The names of high-billing doctors should not be made public, lawyers for the Ontario Medical Association and two other doctor groups have told the Ontario Court of Appeal.

“Doctors are different ...Why are they different? Because they do not have a contract with government,” lawyer Linda Galessiere, acting for a group of physicians described as “affected third-party doctors,” argued Tuesday.

Others paid from the public purse — including lawyers, consultants and contractors — have actual contracts with government, she said, but with doctors, it is simply legislation that mandates their OHIP payments come from the public treasury, not contracts, Galessiere argued. The contract between the government and the Ontario Medical Association (OMA) is only about the value of specific fees doctors can charge OHIP, she said.

Galessiere said physician-identified billings are public in British Columbia, Manitoba and New Brunswick because governments in those provinces passed legislation forcing disclosure. She said that if the Ontario government wants disclosure, then it can also introduce legislation.

The second group of doctors is described as “several physicians affected directly by the order.” This group and the “affected third party doctors” comprise 34 physicians, all of them men, more than half of whom practise in the GTA. Approximately one-third are radiologists and another third are ophthalmologists. They are among the top OHIP billers.

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The doctors and the OMA are appealing a ruling made a year ago by the Ontario Divisional Court that upheld an order by the Information and Privacy Commissioner of Ontario (IPC) to release physician-identified billings of the 100 highest-paid doctors.

The IPC order was the result of an appeal by the Toronto Star after the Ontario health ministry only partially disclosed information sought under the Freedom of Information and Protection of Privacy Act. The Star, in April 2014, made an application for information on the 100 highest-paid doctors for the most recent five years — 2008 to 2012, inclusive.

The ministry disclosed most of the doctors’ medical specialties and amounts paid, but withheld names, claiming such disclosure would be an unjustified invasion of their personal privacy.

Justice Paul Rouleau, one of three judges hearing the appeal case, asked Galessiere what makes doctors different from service providers such as road builders when it comes to disclosure.

“They (doctors) are not providing any services to the government. None. They provide them to the citizens,” she responded.

Galessiere also argued that the IPC erred in finding OHIP billings do not constitute personal information since they do not represent net income. The IPC found that OHIP payment information relates to doctors in their business or professional capacities, rather than personal capacities, and, therefore, is not exempt from disclosure.

The assumption cannot be made that all doctors deduct business expenses from their OHIP payments, Galessiere argued. “If you were an anesthetist, you would have no overhead. You administer a needle,” she said.

But Paul Schabas, the Star’s co-counsel, said lawyers for the doctors have contradicted themselves by also arguing OHIP payments are business revenue. They have argued that physician-identified billings should not be disclosed because some people might assume they are the same as income and not understand that overhead expenses such as rent are paid out of this revenue, he noted.

Schabas said doctors are not “special” or different from others paid out of the public purse and should be treated the same when it comes to disclosure of their names and how much they make.

“This case is about whether the public is entitled to know who the top-billing doctors to the public healthcare system are. Just as the public knows who gets paid what by the government through the Sunshine list,” he said, referring to the list released annually by the province of those earning more than $100,000. Others who do work for the government, including consultants, lawyers, law firms, and road builders, are also subject to public disclosure, he added.

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Associate Chief Justice Alexandra Hoy asked why the names of the doctors matter.

Star co-counsel Iris Fischer responded that the disclosure of names allows journalists to scrutinize government expenses.

Fischer noted that physician-identified Medicare billings were released in the United States in 2014 following a court challenge by the Wall Street Journal. Quoting from a Washington Post editorial published that year, she said such information helps “illuminate the workings of a complex system of fee-for-service medicine whose seemingly uncontrollable costs have challenged U.S. policymakers for decades.”