WEIGHING THE BALANCE
Submission to the Review of the Regulated Health Professions Act of Ontario
30 December 1999
 

The following submission focuses on four general areas identified by the Request for Submissions for the Review of the Regulated Health Professions Act of Ontario; Fairness, Accountability, Protection from Harm and Quality of Care. The last two areas have been combined for consideration in this submission.

1.    FAIRNESS

The issue of fairness in the Regulated Health Professions Act Review speaks to access and equity in all matters related to the regulatory bodies in Ontario. In this submission particular focus will be given to the question of equity for international physicians and surgeons who seek access to the profession, and the licensing requirements of the College of Physicians and Surgeons of Ontario.

The Case of Discrimination Against International Medical Graduates

Licensing of international physicians and surgeons in Ontario is a complicated process which involves several stakeholders. According to the registration requirements of the CPSO, international medical graduates must complete the following:
With the exception of the Medical Council of Canada Evaluating Exam, these are the same requirements for Canadian graduates. A key issue of fairness in the evaluation of a professional's competencies is the criteria being used. The emphasis should not be on the route taken to acquire a particular set of skills, but rather an evaluation of those skills. There is a need for regulatory and licensing bodies to remain open to new and innovative methods of comparing courses and training within a comparable and equitable scale. The examination and training requirements which Canadian medical graduates must undergo need not necessarily be the same for international medical graduates, because the latter have already gone through these processes in other jurisdictions. Rather their competencies should be assessed, and if there are areas identified that require further training, examinations should be from that particular stage onward. All international physicians and surgeons should not be required to begin their integration into the health care system at the same point as new Canadian graduates. Developing methods that are comparable to the peer assessments and quality assurance programs of licensed physicians in Ontario is a more equitable approach.

To the best of our knowledge, the colleges are cognisant of the barriers and unfairness of the system, but they maintain in private conversation that they cannot take any initiative to make the process fair because OHIP billing numbers are being restricted and monitored by the Ministry of Health. Interference of the Ministry of Health should be entirely stopped. The system is based on the concern that if more physicians are issued billing numbers, the government will have to pay more. By this philosophy, not only are international medical graduates denied their fundamental rights, but the consumers of the Ontario health care system, the public, are denied any choice. Even if government cannot afford additional billing numbers, there should not be an inextricable relationship between government budgetary priorities and access to a professional medical license.

Notwithstanding the above arguments, there remains a problem in the current system of access for international medical graduates to the examinations provided by the RCPSC and CFPC, as registration in a residency program in Canada is usually required. In Ontario, access to residency programs for international medical graduates is limited to the International Medical Graduate (IMG) Program of the Ontario Ministry of Health which currently provides 24 places, although the recent recommendations of the McKendry report will raise this number to 36.

The selection process for the IMG program does not rely on an objective assessment of knowledge, skills and experience (i.e. merit based evaluation) but rather acts primarily as a gatekeeping mechanism. On 3 December 1999, approximately 275 international medical graduates who had already successfully completed the Medical Council of Canada Evaluating Exam wrote the competitive entrance exam for the IMG program. Admission to the program is not based on a standard pass score for the exam. 72 applicants will be invited back for a clinical exam in January, from which only 24, or if the recommendation from the McKendry report is implemented immediately, 36, will be admitted to the program. This admission process is intentionally designed to discriminate against candidates who may otherwise qualify based on a merit based assessment of their professional competence.

This particular instance of systemic discrimination has been identified by a Board of Inquiry in Neiznanski v. University of Toronto:

Foreign-trained physicians occupied about 500-1100 or 1200 residency positions in the past but this will fall to less than one hundred (Pre-Internship Program graduates) shortly. A foreign-trained Canadian citizen or landed immigrant physician is now discriminated against by the present system for gaining admission to residency programs as of 1994, because he/she would be excluded from consideration on the merits (other than through the limited number entry through PIP). Clearly this approach is unfair to such a candidate and just as clearly this approach means that not all the most qualified persons will become specialists to the detriment of both the profession and the public…

Clearly the maintenance of necessary public standards is a reasonable and bona fide ground for discrimination on the basis of jurisdiction of education or training, but the question, then is - can the public interest be protected while at the same time the foreign-trained person's application for licensure is accommodated without undue hardship? Is there available an alternative, less onerous approach that would ensure the public interest is protected? The obvious answer to this question, as seen from the case at hand, is that the residency program itself will only graduate those residents who meet the medical profession's standards. (Neizmanski, 24 CHRR D/193)


The only other access to residency programmes for international medical graduates in Ontario is through the Canadian Residency Match Service (CaRMS) for placement in other provinces. This programme runs two separate iterations for matching medical graduates to residency positions. International medical graduates do not have access to the first iteration in which 94.3% of applicants were successfully matched in 1999 (78.3% of these were matched within their top three choices). The statistics for International Medical Graduates from 1995-1999 on the other hand, show that less than 10% of the applicants, on average, were placed in residency programmes across Canada. These figures clearly demonstrate that international medical graduates experience a radically different rate of placement in the match. It is clear then that there exist systemic barriers to gaining access to residency programmes through the CaRMS match for international medical graduates.

Both routes of access to residency (IMG program of the Ontario Ministry of Health and Long-term Care, and CaRMS) raise legal questions of equality under section 15(1) of the Canadian Charter of Rights and Freedoms. The Supreme Court of Canada has made clear decisions regarding the positive obligation on government to ensure equal access under this Section. In Eldridge v. British Columbia (Attorney General) the Court ruled that the provincial government had a responsibility to ensure that the benefit (in that case, the provision of sign language interpretation for deaf persons where such interpretation was necessary for effective communication in the delivery of medical services) was equally accessible to all. The benefit in this case, is the right of international medical graduates to be evaluated objectively in a merit based assessment and to have equal access to residency positions.

In setting requirements that are not equally accessible (i.e. placement in a residency program and, in turn, access to RCPSC and CFPC examinations), the College participates in a broader system of discrimination that has a clear and demonstrated adverse impact for an identifiable group - international medical graduates. It is the position of AIPSO that the College, and other like regulating bodies, have a responsibility and a positive obligation under the Charter to prevent discrimination, and it is the proposal of this submission that the Regulated Health Professions Act Review consider the proactive implementation of a section in the Act that explicitly addresses equity objectives for regulatory bodies.

Implementing Licensing Equity

It has been argued that a regulatory body could, in legal course, be ordered to implement a "licensing equity plan" in order to prevent systemic discrimination and eliminate past barriers, should a human rights decision or a court order based on a Section 15 ruling, impose remedial action. According to Cornish, MacIntyre and Pask, such a general "corrective measures program" might include the following measures :

Currently there is no section of the Act which places an obligation on any regulating body to implement equity plans. As such, AIPSO specifically recommends that the Regulated Health Professions Act incorporate the following within the body of the legislation:


2.    ACCOUNTABILITY

As part of the structure of the Colleges, Councils are in place to act as boards of directors to which members of the public are appointed by the government to ensure that public interests are represented. The concern regarding these appointments is the lack of public access, process and transparency. It is the position of AIPSO that significant community stakeholders should have access to these appointments so that the concerns and issues of the public can be fully addressed, and real public accountability can be achieved.

In order to achieve actual equity institutionally, it is the position of AIPSO that the current system of appointing public members to the council be replaced by a public and transparent process of nomination and election which is open to community stakeholders.

3.    PROTECTION FROM HARM AND QUALITY OF CARE

While the framework for addressing these issues within the Act is generally limited to individualized actions of health care professionals, and quality assurance programs to ensure professional standards, the general availability of health care or assurance of service provision is not specifically addressed.

The recent release of Dr Robert McKendry's report for the Ontario Ministry of Health and Long-term Care on physician resources provides a clear and unequivocal message:

Is there a problem with physician services supply and/or mix and/or distribution in Ontario now? Will there be a problem in five or ten years' time? Based on the available evidence, the answer is yes. Given the growth in the population, the increase in physician workload, the changing attitude of physicians, the increasing number of women practising medicine, the number of closed practices and the growing number of communities looking for physicians, the current supply of physicians and particularly physician services (i.e. effective supply) is not sufficient to fully meet the health care needs of Ontarians.

Protecting the public from harm and providing adequate health care includes the real provision of services, including physician resources. The report goes on to note specifically the need for 534 physicians in underserviced areas alone. The shortage of physicians Ontario-wide is now estimated to be close to 1000.

It is the position of AIPSO that given the fact that health care in Ontario is funded and managed by the government of Ontario, there should also be legislative measures in place to ensure adequate resources. It seems appropriate that since the RHPA governs the distribution of power around issues of licensing and regulating health care professionals in Ontario, there should also be legislative responsibility in this Act to ensure that sufficient professional resources are generally available to all communities throughout Ontario. To this end, all available resources, including international medical graduates, must be given full and equal consideration.

CONCLUSION

In conclusion, AIPSO would like to thank the Health Professions Regulatory Advisory Council for the opportunity to participate in this review, and is willing to provide further information if required.