Update: DNS legal action delayed by government
On May 16, 2018, legal representatives for Doctors Nova Scotia (DNS) and the provincial government appeared in court before Justice Michael Wood to argue the government’s motion to have two of the three outstanding legal matters consolidated and proceed by way of a full trial. The two matters at hand were the association’s claim that the government is in breach of the Master Agreement by refusing to pay the $4 million in benefits funding owed to DNS and by using unapproved Alternative Payment Plan (APP) contracts.
After hearing both sides, Justice Wood found in the Attorney General’s favour. The two matters will now become one and will proceed by way of a full trial.
Doctors Nova Scotia is disappointed with the decision because it will result in years of unnecessary delay in resolving these simple contract matters. As the association has said from the beginning, having unresolved legal matters does not serve the best interests of doctors or Nova Scotians.
This situation creates an uncertain environment for physicians, both those currently practising in the province as well as potential new physician recruits to Nova Scotia. That is why the association sought help from the court to resolve these issues and had hoped to have a court bring resolution expeditiously.
The government’s successful motion to have the matters consolidated and proceed by full trial will result in significant delay and prolong the uncertainty in Nova Scotia’s physician recruitment environment. Doctors Nova Scotia continues to believe the government's position is ill-considered and will continue to pursue resolution in order to protect the interests of physicians in this province.
Rather than these two legal matters proceeding efficiently by way of an Application in Chambers (affidavits) as set out by DNS, it is anticipated these matters will not come to trial for several years.
Doctors Nova Scotia has a separate court appearance on June 21 to address the association’s claim that the government is also in breach of DNS’s legislated role as sole bargaining agent by negotiating the terms of APP contracts directly with physicians. The association expects a decision on this matter by the end of the summer.
Contact DNS before you sign contracts
In order to protect physicians’ interests, DNS is advising all physicians to contact DNS before signing any contracts and/or deliverables with the NSHA or with government. Doctors Nova Scotia’s Physician Advisory Team will work quickly to mitigate any risk and ensure there is no disruption in care or physician payments.
On Dec. 4, 2017, Doctors Nova Scotia filed Notices of Application with the Nova Scotia Supreme Court to settle two contract issues with the provincial government. Attempts over the previous 14 months to resolve these contract issues outside of the courts have failed. All doctors in the province could be impacted if the contract issues are not addressed. Ultimately, DNS believes the government is in breach of contract with physicians.
Government applied to the Nova Scotia Supreme Court to have all three matters consolidated. On Jan. 15, 2018, both DNS and the provincial government made their case. The Supreme Court judge asked for more information before making his decision on how to proceed. Doctors Nova Scotia must file the necessary paperwork by Feb. 2. The Nova Scotia government has until Feb. 23 to respond. Both DNS and the provincial government are scheduled to be back before the judge on Feb. 28.
Unapproved APP contract templates
In the past 12 months, the government has unilaterally deviated from the previously negotiated APP contract templates. In some cases, the government started to send “unsanctioned” contracts to physicians for signature (contracts that were not consistent with the approved APP contract templates). In other cases, the government started to ask physicians to sign solely a “deliverables” document with no accompanying contract.
Government took this approach without DNS’s approval or knowledge and, worse, without the knowledge of the physicians who were asked to sign the unsanctioned contracts and/or the deliverables documents.
Both the unsanctioned contracts and the deliverables-only approach expose physicians to unnecessary risk. Physicians could see some of their Master Agreement negotiated benefits refused – such as programs supporting professional liability insurance or continuing medical education, or the 1.5% annual medical services unit rate increase for 2018/19. It is also unclear what process is available to these physicians in the event that they are not in agreement with the government or the Nova Scotia Health Authority (NSHA) about the contract. Where there is no contract at all, government and the NSHA are also exposed to unnecessary risk (since, by way of example, neither the accountability mechanisms nor the notice/termination requirements are clear).
Government refuses to revert to the approved contracts. Doctors Nova Scotia has made every attempt to resolve this through discussion with the Deputy Minister and Minister, without success. Doctors Nova Scotia is now seeking resolution through the courts.
In addition, in the last 12 months the government has not made any payments for physicians’ health benefits as agreed to in the Master Agreement contract. To date, the government owes DNS more than $4 million for these programs. These funds are used to support physicians’ health and dental plan, parental leave and the professional support program. Without these payments from the government, Doctors Nova Scotia has had to deplete the contingency fund that enables us to maintain these important health programs for doctors. The government has taken exception to the association legally retaining a contingency fund for the benefits programs we administer under our contracts with government.
As part of good governance and a prudent fiscal management strategy, the Doctors Nova Scotia Board of Directors had built up a contingency fund over the course of several years, to ensure that physicians’ benefits are protected from changes in the political and health-care environments.Click here for a FAQs about this issue.
This is the first time in recent history that we’ve had to take such action. We did not arrive at this decision lightly. But we are committed to protecting members’ interests so that you can do what you do best: deliver optimal patient care.
Doctors Nova Scotia aims to resolve these contract issues in order to clear the air with the provincial government. Then, all parties will be able to move on to solve some of the health-care system’s more significant challenges, as outlined in Doctors Nova Scotia’s recent report “Healing Nova Scotia: Recommendations for a Thriving Physician Workforce.”