New Ontario health legislation is disturbingly vague on new clinics’ oversight

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More than anything, the Ontario government’s plan to reduce wait times by contracting out some surgical and diagnostic procedures to private clinics is underwhelming.

In tabling the legislation on Tuesday (titled Your Health Act, 2023), Health Minister Sylvia Jones did little more than repeat what the government has said previously.

The plan is modest: Outsourcing more relatively minor surgeries such as cataracts, and hip and knee replacements, as well as diagnostic tests like MRIs and CT scans, and some colonoscopies and endoscopies.

All of these procedures will be paid by the Ontario Health Insurance Plan. “Patients will access insured services with their OHIP card, never their credit card,” Ms. Jones said, a line that has become a mantra for trying to assuage fears.

That Ontario is not wading into the murky waters of buying faster access to care is one of the many good elements in the legislation. Another is that all the clinics must be linked to a local hospital, and surgeons and physicians who work in the clinics must have hospital privileges.

Linkage is essential because it will allow medical advisory committees, who oversee and monitor surgeons and other staff physicians, to set standards. The new law will bring clinics into the health system more formally, a big improvement on the status quo. Currently, there are about 900 “independent health facilities” in the province, including some that do surgery (mostly cosmetic plastic surgery) and the oversight is poor.

One aspect of the legislation that is getting far too little attention is a change to so-called “As of Right” rules. Health workers – physicians, nurses and other regulated professions – will be able to practise immediately without first registering with Ontario regulatory bodies. What isn’t clear in the proposed legislation is whether they will eventually need to register. There is simply no excuse for not having a single national licence that allows worker mobility.

What Ontario has done, it has mostly done right. But there are many unanswered questions.

Outsourcing minor surgeries and diagnostics makes sense. It’s efficient. But the government has never explained why clinics need to be for-profit facilities. There is no reason hospitals and independent practitioners could not build not-for-profit clinics. Presumably there are two unspoken reasons: Governments don’t like to invest in infrastructure, and for-profit facilities will likely not be unionized, giving them more flexibility.

While there is a massive backlog in surgeries – an estimated 200,000 patients are waiting for procedures in Ontario alone – hospital operating rooms are largely underused. In fact, most ORs close for the day at 3 p.m. because overtime rules make them too expensive to operate in the evening.

The new legislation is disturbingly vague on oversight of the new clinics. Who will inspect them and ensure quality standards? We don’t know.

Upselling – private clinics pushing fancier lenses after cataract surgery, or titanium joint for hip replacements, upgrades that are not covered by the basic OHIP rate – is another real concern. Saying that patients can complain to the patient ombudsman if they feel pressed is scant comfort.

With serious shortages of health workers – nurses and anesthesiologists, in particular – the government’s vague assurances that new clinics won’t poach from the already decimated work force in public hospitals ring hollow. Saying the new facilities will have to submit health human-resources plans before they are licensed is not sufficient.

By the way, how many licences for new clinics will be issued? Nobody is saying.

There is a lot of overheated rhetoric about the dangers/benefits of for-profit health care. It is neither demonic nor a panacea.

What we need, and what this proposed legislation should prompt, is a sophisticated discussion of the role of private and for-profit providers within a public system, and the type of regulation needed to ensure they respect the bedrock philosophy of medicare. (To wit: No one should be denied essential care because of an inability to pay.)

Ultimately, what matters to patients is that the procedures they get are accessible in a timely manner, safe, and affordable. Most people don’t care who owns the building or equipment, or who employs the workers, as long as they have prompt, equitable access to essential care.