Restricting private-sector practice using contracts

• Published in: Canadian Medical Association journal (CMAJ) 2015-05, Vol.187 (8), p.583-586
• Main Authors: Flood, Colleen M, Allen, Pauline, Thomas, Bryan, Walker, Kathryn
• Format: Article
• Language: English
• Subjects: Analysis; Canada; Compensation and benefits; Contracts; Contracts - legislation & jurisprudence; Fees & charges; Government Regulation; Humans; Laws, regulations and rules; Medical practice; Patient Credit and Collection; Physicians; Practice; Practice Management - legislation & jurisprudence; Practice Management - organization & administration; Private Practice - legislation & jurisprudence; Private Practice - organization & administration; Private sector; Private Sector - legislation & jurisprudence; Private Sector - organization & administration; Public sector
• ISSN: 0820-3946; 1488-2329
• DOI: 10.1503/cmaj.140837

Current constitutional challenges in Ontario, Alberta and British Columbia build upon the precedent of the Supreme Court's decision in the Chaoulli case, which attacked Quebec's law banning private health insurance. To date, the Chaoulli decision has not been as disruptive to Quebec's single-payer system as some feared. This is due largely to the province's calibrated legislative response, which liberalized private insurance for medically necessary care, but only for select services singled out in the ruling (i.e., total hip or knee replacement and major cataract surgery); meanwhile, access to these services within the public system was shored up with wait-time guarantees.9 The current set of constitutional challenges is more expansive, targeting restrictions on extra-billing, dual practice and user charges, which means that Quebec's targeted approach may not be feasible. How then can provincial governments respond? Professional regulatory bodies may play a role in limiting dual practice through their codes of ethics. In the UK, the physicians' code of conduct includes, for example, rules of disclosure vis-à-vis conflicts of interest.3 Similarly, the Royal Dutch Medical Association's code of ethics stipulates that all patients be treated equally, regardless of ability to pay.3 The Canadian Medical Association's code of ethics does not address dual practice, but it does address conflicts of interest (in articles 7, 11 and 49), discourages "cream skimming" of patients (article 17) and calls upon physicians to "promote equitable access to health care resources" (article 43).20 Professional regulatory bodies could conceivably address dual practice by establishing stronger mechanisms for compliance with these requirements. Furthermore, the feasibility of using other jurisdictions' contractual approaches in Canada depends on various country-specific factors. For example, limits on income or time devoted to private-sector work are more readily implemented in the UK, where physicians are paid on a salaried basis and are subject to greater managerial control of the nature of their work and their time by government agencies. Monitoring and enforcement might be more challenging in Canada, where physicians generally operate as independent contractors, billing public insurers on a fee-for-service basis. The prospect of shifting to contracts as a modality of regulation may bring a rethinking of Canada's attachment to feefor-service billing, which now accounts for 70% of