You can appeal long wait times for treatment

by Colleen Flood and Greig Hinds

This commentary was first published in the Toronto Star on July 25, 2005.

The recent Supreme Court decision involving a Quebec patient's right to seek private care has sparked debate on the role of the private sector in medicare. But an important aspect of that decision has been overlooked, namely the ability of Canadians to appeal long wait times or a decision not to fund a new treatment.

The Supreme Court recognized that among the flaws in the Quebec system was the absence of a fair appeal mechanism for patients who have to wait too long. In Ontario, patients who have run out of options to have a treatment covered by OHIP or wish to move to the head of the line can appeal to an independent tribunal. Only Ontario offers patients this ability.

The Ontario Health Services Appeal and Review Board hears challenges to decisions about public health insurance coverage made by the general manager of OHIP.

But access to this board is limited and the board's ability to review decisions is restricted.

The board has its office in downtown Toronto. In almost all cases, a complainant must travel to Toronto, or settle for making submissions by phone or in writing. Even if they can appear in person, the patient must persuade the board that the decision to refuse or delay treatment would lead to their death or "irreversible tissue damage." This evidentiary burden proves, in practice, almost impossible to surmount.

The workings of government, especially those that directly affect people's day-to-day lives, should be open to examination by citizens. This openness can be achieved by simply allowing access to decision-makers ó that is, making decisions easily available, making clear that appeals are possible and ensuring that an individual has some opportunity to be heard. This access should be fair and equal for all.

While it is admirable that Ontarians have the ability to appeal decisions by the OHIP general manager, the province falls short of providing an open process.

With hearings often being held only in Toronto, someone from Sudbury or Thunder Bay may have to take a day off work to travel there.

Additionally, access to previously made decisions is limited; one must physically go to the board's city office and request a decision by file number or name. If you do not have this specific information, you must scan the files a year at a time to determine if an appeal similar to your own has already been decided.

This inequitable access to the board is too onerous for most non-Torontonians and discriminates against those who live outside the city.

These deficiencies can be easily addressed. Most immediately, the board could make its prior decisions available by posting them on its website.

This way, anyone could determine whether their problem is similar to cases already heard by the board. The individual may thus be able to avoid an appeal by referring the general manager of OHIP to precedent. Another way to open access to the board would be for members to hold hearings outside of Toronto through the year.

In recent times, more than half of the board's members have been lawyers, with only one or two physicians appointed. The board would benefit from including more clinical expertise in its decision-making.

Patients' health should not be left solely to legal consideration alone, but on humane, compassionate and medical grounds as well. To this end, the board needs some limited discretion to fund treatment even where a patient is not able to conclusively show that waiting will be detrimental to his or her health.

Several judges in the Chaoulli decision considered psychological harm from excessive wait times to be a violation of the Charter of Rights. Most important, patients should know they have a right to appeal and to whom ó a fact that not even some physicians know. Better education of doctors and the public, or even a patients' Bill of Rights, would help.