Call for Reasoned Review of OACCAC Media Clause

Submission to Daniel Burns, OACCAC CEO

David R. Williams 12/28/2012

This submission is a request for a fresh, open and honest review of the OACCAC media clause by the new OACCAC CEO, Daniel Burns. The need for a fresh review is driven by growing public concern given the increasing awareness of this specific clause; questions regarding its constitutionality, and concern regarding its abuse. Concerns are also raised regarding the due diligence exercised by the OACCAC given their recent decision to retain the media clause unaltered, and the questionable rationale provided.

Call for Reasoned Review of OACCAC Media Clause December 28, 2012

Contents
Public discussion on home care needs all stakeholders ............................................................................... 2 Request for fresh, open and honest review of the media clause ................................................................. 2 Summary of Waterloo Wellington CCAC (WWCCAC) board review ............................................................. 3 Call for review ........................................................................................................................................... 3 WWCCAC failure in transparency ............................................................................................................. 4 Deliberations behind closed doors ....................................................................................................... 4 Failure to provide public with rationale................................................................................................ 4 Media clause history ..................................................................................................................................... 5 Constitutionality............................................................................................................................................ 5 Background ................................................................................................................................................... 6 Legality vs. Morality ...................................................................................................................................... 7 Patients privacy not justification for retaining media clause ...................................................................... 7 OACCACs media statement ...................................................................................................................... 7 Ministry appointed supervisors position ................................................................................................. 8 Advantages to OACCAC of clause removal ................................................................................................... 8 Conclusion ..................................................................................................................................................... 9 Bibliography ................................................................................................................................................ 10

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Call for Reasoned Review of OACCAC Media Clause December 28, 2012

Public discussion on home care needs all stakeholders

The Ontario Association of Community Care Access Centres (OACCAC) is free to go to the media; Community Care Access Centres (CCACs) are free to go to the media; Local Health Integration Networks (LHINs) are free to go to the media; MPPs are free to go to the media; and the general public is free to go to the media. Each also is free to correct erroneous information in the media. Although all of these perspectives are important, they may not accurately reflect the perspective from within the trenches. For the complete story to be known, the voice of frontline home care workers also must be heard. These workers deserve their freedom of speech and the public deserves to know their unique perspectives in the important discussion of this aspect of health-care service delivery. This is particularly important in the home care world. Homecare is unique. Many people who have not received services are unaware of this aspect of the Ministry of Health. Clients are seen on an individual basis in their private homes, out of the public eye. Community care access centres (CCACs) are government organizations that coordinate this care with independent service provider agencies under contract with them. There is a natural imbalance of power between CCACs and contracted agencies, and sometimes competing interests. There is no collective voice of patients, no collective voice of caregivers, and health-care workers function in relative isolation. CCACs are free to access the media, but frontline workers are denied this same access. And it is well known that vulnerable citizens dependent on their care are not inclined to speak out for fear of reprisal, and service provider agencies do not speak out for fear of jeopardising their contracts. These factors combined create a situation ripe for abuse. In the Waterloo Wellington region, this unequal access has enabled questionable service delivery cuts to go unknown, and therefore unchallenged, in our community.1

Request for fresh, open and honest review of the media clause
This submission is presented to Daniel Burns, new CEO of the OACCAC, to conduct and report to the public on a fresh, open and honest review of the media clause, section 3.6 of the OACCAC contract template. It has been reported that a contract committee recently reviewed the media clause and determined it should be retained. However, if this committee did not review all relevant aspects of this clause, it is imperative the OACCAC conduct a fresh review in the publics interest. To simply ignore relevant information, and be entrenched in a policy which has no justifiable basis would be unethical. Did the committee discuss the fundamental right to free speech as enshrined in the Canadian Charter of Rights and Freedoms and determine compelling reasons that specifically justify overriding these rights? More bluntly, was unconstitutionality discussed at all?

This abuse is well documented in Waterloo Wellington LHIN Briefing Notes and in the conclusions of Corpus Sanchez International in their operational review of the WWCCAC.

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Call for Reasoned Review of OACCAC Media Clause December 28, 2012 Did the committee review the multitude of ways in which patients privacy is protected without the media clause, and specifically conclude the media clause was still needed over and above the existing, stringent, universally known and respected patient privacy protection? Did the committee specifically identify any significant, recurring issues with respect to media contact by frontline home care workers in the seven years of CCAC operations prior to the insertion of the media clause? In other words, what is the risk justifying denying constitutional rights over and above existing stringent privacy protection? Was the committee able to point any specific violations of patients privacy in the media by independent health-care professionals who have no links to a CCAC? Did the committee discuss the natural imbalance of power between CCACs and frontline agencies, and understand how this might be abused in terms of unequal access to the media? Did the committee review the specific real examples of misrepresentation of facts in the media by CCACs where the frontline was blocked from setting the record straight? Did the committee discuss how the public could be made aware of the true story of home care in their community in instances where CCACs misrepresent facts, knowing the frontline is denied their rights to speak out? Did the committee discuss the negative aspects of the media clause in relation to the Ministry of Healths guiding principles of transparency and accountability?

If the committee covered these relevant questions, then please provide their answers. If, however, these concerns were not dealt with in a robust and honest fashion, then I suggest the required due diligence was not exercised by this committee, and a fresh, open and honest review is called for.

Summary of Waterloo Wellington CCAC (WWCCAC) board review

Call for review
Brenda Flaherty, Ministry Appointed Supervisor of the WWCCAC recently requested that their Board deliberate the merits of removing the media clause in WWCCAC contracts with its local service provider agencies. The following was noted in the Board Highlights of the WWCCACs September 26, 2012 Board Meeting: A member of the public requested the Board review the media clause within Service Provider Contracts. The Board will receive a full briefing on the media clause at the next board meeting.2 The results of the WWCCAC Board deliberations of this issue were presented to the public during the open session of their Board meeting, November 28, 2012. It was the WWCCAC Boards unanimous decision to retain the media clause unaltered.
2

September 26, 2012 Board Highlights posted on the WWCCAC Web site www.ww.ccac-ont.ca .

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Call for Reasoned Review of OACCAC Media Clause December 28, 2012

WWCCAC failure in transparency

Deliberations behind closed doors Despite being requested to hold this important discussion of the media clause in open session, and being provided with a clear rationale why this was both legitimate and desirable, the WWCCAC Board chose to hold the deliberations behind closed doors: Our Board will deliberate on your submission Merits of Removing the Media Clause at the November 28th meeting. The Boards decision and the decision making process used will be reviewed in the public session of the November Board meeting. Because your request specifically relates to our service provider contracts, the Board deliberation on the Media Clause falls within the in-camera policy preview.3 The original submission to the WWCCAC Board included the following: It is imperative the Board deliberation be held in the open session of the Board meeting4. The discussion is about the general clause that is in the public domain. It is not about individual specific contracts. The taxpaying public has been negatively affected by the media clause and, in variety of ways, has communicated its concern about this issue. The public should have the right to hear the deliberation. This is about transparency and accountability in a publicly funded health-care organization. This is about free speech.

Despite this reasonable rationale, the WWCCAC Board chose to hold their deliberation behind closed doors. I question the legitimacy of their justification. The WWCCAC Board had a choice to discuss the general issues of the media clause in public, and they chose not to. This, in my view, is a failure in transparency. Failure to provide public with rationale Given that the decision was made to hold the deliberation of the media clause behind closed doors, a logical request was made to Brenda Flaherty and Michael Delisle, WWCCAC Board Chair, to at least clearly articulate in public the rationale for retaining the media clause, should the decision be to retain the media clause. Should the Boards decision be to retain the media clause in any fashion, it is minimally essential that compelling reasons be determined by the Board to justify denial of frontline health-care workers of independent agencies their basic constitutional rights under the Canadian Charter.

3 4

Letter from Michael Delisle, WWCCAC Board Chair, dated November 2, 2012. Submission by David Williams to WWCCAC Board, Merits of Removing the Media Clause , October 6, 2012.

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Call for Reasoned Review of OACCAC Media Clause December 28, 2012 These reasons must be clearly articulated in the open session. Failure to do so would not give the public any confidence that the behind closed doors discussion was honest and complete.5 This reasonable expectation was ignored. The agenda for the November 28, 2012 WWCCAC Board meeting allotted fifteen minutes for presentation of the media clause deliberations to the public. Instead, what the public received was a minute-long reading of a statement which provided no information regarding the framework of the Boards deliberation; no identification of the persons consulted with on this issue, or specifics of their input; and no rationale for the Boards decision to retain the media clause whatsoever. Given that the Boards mandate is to act with honesty and due diligence in the publics interest, their treatment of this issue was completely unacceptable, and the concerned citizens present at the meeting were rightly shocked and dismayed. This again was a clear failure in transparency and, in my view, a failure in the execution of the WWCCAC Boards duties. The need for a fresh review by the OACCAC is even more important given the failure of the WWCCAC to perform an appropriate reasoned review.

Media clause history

According to Kelly Smith, Senior Director Human Resources and Organizational Development, the media clause was inserted in the Ontario Association of Community Care Access Centres (OACCAC) contract template in 2007.6 The WWCCAC followed suit and inserted this contract clause in its contract template for use with all of its local service provider agencies. Although the wording may vary between individual CCACs, the general phrasing is as follows: The Service Provider shall not issue any publicity or news release or otherwise respond to or contact any member of the media pertaining to this Agreement or the Services without prior consent of the CCAC. Note: These are not contracts of an employer-employee nature. The WWCCAC has enforced this media clause on agencies that are deemed independent of WWCCAC.

Constitutionality
The Canadian Charter of Rights and Freedoms renders the media clause unconstitutional, prima facie. Section 2(b) of the Canadian Charter of Rights and Freedoms:

5 6

Letter from David Williams to Brenda Flaherty and Michael Delisle dated November 3, 2012. Email from Kelly Smith, then Interim CEO, to Liz Sandals & David Williams, May 14, 2010.

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Call for Reasoned Review of OACCAC Media Clause December 28, 2012 2. Everyone has the following fundamental freedoms: ... (b) Freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication. Given this fact, the onus is on the OACCAC to put forward legitimate overriding reasons that justify the denial of independent frontline health-care professionals their fundamental rights enshrined in the Canadian Charter. If no such justification exists, the clause should be removed.

Background
Aside from the unconstitutionality of the media clause, our local community has been specifically negatively impacted by the suppression of free speech of frontline workers because of it. For example, in the fall of 2009 and winter of 2010 the WWCCAC imposed sudden and dramatic cuts to frontline services in order to manage an in-year deficit.7 While these cuts were taking place, the WWCCAC senior leaders were actively misrepresenting facts in our local media. In a December 2009 Guelph Mercury article initiated by the WWCCAC, its senior leaders made no mention of cuts to homecare therapy services, and suggested the budget shortfall of the time was being managed by attrition and administrative savings (Kirsch). Not true. Later, in March 2010, as quoted in the Guelph Mercury, Kelly Smith, then WWCCAC Interim CEO, acknowledged there were cuts in therapy services, but asserted these cuts were provincially mandated and had nothing to do with the budget shortfall at all (Kirsch). Again, not true. At the same time that the WWCCAC was misrepresenting facts to the public, behind the scenes senior leaders of the organization were reinforcing the media clause with service providers in the community. Although frontline health-care workers knew the true story, and were seeing first-hand the negative impacts of budget-related service cuts on the most vulnerable members of our society, as well as experiencing first-hand personal financial hardships, they were denied their constitutional rights to speak out and set the record straight. The media clause served as an effective gag order for the WWCCAC. The harsh reality of the WWCCAC budget-related cuts in 2009-2010 was finally made public in July 2012 through the third-party operational review of the WWCCAC ordered by the Waterloo Wellington LHIN (WWLHIN). The operational review report concluded a failure of leadership at the highest levels within the WWCCAC resulted in a degree of organization dysfunction and this dysfunction resulted in a situation where services restrictions were put into place with virtually no advanced notice to the provider community, and some patients were immediately impacted in terms of their ability to access care. The report referred to this as on-again off-again service delivery negatively impacting access to care, quality of care, and the livelihoods of frontline health-care workers (Corpus Sanchez International).8

Service cuts to meet a budget shortfall are well documented in WWLHIN Briefing Notes obtained through an FOI request. 8 The full operational review report can be found at this link.

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Call for Reasoned Review of OACCAC Media Clause December 28, 2012 Interestingly, according to information received under an FOI request, it was very clear that the WWLHINs internal concerns about WWCCAC management, which ultimately lead to the operational review, were partially substantiated by the media reports of the time, including but not limited to anonymous calls to the KW Record that were believed to be made by gagged frontline therapists.9 As indicated in the operational review report, the events of 2009-2010 were not isolated, but part of an entrenched pattern of dysfunctional behaviour (Corpus Sanchez International).

Legality vs. Morality

Given that the clause denies rights enshrined in the Canadian Charter of Rights and Freedoms, the onus is on the organization inserting the clause to articulate compelling overriding factors why individual fundamental freedoms should be denied. If no compelling reasons exist, then the clause would be unenforceable. If the OACCAC cannot articulate any compelling reason to deny fundamental rights, but for other purposes retains the media clause in its contract template, the morality of this position should be challenged. The very existence of the clause, despite its unenforceability, would lead many to believe erroneously that it is enforceable. Many others who understand its unenforceability nevertheless would feel contractually silenced. If the CCACs are acting honestly and with due diligence, these organizations should have nothing to fear in removing the clause. If they are not, those who know the truth should have the right to set the record straight. Ontarians deserve the facts. Therefore, unless a compelling justification is determined for the media clause to exist, the clause should be removed from the contract template. Otherwise one must conclude the OACCAC retention of the clause, although legal, is unenforceable and is an immoral denial of fundamental rights and a deliberate gag order to block truth.

Patients privacy not justification for retaining media clause

OACCACs media statement
In a media statement November 30, 2012, the OACCAC stated The media clause exists to protect the privacy of the people who receive home care, not to protect CCACs.10 This position is bogus. That patients privacy is sacred is universally understood by health-care workers. This privacy was well protected long before the media clause was imposed.

10

Based on information received through the FOI request. OACCAC media statement November 30, 2012.

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Call for Reasoned Review of OACCAC Media Clause December 28, 2012 The frontline healthcare providers being denied their constitutional rights to free expression by this clause are bound by the Privacy Act, the Long-Term Care Act, the Regulated Health Care Professions Act, and their own professional bodies or Colleges. They are also bound by confidentially agreements and policies and procedures within their independent frontline organizations. Everyone knows clients rights to privacy are well protected without this media clause. Therefore, this is not a legitimate compelling justification to retain the media clause. The media clause itself does not even mention patients privacy. Therefore, I distrust the OACCAC statement that patients privacy is the intent of the clause. Instead, I believe this justification is being put forward to retain a clause that is disrespectful of frontline healthcare professionals, unjust, and detrimental to the public interest in order to protect CCACs.

Ministry appointed supervisors position

It is clear to me that Brenda Flaherty does not support the position that the media clause is necessary to protect patients privacy. When I met in person with Brenda Flaherty and Gloria Cardoso, WWCCAC Senior Director of Communications, on September 13, 2012: Ms. Flaherty candidly stated she was unaware of any similar media clause in the contracts of the entire Hamilton Health Sciences (HHS) system, of which she is a senior executive. She also stated that she could see no negative consequences from the absent of a media clause within the HHS. In fact, in our meeting, in the specific discussion of the media clause, there was no mention of patients privacy at all. There was mention, however, of the WWCCAC concern about their public image, candidly expressed by Gloria Cardoso.

Ms. Flaherty, with her background as a regulated health-care professional and hospital administrator, understands patients privacy is fully protected without a media clause. Finally, the fact that Ms. Flaherty was willing to have the merits of removing the clause discussed at all indicates that, from her perspective, patients privacy was not at risk. After all, if patients privacy were at risk, the deliberation would have been a non-starter.

Advantages to OACCAC of clause removal

There are many benefits to the OACCAC to remove the media clause: It is a simple, cost-free action. It would send a strong signal the OACCAC is ready and willing to treat the frontline as true equal partners. (Retention of the clause, in fact, is offensive to many frontline workers and is detrimental to establishing the partnership relations needed for CCACs to perform their mandate).

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Call for Reasoned Review of OACCAC Media Clause December 28, 2012 It would demonstrate the OACCACs commitment to the Ministry of Healths stated guiding principles of transparency and accountability. It would demonstrate the OACCACs respect for the Canadian Charter of Rights and Freedoms. It would demonstrate appropriate leadership on the part of the OACCAC in promoting home care system improvement. The organization would be applauded by the public and by frontline workers.

Conclusion
I am requesting the Daniel Burns, new CEO of the OACCAC, to perform a fresh, thorough and thoughtful review of the media clause. It is my opinion removing this clause would be tremendously beneficial to all stakeholders, and there is no downside to this decision. The results of this new review should be made public. I am requesting Mr. Burns to confirm in writing to me and to the Office of the Ombudsman that this refresh review will be conducted. This should include a specific reasonable due date for the review to be made public. The confirmation itself should be provided not later than January 15, 2013.

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Call for Reasoned Review of OACCAC Media Clause December 28, 2012

Bibliography
Corpus Sanchez International. "Ensuring Effectiveness & Accountability at the Waterloo Wellington CCAC." June 21, 2012. Kirsch, Vik. "Access to therapies the focus of controversy." Guelph Mercury 25 March 2010. . "Health services centre facing $1.7M deficit." Gueph Mercury 17 December 2009.

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