.

    1. Thanks John! I appreciate your call to see the bigger picture. We need this to get through a very tough contract negotiations ahead.

  2. The first evidence of “peace” in any long-standing relationship is a mutual cessation of attacks on each other. This creates capacity to build mutual trust. Once trust is established, opportunities arise to work collaboratively in pursuit of shared goals.
    For the sake of the patients whom physicians serve, we desperately need trusting collaboration between physicians and governments to make care better.
    Many of us across Canada sincerely hope that “peace” in Ontario will yield a vibrant collaborative working relationship between our colleagues and the government of Ontario.

  3. Thanks Shawn,

    In your response to the clawbacks and whether they would be subject to negotiation and “reversed”, I think it’s important to clarify that reversed means to return them to prior levels going forward; reversed does not mean to pay back the money that was lost.

    Jordan

    1. Well said, Jordan. We have financed the system for the last 4 years. It would take an extremely huge raise to return all the funds that we had taken away through unilateral action.

  4. Very persuasive Shawn.

    One is reminded however of Aesop’s tale of the Scorpion and the frog.

    In this case the goal of the Liberal scorpion is to reach the other side of the river bank, June 7 2018, the day of the Provincial election , which the scorpion has every intention of winning …having reached its goal, it WILL sting, it is in its nature.

    Our profession and the health care system barely survived the last time the noxious scorpion stung it, it won’t survive the next sting.

    The nature of Hoskins and the Provincial government scorpion has not changed and has no intention of changing.

    ” Once bitten, twice shy”.

    1. Fair comment, Andris.

      To quote another proverb: We need to ‘trust but verify’. Regardless of our assessment of the character of our person with whom we are dealing, it seems strange to not accept something that appears good for us. Even in war, we will win a skirmish here and there, no?

  5. Well stated Shawn. I’m reminded of a song quote:
    You can’t always get what you want
    But if you try sometimes well you might find
    You get what you need

  6. The COD analysis debunking some of the misconceptions in this post can be found at: http://www.carenotcuts.ca/tBIAF

    I invite everyone to compare the definition of strike action in the 1991 binding arbitration framework agreement with the definition of strike action in the 2017 agreement: the 2017 agreement has a greatly expanded definition of strike action. I really don’t know why you’re claiming that this BAF somehow restricts the definition of strike action – it sounds like doublespeak to me.

    1. Thanks for explaining where you get your definition of strike from, Sharad!

      I have struggled to understand why you, and others, have insisted (over and over) that this BAF restricts the definition of strike. I see now, that based on a 26 year old definition, the current strike definition might appear ‘restricted’ as you say. However, multiple charter cases have changed the face of labour law since 1991. It is simply unfair to hold the current BAF against a 1991 definition that no longer holds in any other jurisdiction or BA settlement. Let’s compare apples to apples.

      Compared with other, contemporary definitions of strike, in other BA agreements, the current definition of strike in our BAF is much broader.

      Thanks again for posting a comment.

  7. Time and again it has been shown that binding arbitration does not serve its members well. Strike or even the threat of one is a messy, but effective stick. Giving this up is our only weapon.

    I have seen 30% clawback to my billings despite I am doing the same work. These fees were negotiated and agreed to.

    The OMA has done NOTHING to pressure the government to correct this.

    This agreement lets the government off the hook and gives them the advantage in future dealings with us.

    Job action has never been used and in fact, the much publicized weekend meeting where this was “discussed” was a charade to fool the government.

    We are not respected. We are not feared. This agreement is the product of a weakened party dealing with a corrupt, inept, and abusive government.

    I for one, will not remain a partner in this abuse relationship. I will not agree to something that is of no benefit to us and buoys the Wynne Regime to any potential victory.

    1. We need effective protection as do unionized workers, in particular public service unionized ….as it is there is nothing to stop the government with its layers of managers and supervisors to squeeze individual OMA members or groups of OMA members with impunity.

      The OMA, an association and not a proper Union , is not structured to protect the membership ….as it stands it has not shown the will to protect its members….some of them sitting at the table negotiating representing the OMA have shown signs of more sympathy to the government and its needs and wants than that of their own membership.

    2. Thanks for this, Deron.

      I agree. We have been abused. We have fought back, but probably there’s always room to improve. The new board has been in place for 4 weeks. We are making changes. I hope we can earn back your trust.

      Thanks for all your passion about medical politics!

      Talk soon

      Shawn

  8. Outstanding communication Shawn. Two questions for contingency planning:
    How could physicians strike against the government without striking against patients?
    What do we need to do to make sure arbitrators have the data they need to render a fair decision?

    1. Thanks Glen!

      Great question about striking. As currently defined, only patient care services are considered in a strike. Everything else is considered part of job action and is allowed.

      The arbitration board can request experts and data as it sees fit.

      Great to hear from you!

      Shawn

  9. Shawn:
    Thank you for this post. My concern remains my trust in the OMA. As recently as the last communication you sent out regarding conscience and the care coordination services (I’m sure with information supplied to you by OMA), there was misinformation. Your communication said the the CCS would be a system to help conscience objectors. Already at that point in time, I knew firsthand and from further reading the MOHLTC document that this is not the case. The CCS will not be like Alberta’s, it will rather inform patients of their right to demand an effective referral from us.
    If such a simple thing, that myself who is not plugged into the OMA directly can understand better, how can I trust an association that can be so careless about details that will greatly affect our careers?

    1. Thanks for letting me know about this, Ramona. I was not aware that the CCS had that focus. I will look into it for sure.

      I agree, trust remains paramount. Trust must be earned. It must be given and received. Trust also requires us to allow others to not be perfect, which is really tough if we’ve been let down repeatedly.

      I hope we can earn back trust.

      Trying my best…thanks for your advice….

      Shawn

  10. I think your assessment is fair .After a long discussion with members of the negotiating team who went through the agreement carefully with us, I was surprised at how many concessions the gov’t was willing to make-( guess they want to get re-elected.)
    Anyhow it is indeed not perfect but to be honest, my section is tired and cranky- we need stability and an opportunity to get to the table and get on with negotiations .
    Thanks for your leadership on this.

    1. Thanks Catherine.

      I think you and your section reflect the feelings of most doctors in Ontario. We want to move on. This is what we’ve been asking for. Let’s get to work on negotiating a contract.

      Thanks again for taking time to post a comment!

      Shawn

  11. Hi Shawn,
    First of all “thank you” to you, Natalie and the others for all your work and for making the OMA an organisation which is becoming credible as a voice FOR physicians in Ontario.
    I few comments somewhat scatty as usual but here goes…
    – We asked and negotiated for BA. If we reject it now we will loose what little public support we have garnered.

    – I agree with Andris we need a Union – in my opinion a National Union which has the clout to have our back and to influence HC decisions. Our political “power” is largely in the public perception enhanced by the Government for it’s own purposes. Also our “power” such as it is being rapidly eroded.

    – IMO If we want to have any real say in Canadian HC of the future we need to take that power back from bureaucrats etc. They certainly will not be offering it to us.
    For comparison the UK government rarely crosses swords with the 150K Membership of the BMA on anything! Reading the tone of UK Government communications with the BMA in comparison to that the MOHLTC would be enlightening for anyone who believes that the MOH thinks of us as anything other than overpriced widgets.

    – Something I should probably know but will ask anyway. If we ratify BAF and negotiations are not going well so we are going to BAF what control do we have over timing? I realise folk want an agreement yesterday but if it seems prudent I think waiting until June 8th 2018, as per Andris, would be a good plan.

    – Finally I respectfully disagree with Dr Kendel. When I moved to Canada the Health Care system (at least in the 5 provinces I worked ) seemed superior to the NHS + very ltd. Private HC in the UK. The NHS has turned itself inside out repeatedly in an effort to find methods to deliver good health care. What has Canada done ? By intransigence, parochial attitudes and neglect we have allowed HC to be run by Bureaucrats whose solution to HC improvements is always more Bureaucrats.

    I believe that it is our Duty as Physicians ,beyond fee negotiations to Fight for HC Reform in Canada. I believe that negotiating with the MOH with regard to real HC reform is useless. They don’t really SEE the problem or they ignore it. They have demonstrated that they have no interest or respect for our opinions – we are just useful to take the rap for the disaster which is our current HC system and (they hope) help them get re elected.

    I believe that front end/grass roots Physician persistence as exemplified by the new OMA (and hopefully unionisation ) is the way to achieve change in Canadian HC. Because we do SEE the problem. But we do need the power to change it. If we don’t fight for positive change who else is going to do it?

    Getting off the soap box now!

    Thank you Shawn, as always, for all that you do.

    Helen

  12. Hi, Helen. I’m not sure what facet of my commentary troubles you. Is it your view that the BMA having union status is the UK has been the driving force for innovation in the NHS? I’m not sure I have seen any evidence to support that premise but an always open to evidence I may have missed.

    1. Dr Kendel,

      Andris has very eloquently reiterated my points. (but still think BAF is probably our best shot) i believe this should clarify your question as to what troubles me about your commentary. If “making Peace” with the MOH were to be of benefit to our patients why has the MOH continued to preside over a deteriorating HC System through many years of “truce” between the MOH and Physicians?

      In answer to your question about the NHS and the BMA. The BMA gives Physicians a voice in Health Care in the UK. Something we have completely lost in Canada.
      The BMA balances out the Political and Bureaucratic input and by doing so It supports innovation. Without the BMA would the NHS be coping as well as it does with the changing world of Health Care? Maybe it would have the kind of shambles we have in Canada. Increasing numbers of Bureaucrats, the worst physician and nurse ratio per head of population in the developed world etc. etc.
      I am delighted that front line Physicians in Ontario are pushing for change in our Health Care System. It has been a long ,long time coming. 20 +years ago one third of the population of Moncton, New Brunswick could not find a Primary Care Physician. Nobody cared – it was just New Brunswick.
      Now things are a little different…

      Helen

  13. The goal of career politicians is reelection.

    The goal of the career politicians in power is to keep it.

    The goal of the bureacracy is to maintain the status quo whilst increasing its own power…it hates innovation, in particular innovation that might produce better results…any improvement makes the top bureacrats and the faceless central planners look inept…they will do anything they can to prevent their incompetence and ineptness to be exposed.

    The goal of the medical profession and its leadership should be excellence all the way around, a world class health care system.

    Constant improvement and constant positive change should be the goal….the Japanese call it Kaizen.

    The governmental policies promises the exact opposite …50 years ago Canada’s health care system was #4 in the world , its policies have led to consistent deterioration so that at last count Canada was at #30 and still dropping.

    The health care of the Canadian people and of Ontarians is too important to be left in the hands of those kinds of duplicitous people who have had their hands on the levers of power over the last 30 + years in particular ….a yes vote would merely perpetuate their catastrophic discombobulated policies.

  14. Dr. Whatley, with all due respect, until the OMA rids itself of venal Rand funding, I find everything the OMA does suspect until proven otherwise.

  15. Thank you Shawn, I have voted “for” the long-anticipated BA (even not the perfect one) & believe the majority of MDs will support it too.
    So far the physicians shortage has been our only significant argument which the Government/public considers. So thanks to the colleagues who retire early or move out of province.
    For the “soft” job actions, I neither believe the immunization suspension could come as a great one, thou I wonder if the MDs voluntarily keeping the med students/residents as trainees put a hold on this practice, until the Government re-establish the trust.
    I am not talking about the full-time professors/preceptors, but rather the doctors who chose to do it voluntarily. This can be compared to the extra-curriculars suspension by the Teachers – ?

  16. Alexey, physicians’ pointing out some of the wretched failings of the health care system are the what has moved the government.

    I applaud your astute observation: “So thanks to the colleagues who retire early or move out of province.”The shortage of physicians you mentioned should,in any reasonable market situation, be driving the “wages” of physicians skyward. Look at how the government justifies paying close to million dollar salaries plus bonuses to administrators so that they can hire the “best administrators”, eg. Pan Am Games.

    With regard to the sanctions you have mentioned, I suggest that you send them to the OMA committee that is creating a list of sanctions that physicians can use in any power struggle with this government or any other government.

    1. Thank you Gerald,
      for some reason the government (=public) does not perceive MDs as “top talents”: the administrators, politicians, inside traders & speculators, sports & entertainment clowns of all kinds seem to be way more appealing to Ontarian public, rather than “top-5%” of class toilers who hammer their careers to med profession from their teen-age.. There might be many reasons, and one is the devaluation of our position due to our high availability: when people get used to see an MD for minor sniffles, notes, paper cuts or mosquito bites in no time, they cannot perceive/justify the 12+ year of study & 200$K+ wages.. The Government gets mad as well: the more they pay for HC, the more people tend to use it, and the less satisfied they get with the results.
      We can hope that BArbitration will help us as much as it does to e.g nurses, fire-fighters or garbage-collectors, and that the Arbiters will acknowledge that MDs should earn somewhat more than those other well-compensated members of the society, thou we can always expect some “idealists” proclaiming that “medicine is not about money”, and the economic equality concept resonates well with Canadians these days, only few above mentioned groups of “celebrities” seem to be immune to it/justified in public eyes, not their boring MDs.
      For my action suggestion, I hope Shawn will see it here & consider among others (+ there’s a benefit to get the opinion of other members/visitors of this site) 🙂

      1. Seriously, Alexey, Shawn will see your post, but he is so busy now that you would make his life easier if you find out how to send it directly to the OMA sanctions committee. Shawn has not got time to write it out and he would have to send it to the committee anyway. Alexey, please do it that way.

          1. Thanks, Alexey, from the self-appointed, usurping, less polite, self-aggrandizing, substitute decision maker and totally unapproved interloper on Shawn’s blog. 😉

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