The province’s privacy commission has ordered the health ministry to release the names of doctors along with their OHIP billings, in the interests of transparency and accountability.

The decision comes two years after the Star began requesting physician-identified billings from the health ministry, and brings the province more in line with other jurisdictions that are opting to disclose public funds paid to doctors.

In granting an appeal from the Toronto Star, John Higgins, an adjudicator with the Office of the Information and Privacy Commissioner of Ontario, said physician-identified billings are not “personal information” and are, therefore, not exempt from disclosure under the province’s Freedom of Information and Protection of Privacy Act.

Even if they were deemed personal, a compelling public interest in their disclosure would outweigh the purpose of the act’s privacy exemption, he wrote in a 54-page order released Wednesday and received by the Star Thursday.

The decision is “highly significant,” said past privacy commissioner Ann Cavoukian, explaining that it marks a departure from previous commission rulings that found physician-identified billings were personal and exempt from disclosure.

Higgins has ordered the health ministry to release the information to the Star by July 8.

“In my view, the concept of transparency, and in particular, the closely related goal of accountability, requires the identification of parties who receive substantial payments from the public purse, whether they are providing services to public bodies under contract or, as in this case, providing services to the public through their own business activities under an umbrella of public funding,” Higgins wrote.

The Ontario Medical Association, which represents the province’s 29,000 doctors, had fought the appeal. Its president, Dr. Virginia Walley, said she is disappointed by the decision.

“We do not agree with the IPC’s decision. We are currently assessing the merits of the decision and are reviewing our options,” she said in a written statement. The OMA and affected parties are entitled to seek a judicial review of the order.

“We continue to advocate that disclosure of billings without context does not provide the public with an adequate picture, and may lead to a misunderstanding of billings versus income,” Walley’s statement continued. “Without an understanding of each individual physician’s overhead costs (such as rent for clinic space, salaries and benefits paid to their office staff, medical equipment, and supplies), in addition to hours worked, one cannot truly interpret the data.”

A main concern raised by the OMA is that the public would equate billings with income. The amount doctors spend on overhead varies widely.

In April 2014, the Star filed a freedom-of-information request, seeking names of the top 100 billers, their specialties and the amounts each received annually for the past five years.

In response, the health ministry provided a breakdown of how much each doctor received from 2008 to 2012 (inclusive). But names were withheld because releasing them would have been an “unjustified invasion of personal privacy,” according to the ministry’s decision

Specialties were provided in most cases, but the ministry withheld a handful, reasoning that it would be easy for some to figure out the identities of the doctors in question. https://www.thestar.com/life/health_wellness/2014/12/06/billings_by_ontario_doctors_are_secret_should_they_be.html

The Star appealed the decision to the privacy commission, arguing that there is a compelling public interest in the release of the information.

A subsequent appeal by the Star for physician-identified billings of all doctors in the province was put on hold by the privacy commission while the smaller request was adjudicated.

The Star is also seeking access to health ministry data, showing what fee codes individual physicians have used when receiving fee-for-service payments.

Manitoba has been releasing physician-identified billings since 1996 and British Columbia since 1971. Prince Edward Island recently tabled legislation to disclose names of health-care practitioners and the public funds they receive.

In the United States, Medicare information on individual doctors was released in 2014 after Dow Jones and Co., the Wall Street Journal’s parent company, challenged a court injunction that had kept it under wraps.

In finding that fee-for-service payments are not personal information and, therefore, not protected from disclosure, Higgins explained that they relate to a doctor’s business or profession. “(They) do not reveal anything about physicians that is inherently personal in nature,” his order states.

Higgins wrote that there is “no question that the substantial expenditures of public funds do relate to the public interest.” He noted that the top-billing physician in 2012 received $6.1 million while the 100th top biller received $1.4 million.

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“I am aware that these payments do not reflect the physicians’ personal income as they represent gross revenue that does not take overhead expenses or payments to other physicians or staff members into account. Nevertheless, it is an inescapable fact that these payments consume a substantial amount of the Ontario government’s budget and regardless of the fact that the physicians are not public servants, these amounts reflect payments for public services provided to the public and paid for by taxpayers,” his order reads.

The province spends $11.6 billion on compensation to doctors. Of that, $7.9 billion is in fee-for-service payments from the Ontario Health Insurance Plan.

Cavoukian said she was “somewhat surprised” by the ruling because it “departs significantly” from previous orders made by the commission.

“The justification for such a departure will need to be explored,” she said.

The commission has determined several times that physician billing information is personal and private. It did so, for example, in a special report to the legislature in 1997.

The report included the results of an investigation the commission undertook after an aide to then health minister Jim Wilson leaked to a reporter the identity of the province’s top-billing doctor. It concluded that the privacy act was violated because the information in question was personal.

Michael Decter, chair of Patients Canada and former Ontario deputy health minister, said Higgins made a good ruling.

“We the public, we the taxpayers, are entitled to know where our money is going in health care,” he said.

Decter said the ruling opens the door to the government to proactively disclose physician billings annually, as it does with the Sunshine List of public servants earning more than $100,000.

“I think they should just put it out there the way they do all the rest of them,” he said, adding that physician billings should come out separately from the Sunshine List and with a notation that they do not account for overhead costs.

“If we are entitled to know thousands of salaries of people who work in hospitals, then I think it’s sort of weird that you wouldn’t also be able to know about people who bill under fee for service,” Decter said.

The release of the physician-identified billings could be helpful in contract negotiations between the province and doctors, he said.

“I think it could help bring the temperature down and allow a fairer discussion of physician compensation,” he said.

The province and the OMA have been at loggerheads since the government unilaterally imposed some fee cuts last year, and the OMA responded by launching a court challenge.

“It just seems that the public is always in this strange position of having to try and judge the truthfulness of what the minister is saying versus the truthfulness of what the OMA is saying about doctors’ pay,” Decter explained, noting that the public recently heard the health minister talking about the top biller pulling in more than $6 million last year, while many doctors complain that they have trouble making ends meet.