Consultation needs to be better defined in LHIN Act

There is no question the Ontario government spent much political capital framing the Local Health Integration Networks (LHINs) as local decision-making bodies that would be informed by local needs and priorities, made in and by the community.

Ontario Ombudsman Andre Marin’s report “The LHIN Spin” makes clear that the legislative underpinnings never supported that rhetoric.

One of the central problems is that the obligation to consult the public is very weakly defined in the Local Health System Integration Act (LHSIA).

The Act does suggest ways in which consultation can take place, but there is no minimum established.

Further, as OPSEU’s own 2008 legal challenge demonstrated, there is no obligation to consult anyone provided the “integration” decision is agreed to by the provider(s) and the LHIN (see page 9 of the Ombudsman’s Report). It is only when the LHIN challenges a voluntary integration, or unilaterally orders one, is there any real opportunity for the public to review the details and offer an opinion.

Given the LHIN is also the funding body, the chances of a provider pushing through an integration the LHIN disagrees with is fairly remote. All the incentives are towards coming to agreement – and subsequently keeping everything deep under wraps.

The LHINs maintain they only have a responsibility for community engagement at a systems level, or what they often refer to as the “10,000 foot level.” They say community engagement on specific restructuring plans is supposed to be the responsibility of health care providers, such as hospitals, not the LHIN.

The Ombudsman writes: “It is one thing to engage in blue-sky thinking and philosophical debate about the future of health care in general. It is quite another when concrete proposals have been put forward which may have a direct and significant impact on the services available to citizens in the foreseeable future.”

In OPSEU’s court case, Rouge Valley Health System had kept the transfer of mental health beds from Ajax to Scarborough secret until the hospital board officially passed it. Three days later the LHIN rubber-stamped it. There was no public consultation beforehand by either party despite its very real impact on mental health patients in the West Durham region. Not even the LHIN’s mental health advisory group was aware of it.

Further, documents revealed in the case indicated the LHIN had been meeting in closed-door meetings with Rouge Valley to discuss this issue for months beforehand.

In the wake of public outrage over having being left out of the decision-making process, the LHIN held public consultations after the fact. When the results of those consultations were presented back to the LHIN board, there were some expressions of regret. The staff was quick to jump in and remind them that the decision had already been made. Oh well.

Given the distance between sites of a single hospital corporation can be considerable – for example, it takes about an hour to drive from the Walkerton site to the Kincardine site of the South Bruce Grey Health Centre – the government recognized the problem we raised in court and placed an obligation on the hospital to consult when transferring services between sites. This was later embedded in the accountability agreements between the LHINs and the hospitals, however, there is little evidence to suggest that this is common practice or that this is happening in any meaningful way.

Under LHISIA the government is obligated to review the LHIN legislation after five years. Instead the Premier has ignored his own legislation and is now talking about doing so after the election. At one point he openly mused about not having a review at all until he was reminded it was a legislated requirement.

The LHINs have damaged their brand across much of the province. The Ombudsman’s report only echoes sentiments that were already out there in communities like Niagara and Hamilton. It will be difficult for any LHIN to engage in consultation now and be taken seriously by the community.

However, if the McGuinty government chooses to try and fix the problem, they may want to begin by following the Ombudsman’s recommendations to better define the consultation requirements and to enforce and enhance rules on transparency. They may also want to broaden the requirements to include voluntary integrations. More on this to come.

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