The Public Sector and MPP Accountability and Transparency Act, 2014 (the "Act") recently received Royal Assent. The Act provides the government the authority to create comprehensive compensation frameworks for certain employers in the broader public sector, and implements a number of measures to enhance "accountability and transparency" in the government and the public sector. While the Act contains many amendments, including those relating to MPP expenses, the focus of this Bulletin is on the impact of the Act on employers, particularly health entities in the broader public sector, and on the amendments made to the The Excellent Care For All Act, 2010 ("ECFAA").
The Act provides government with the authority to establish "compensation frameworks" governing the compensation of certain executives in the broader public sector. These frameworks may include mandatory caps on executive pay. The Act also gives the government the power to obtain additional information regarding compensation from broader public sector employers and establishes mechanisms to recover any amounts paid that may be contrary to the legislation. In addition, the Act provides the government with the ability to make directives relating to compensation frameworks.
Compensation restraints have been in place for the public and broader public sectors for several years. At present, certain broader public sector organizations are governed by compensation restrictions under the Broader Public Sector Accountability Act, 2010 (the "BPSAA"). The provisions under the BPSAA primarily restrict executive and office holder compensation and cap the performance pay organizational "envelope" for all non-unionized employees (not only executives). The compensation frameworks contemplated by the Act, are intended to displace the compensation restraints set out in the BPSAA, part 2(1).
The BPSAA has been amended to provide authority to the management board of cabinet to issue directives requiring certain designated broader public sector organizations to prepare and publish business plans and any other specified business or financial documents of the entity. In addition, management board of cabinet would be authorized to make guidelines for the preparation and publication of such plans and documents by publicly funded organizations that are not required to comply with the same obligations that designated broader public sector organizations are required to adhere to. It is worth noting, that while the guidelines are not necessarily binding they can, and have been, incorporated into transfer payment agreements.
Consistent with the structure of other directive obligations under the BPSAA, hospitals and LHINs may be required to prepare attestations confirming their compliance with any such directives.
The Excellent Care For All Act
As it relates to the ECFAA, the Act:
- Extends the scope beyond public hospitals to include "health sector organizations" (defined to include long-term care homes, community care access centres and any other organization provided for in the regulations that receives public funding);
- Adds the defined term "patient or former patient" which includes a patient or former patient of a hospital, a resident or former resident of a long-term care home, and a client or former client of a community care access centre, in addition to a person with the authority to consent to the treatment or the other matter on behalf of the patient or former patient where the individual is or was incapable with respect to the treatment or other matter at issue;
- Expands the scope of the Ontario Health Quality Council to include the performance of health sector organizations with respect to patient relations; and
- Adds Section 13 (Patient Ombudsman) appointing a patient ombudsman to respond to complaints from patients or former patients and their caregivers against public hospitals, long-term care homes, and community care access centres.
The functions of the patient ombudsman include: (i) receiving and responding to complaints from patients and former patients of a health sector organization and their caregivers, and from any other prescribed persons; (ii) facilitating the resolution of complaints; and (iii) undertaking investigations of complaints made by made by the individuals noted above as well as on his/her own initiative.
The patient ombudsman will further have extensive powers including the power to require any officer, employee, director, shareholder or member of any health sector organization or any other person who provides services through or on behalf of a health sector organization to furnish or produce documents, things or information that, in his/her opinion, relate to a matter being investigated. In addition, the patient ombudsman will have the authority to summon any of the individuals mentioned above and/ or any patient or former patient and examine them under oath; as well as the power to enter and inspect the premises of a health sector organization with consent and/or pursuant to a warrant.
Creation of the patient ombudsman has raised several issues. For example, the fact that the patient ombudsman will be appointed by the Lieutenant Governor in Council and employed by the Ontario Health Quality Council (i.e. an employee of an agency of the government) has been questioned. Being an officer of the Legislature of Ontario, appointed by the assembly, and reporting to the Legislature presents concerns with respect to accountability and objectivity as well as with the appearance of objectivity and accountability. Another issue that has been raised, is that that focusing on the individual patient fails to address the systemic issues that exist within the health care system and that are at the root of the issues affecting patients. Similarly, it has beenargued that exempting the largest single budget item in Ontario from oversight by the Provincial Ombudsman and putting in place somebody who does not have the power to conduct the kind of systemic oversight that the Provincial Ombudsman has, is problematic. Finally, there has been some concern that the Act prevents the patient ombudsman from investigating for-profit organizations, such as retirement homes. This is considered to be problematic, given, among other things, the number of reported instances of abuse by patients of these homes.