Binding Interest Arbitration – A New Era?

After years of wrestling a more powerful opponent, doctors opened their emails to find that government had offered a truce.

I never expected to see this.

Who would give up such advantage?

Government used to rule supreme. It could legislate whatever it wanted.

Why would government change its mind and give up absolute power?

A part of me must have believed that this would happen. Why else would I have spent years lamenting government power and control?

In hindsight, things had to change.

Government was trying to lead a horse to water that would not drink. Eventually, government had to give up absolute power to gain influence.

If government cares anything about solving problems in patient care, it must work with doctors. Government knows this.

If government wants to work with doctors, it cannot exert its awesome power. If government wants help from doctors, it must promise not to eat them.

The same thing applies to doctors. If we care about solving patient care problems, we must find a way to work with government. Anarchy must remain a playful fantasy.

Why Binding Interest Arbitration?

Like Star Wars groupies waiting for the next episode, medical politics wonks are giddy to see this offer. Everyone else probably thinks we are a bit weird.

Basically, binding interest arbitration:

balances power by removing government’s ability to unilaterally act against doctors

and

gives a neutral arbitrator power to settle everything that doctors and government cannot agree upon, in negotiations.

This is scary for both sides but better than the status quo.

Each party in a dispute agrees to accept whatever an arbitrator decides. Technically, there’s an arbitration board; we will dig into the details in other posts.

In a odd way, some might feel sad at seeing an offer that looks fair and balanced. People like to express moral outrage at injustice and oppression.

We lose our right to protest with a fair BA process. Power is balanced. Both sides must accept the arbitrator’s decision. We give up the right to light our hair on fire.

BA gives doctors what every other public sector worker already has in Ontario. Doctors have begged for this for years.

If ratified, doctors will have the right to be treated like everyone else, under the Charter of Rights and Freedoms.

No doubt, details matter. Doctors must dig into the specifics, ask questions, attend roadshows and figure out whether this is good for doctors and patients.

The OMA Board spent hours with the experts: Imagine the longest Internal Medicine ward rounds in medical school, then multiply by 6.

It was gruelling and thorough and passed unanimously.

Over the next few days, I’ll try to share more thoughts and details about the offer. And I’ll try to answer specific question as people raise them.

For now, try to picture where you were when you first learned about binding interest arbitration for doctors. This is an historic event. If ratified, it will open a whole new era for doctors and patients.

 

PS.

I want to apologize to my subscribers and regular readers. I feel sick about not posting for the last 10 days.

I am so sorry!

I have been swamped. Hopefully, things will settle down, so that I can get back to blogging and responding to all your comments.

Thanks so much for reading! I have not forgotten about you.

33 thoughts on “Binding Interest Arbitration – A New Era?”

  1. Hi Shawn

    Anarchism has been described as against “involuntary coercive hierarchy, that should be replaced by decentralized free association”. That seems to be a good premise for a strong relationship, one that is egalitarian. Perhaps we became a bit more anarchist 🙂 Anarchism like feminism can be a scary word and also can be a tool for promoting much closer and intimate egalitarian relationships. I suppose it’s in the alexic areas of intent and connection etc that drives how any word may be used as a salve or a weapon. Thanks Shawn. Your presence and impact has been quite a salve.

    1. What an incredibly thoughtful comment, Siobhan!

      Like you, I do not see anarchy in the same evil light that so many view it. However, it remains a safe little fantasy from my armchair. I might have very different thoughts were it to become a reality.

      I think society would be improved if we agreed to grapple politely with scary words. Unfortunately, it takes so much time an effort to get the agreement settled, most people fall asleep before the grappling begins.

      Thanks so much for taking time to share a comment! (Now I feel even worse for not responding to all the other great comments that I see in my comment box!!! #FirstWorldProblems).

      Talk soon

      Shawn

  2. As a self-diagnosed medical politics wonk, I agree that this framework agreement does feel like that highly anticipated next book in a popular series. And while there are no wizards and spells, no lightsabers and Star Cruisers, no phasers or transporters, I found it quite satisfying!

    Seriously, I think that this framework provides exponentially greater protections for physicians than the previous framework, and will give physicians the fairness in process that we have been looking for since 2014.

    Nothing is perfect, and members like me (and even less wonky members) will have questions. So far the response to questions on FB has been incredibly open, honest and devoid of paternalistic tone, and I salute the Board Directors who are responding for their efforts.

    I am looking forward to debating the details of this document with friends and colleagues, and I thank all the members of the Negotiations Committee for their sacrifice, diligence and dedication over the last few months.

    1. Thanks for this, Paul!

      I think you nailed it with “…the framework provides exponentially greater protections…” Nothing will be perfect. That is hard to accept even in good times. Having said that, I believe doctors know how to weather years of bad news around diagnoses and still make rational decisions in the midst of imperfection.

      I did not expect to see anything close to this offer. It stands as a testament to thousands of regular working docs being active and expressing their concerns. That pressure, plus an outstanding negotiations team, and dozens of political factors, has produced a very fair and balanced offer, in my opinion.

      Thanks again!

      Cheers

  3. “I feel sick about not posting for the last 10 days. I am so sorry!
    I have been swamped.”

    LOL 😂

  4. Hi Shawn. While the alleged agreement may be a step forward, kindly be reminded that ALL government representatives are a bunch of conniving and deceitful crooks whose stock and trade is lying and the obfuscation of the truth. On the other hand we as physicians, truth is the foundation of our relationship with our patients. So when you (the OMA) go in to negotiations in good faith, the government does not do so. Rather, they always go in with a back up plan that will allow them to shift things in their favour. It would be wise for OMA representatives (and I suspect they do already) read and follow the blog comments at the end of articles e.g. the Medical Post wherein a lot of very astute observations and thoughts are made and may not have crossed the minds of the OMA negotiation team. Of particular interest for many colleagues who continue to be confused by the terms binding arbitration (BA) and binding interest arbitration (BIA) is the following article by Tracey Tremayne Lloyd which is the first article I have seen that clarifies the difference. Kindly review it and pass it on to the OMA negotiation team.
    http://www.advocatedaily.com/tracey-tremayne-lloyd-whats-in-a-name-the-doctors-dispute-and-arbitration.html

    Best,

    Rob

    1. Thanks Rob!

      Doug Mark also shared this article with me on FB. I promised to read it and make some comments. And I will pass it along to the NC too.

      Thanks for taking time to read and comment!

    2. Great comment. I don’t trust the government as far as I could throw them. They have assailed us for 4yrs. OMA though you are all shiny and new and full of the Joys of spring and newly elected power… do not be swayed so quickly. We have waited 4 yrs, now is not the time to rush to concession…

      1. Good comment, Sam.

        I trust the rule of law, more than any government. Even with great laws, tyrannical governments can over-ride them and pass new ones.

        Currently, we have no law or agreement to protect doctors. None. Even the Charter of Rights and Freedoms did not stop unilateral action. We will see if the Charter Challenge can fix the injustice.

        I think this agreement is much better than the status quo. Most doctors do not want to strike, even if the CPSO let us do it. Over the last 30 years, striking has not been super effective. It’s been disruptive, but not effective.

        I appreciate your call for caution! We need to tear this offer apart. Consider alternatives. Take our time with it. I know that doctors will do whatever is necessary to learn what they need to make a good decision.

        Thanks again

        Shawn

    1. Thanks Darren!

      I knew there was something out there. Brilliant.

      It is still probably worthwhile to wrestle with these ideas a bit as plebeian doctors….just to see how they relate to the offer we just got.

      Thanks again!

    2. Thank you Darren. Will also be able to forward the link to my email group of colleagues. Some of us are more clinically inclined. Most of us are not administratively inclined at all and need the guidance of other colleagues who are more gifted in these aren\as. Regardless, we all need to make an effort to become informed and actively participate in issues pertaining to medical care. As much as we loath getting involved and preferred to be left alone looking after our patients, medicine has become political (the government has made it so) and unless we push back against the tyrannical government agenda, it will continue relentlessly. An image that stands out for my cohort of Chinese colleagues is the iconical one of the one man who stood in front of a Chinese army tank June 4th at Tianmen Square. That one man who dared to be defiant and challenge the government of the day remains a strong symbol for many , not just the Chinese, to fight against the endless oppression – in our case that of the medical profession. Thanks again DC.

  6. Hi Shawn,
    Is there anything that prevents gov’t from not adhering to the arbiters decisionin BA (eg saying the budget can’t afford it)and legislating a contract ?

    1. Great question!

      Someone mentioned the “War Measures Act” of 1914 yesterday. It established income tax to fund the war. Then in 1970, government passed the Temporary Measures Act to deal with the October crisis. I’m sure there are hundreds of examples.

      Given a big enough crisis, government can do just about anything it thinks necessary to address the crisis.

      So yes, my understanding is that the government can pass laws about anything. But thankfully, our country is built on the rule of law, and our constitutional democracy stands on the division and balance of power. So we hope government does not do whatever it wants.

      Can a democratically elected government behave in a tyrannical fashion? Absolutely. It’s up to us to fight back, if we value freedom.

      Great question!

  7. After reading the agreement immediately on receipt, I was quite surprised by the scope and thoughtfulness of the document. I initially felt that it did limit the scope of arbitration to current negotiations which would undermine attempts to get compensation for unilateral clawbacks in the past few years. On re-reading it, I cant find the passage that started that thought so I will wait a couple of days and re-read it. I also noted that near the end when it mentions all the groups and alternate funding schemes that FHT’s were missing. An oversight or government digging in its heels for their boondoggles? Overall though I have to say I am really very pleased and I hope that it is the new muscle of the OMA that achieved this goal. The grassroots campaigns and general uprising have done the job. This is similar to 2004 where we rejected a deal and then got the best one we have had in a decade. The message has to be remembered, fighting back works. Complacency and “Co-management” promises don’t. I was satisfied with Goldblatt’s explanation of BIA. If there turns out to be a difference we can address it through the charter challenge which should never be dropped until it is in our hands from the supremes.

    1. Brilliant comments, Ernest!

      You raise some great, specific questions about details in the contract. We need to dig into these over the coming weeks as we digest it. I really like what you said here, and on FB, about “fighting back”. We would not be here, looking at this BA offer, unless hundreds of docs, like you, had spent months creating grassroots pressure. No doubt, other things matter too: a great negotiations team, dozens of political factors, etc, etc. But grassroots advocacy works.

      Thanks for reading and commenting!

  8. In the new agreement (d) ‘ the economic situation in Ontario’, stands out like a sore thumb.

    In view of the fact that the Ontario government have driven the Ontario economy into the ground and who continue to do so , the medical profession can expect no increase in their fees/incomes over the next 20years….in fact they can expect cuts upon cuts.

    It is the ” poison pill” ( there may be others that the more astute than myself will uncover)…the government has a history of planting poison pills in its agreements with the OMA as it did in 2012.

    One can expect the older generation to continue to pack their bags in preparation for retirement and the younger ‘ gig economy’ graduates to pack their bags to see the world.

    The remainder will remain as widgets to be manouvered about by their meddling managers and prying overseers in a steadily deteriorating centrally managed health care system, enjoying a steady deterioration of their living standards.

    Best of luck Shawn, count your fingers after you shake the hands of those on the other side of the table….they don’t like you and they loathe the profession …their only vulnerability is that they need your signature on that final document so that they can ensure the win in the Ontario election of June 2018, the only thing that self serving career politicians really care about.

    1. Thanks Andris!

      You always offer clear warnings based on historical evidence and logic. Pretty hard to argue with that! I wanted to push back on some of the ideas you advance. You speak as though the ‘economic’ situation with serve as the government’s trump card. That is, no matter what else we negotiate, government can trump it all, throw everything out, and legislate a terrible contract because of ‘economic concerns’.

      What you describe is the situation NOW. Until this BA agreement ratifies, the government can do whatever it wants and blame it on ‘economic concerns’. Arbitration takes that power away from government. It levels the playing field. It gives an arbitrator the power to decide to what extent, IF ANY, attention should be paid to the economy. Every single BA agreement – nurses, police, firefighters, etc – has this kind of language in it, but in a MUCH stronger form than what you find here.

      We need to separate process from outcomes. This is a process document. It does not define outcomes. We negotiate outcomes in PSA negotiations. If we cannot agree with government, then a mediator tries to help. If that fails, then an arbitrator, who we help to select, steps in an decides what issues are important, and to what extent those issues are important.

      This requires a blog of its own. For now, thanks for raising this important issue! We are much better off with power brought into balance.

      Cheers

  9. I like the graphic depicting my near name sake Androlcles and the lion.

    In Aesop’s tale Androcles comes across a lion in distress and pulls out a thorn from its foot…the lion later spares his life.

    The lesson of the story is supposed to be that “gratitude is the sign of a noble soul”.

    The OMA membership’s future sacrifices may well relieve the government’s immediate distress…but the Ontario Liberal government does not have a noble soul and has every intention of chewing up the membership and spitting out its bones.

    1. I’m glad you noted the photo, Andris!

      It speaks to noble souls and finding agreement despite great power imbalances. The lion needed Androcles.

  11. Shawn – here are my comments on SYSTEMS LEVEL CHANGE, and whether any of this should be in this BA agreement, or perhaps a separate negotiations agreement. For many of us it is the government’s unilateral changes to the system itself that troubles us (and the system) most significantly.

    ———-

    My thoughts off the top

    1) The frontline health services for the province are becoming greatly strained by government experimentation with alternative providers – NPs, Midwives, FHTs to name 3. These providers do their work with funding outside the PSA.
    A) it would be better if funding of these alternative providers flowed through the PSA as part of the negotiated PSA envelop of funding for accountability.
    B) At least, dollars spent on these alternative providers need to be clearly laid out as part of negotiations.

    Not sure if this fits in the scope of the document or how it fits. I do think we need to reference these providers in the fine print.

    2) System change – Lots has been done unilaterally by government in recent years. Lots to remove us from the co-drivers seat practically. From cuts to questionable legislation where we seem to have limited voice. New models of care delivery with no obvious evaluation of these changes. Much of it seems to be a shell game that leads to more fragmentation and system cost and instability.

    We ought to be engaged locally, LHIN and at the provincial level.

    Is FUNCTION of the system, something that we can have in a framework arbitration agreement?

    3) Lastly, government is our sole payor. Should we have in the framework some trigger to open up private billing for services when government fails to adequately fund health services?

    1. Great questions, Clay! Thanks for taking time to raise them here.

      I share your passion for system change. The system cannot function when government creates policies and passes laws without consulting doctors. It needs to stop acting like it can do everything by itself. Healthcare is WAY too complex to be addressed with a command and control approach.

      Most doctors, like you, want to get talking about outcomes. We want to talk about services and structures. We want to fix practical problems. This BA offer does not do any of that.

      This offer is about process, not outcomes.

      The BA offer lays out a process for resolving disputes about outcomes. When we get to negotiations, then we can discuss outcomes, solutions to patient care problems, system change and everything else we usually discuss in negotiations. If you enjoy philosophy, this offer is a meta-level negotiation; it’s a negotiation about how negotiations will go in the future. (I know you get that. I’m putting it here for others who read through the comments.)

      So what do we do if government tries to usurp control over everything in medicine? Is there a way to block government from passing laws against us in the future? In a democracy, the only thing we can do to prevent tyranny is to elect good politicians. This might not seem like much, but it’s better than the alternatives.

      Great questions! Thanks again

      Shawn

      1. Shawn, I’m not sure. I think that OUTCOMES we measure and aspire to can be INPUTS as well as OUTPUTS. I think system inputs (alternative providers, imposed legislation, single payor) could be included in this framework somehow. At least it should be a discussion at the Board level. All of these things affect the cost of healthcare and involve us directly. I understand it goes beyond the usual scope of BA. THANKS FOR ALL YOUR EFFORT.

        1. Solid points, Clay. I agree. We need a broader discussion about all that you’ve raised. Some of that could happen in a PSA negotiation. System design will require a much bigger discussion than either the BA offer or future PSA negotiations.

          Thanks again!

  12. Great blog! Great results,… making me wonder, how come this was accomplished within one month of OMA elections, after THREE years of impasse? Trying to learn from the past. Welcoming anybody’s answer as Shawn is forgiven for being busy these days.

    1. Hey Johny,

      We cannot celebrate just yet. And we cannot take credit for something that required a massive team of doctors and staff, including an army of grassroots docs. On top of that, the political environment has changed: approval ratings are very low, stories of patient suffering continue to fill the papers and an election looms next year. Even so, I sure appreciate you kind words!

      I think you will see many articles, papers and analysis of this over the next few years.

      Great to hear from you!

      Shawn

      1. We cannot guaranty Outcomes but by ratifying Binding Arbitration we have a fair process. Outcomes can never be guaranteed. It is not often I disagree with you, Shawn, but we should be celebrating because we have leveled the playing field in bargaining with the government.

        1. Well said, Gerry: We cannot guarantee outcomes, but at least we can ratify a fair process.

          I smiled when you said you disagree about celebration. I think many doctors agree with you! This offer is the first sign of fair treatment that we have seen for almost 4 years. We should remain cautious, thoughtful and attentive. But at some point, we have to rebuild our faith in fairness and the rule of law. This BA offer is a first step. It will require many fair and lawful steps to follow before doctors will trust again, but I think this offer starts the journey.

  13. re “Well said, Gerry: We cannot guarantee outcomes, but at least we can ratify a fair process.”

    🙂 Thanks for the compliment, Shawn, but I believe I was quoting you.

  14. Thank you Shawn for your long-time passion, commitment & productivity; very proud to see people like you & Nadia as the OMA leaders, I hope the rest of the board share your vision & are committed to actions, and I am looking forward to give you my best needed support alone with the other grassroots OMA members.

    BA agreement is the next great step in this long & complex process of restoring the health care system balance, “each party in a dispute agrees to accept whatever an arbitrator decides. Technically, there’s an arbitration board”: overall it’s a very complex matter, thou I feel it would be shaped by 3 areas of values & our abilities to influence them:

    1. People/public expectations about the physicians’/health care system: from one hand, people expect so much from Medicine, and from the other, they don’t seem to prioritize it in their communication with politicians & voting practices;
    2. Government’s perception of MD’s role in the Society’s hierarchy of values, as well as ability of Doctors to resist by taking actions. So far the shorter supply has been the only strong point in our position. Also as an industry, are we capable of a reasonable win-win collaboration, or do we just bluntly push our narrow agenda ?
    3. Our own professional pride & collegiality: shall we agree on our core values & interests, will trust & follow our elected officials, or keep being arrogant, divided & hostile towards our own colleagues? Nobody would care about our wellbeing except ourselves: like in so many other countries, public would eagerly stomp us into the misery & poverty, wile justifying the super-earnings & atrocities of all the beloved celebrities, bureaucrats & speculators.. I hope we start moving in the right direction

    Best regards
    Alexey

    1. Great comments, Alexey.

      Your three points push the discussion beyond immediate issues. You force us to consider bigger ideas. Too often we don’t ask about the things you raise and suffer for it. Hopefully, we all take the time to think about what you’ve raised. Excellent.

      Cheers

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