A vacant wheelchair.
A vacant wheelchair. Credit: Henry & Co. / Unsplash Credit: Henry & Co. / Unsplash

In an administrative decision that has stirred significant controversy, the Treasury Board announced a major change in the Public Service Health Care Plan (PSHCP) in July 2023, specifically targeting its long-term physiotherapy benefits. This change is reminiscent of a past contentious 2014 policy shift whereby the retirees’ cost-sharing ratio was increased. The 2023 decision has sparked discussion and concern,  among those dependent on these physiotherapy benefits and their caregivers, including retirees in particular.

The 2023 policy change in the PSHCP is notable for its departure from the standard norms of administrative decision-making that give policy changes their legitimacy. Such norms, notably procedural fairness and transparency, are crucial for addressing concerns about infringements on Charter rights and the wider socio-economic implications of the decision.

The economic and social ramifications of the PSHCP decision are profound, particularly for retirees. The reduction in physiotherapy benefits will lead to increased out-of-pocket expenses, putting additional strain on their financial resources and forcing difficult choices between health care and other essential expenses. Personal narratives appearing in the media have already painted a vivid picture of the decision’s real-world impact.

Beyond individual concerns, the decision touches on broader societal issues, such as the role of public health plans in supporting the infirm and the societal values surrounding care for them. It leads to discussions about our collective responsibility towards the well-being of all members of society, and particularly those in their later years as they are the ones most likely to be in need of health care benefits.

The recent alterations to the PSHCP, as initiated by the Treasury Board, must be examined in the light of the legal distinction between consultations and negotiations. By gathering feedback before any decision is made, the consultative process, which is integral to administrative decision-making, protects the interests of vulnerable groups, such as retirees with disabilities. During consultations fiduciary duties come to the fore to ensure that interests of all stakeholders are adequately represented.

However, the process adopted by the Treasury Board blurs the lines between consultation and negotiation. Unlike the transparent and agreement-focused nature of consultation, the PSHCP decision-making process took on the secretive nature of union negotiations, which take place between representatives of organizations with equal standing. This obscurity in the process raises concerns about procedural fairness. Procedural fairness, a cornerstone in administrative law, requires unbiased decision-making and ensures all impacted groups, even those unrepresented, have a voice. Furthermore, it was inappropriate for the Treasury Board to recognize the National Association of Federal Retirees, a group of retired activists without any such legal standing, as representative of all retirees. The retirees association sent the Treasury Board survey, aimed at gauging the opinion of beneficiaries, exclusively to their dues-paying members, introducing the potential for bias into the survey result. In the end, as it did in 2014 with the cost-sharing ratio increase, the association deviated from expected advocacy behaviour by signing the consensus agreement without exercising their right to demand a review of the process.

The Agraira v. Canada case introduces a reasonableness standard for administrative decision-making. This standard emphasizes that decisions must not only align with the administrative body’s authority but also with the expertise demanded by the context of the case. While it is recognized that deference should be given to an administrative decision-maker’s expertise for decision’s that fall with the decision-maker’s scope, a decision can be deemed unreasonable if it does not adequately take into consideration essential factors such as expert consultation, adequate representation, and societal impact, particularly in complex cases such as the decision to eliminate chronic physiotherapy benefits.

The decision to eliminate chronic physiotherapy benefits required considerable knowledge and expertise that goes beyond the scope of the Treasury Board’s mandate, and the reasonableness standard calls the execution of these items into question: 

1) Expertise in the importance of physiotherapy in the treatment of various neurological conditions, including multiple sclerosis, ALS, and Parkinson’s, among others,

2) Knowledge about the frequency of these conditions in the membership of the PSHCP,

3) Insight into the comparative effectiveness of other paramedical treatments such as massage therapy, chiropractics, and acupuncture as alternatives to physiotherapy,

4) An understanding of the reasons for the cost of the various physiotherapy specializations so as to correctly set a reimbursement fee schedule for physiotherapy treatment, and

5) The ability to create and administer an unbiased survey that accurately reflected the preferences of the PSHCP membership and adequately reflected the needs of important minorities in that membership.

Charter implications also loom large in this scenario. The Treasury Board’s decision could potentially be seen to conflict with the Canadian Charter of Rights and Freedoms, specifically concerning equality rights (Section 15) and the right to life, liberty, and security of the person (Section 7). The elimination of benefits might create a discriminatory distinction based on age and physical ability, and the high cost of chronic physiotherapy could deny necessary healthcare to retirees and others with limited financial resources, impacting their health and quality of life. It is worth noting that even the 2014 changes to the cost sharing ratio for retirees’ contributions did make a concession to equality rights by allowing for an exemption for those retirees receiving the Guaranteed Income Supplement.

Moreover, there’s a delicate balance to be maintained between the administrative objectives of management of costs versus management of the expectations of plan beneficiaries who are also employees. The PHSCP is part of the total compensation package that the Government of Canada provides to employees to help it recruit and retain talent. As such employees in need of plan benefits are likely to have adjusted their careers with the expectation that these benefits would be available not only during employment, but also during their retirement years, especially if these benefits, such as chronic physiotherapy benefits, have been a long-standing feature of the plan. This expectation is a factor in assessing whether the administrative decision to alter or eliminate these benefits is reasonable.

Indeed, in a case with some parallel to the current one, the Ontario Superior Court has ruled that employers may only reduce retiree benefits after retirement if there is clear and unambiguous language demonstrating that the employer has reserved the right to do so in its communications with employees (O’Neill v. General Motors of Canada). Significantly, over the years, the Treasury Board has never communicated any indication that PSHCP benefits could be reduced in the future.

Economic and Social Implications

The PSHCP decision has profound economic implications, especially for retirees. For those requiring long-term physiotherapy, the reduction in benefits translates to increased out-of-pocket expenses, potentially straining already limited retirement budgets. This financial burden will force some retirees to choose between essential health services and other critical expenses, a dilemma that poses both ethical and practical concerns.

Personal anecdotes offer a window into the real-world impact of this policy change. Stories from affected individuals, as highlighted in various reports including those by CBC News (as discussed at the December 7, 2023 meeting of the parliamentary Standing Committee on Government Operations and Estimates, OGGO), reveal the tangible struggles faced by employees and retirees. These narratives range from retirees grappling with increased healthcare costs to those having to forego necessary treatments altogether. Such accounts underscore the severity of the decision’s consequences.

Contributing to the unreasonableness of the elimination of chronic physiotherapy benefits beyond $1500 is a $90 cap that has been placed on all physiotherapy services. The old plan covered the first $500; then there was a so-called “corridor” where the beneficiary had to pay out of pocket for the next $500. It is touted as an improvement of the new plan that this corridor has been removed. However, because long-term physiotherapy often requires specialization of equipment and expertise, it can cost up to 50% more than the $90 cap. The unreasonable result is that the “improvement” of removing the corridor is almost no improvement at all for those most in need of physiotherapy benefits.

While all interviews in preparing this article were off the record, revealing a hesitancy among stakeholders to directly confront the Treasury Board, the Canadian Physiotherapy Association, in a nuanced statement on their website, subtly critiques the policy shift: “The CPA will continue to monitor its progress and advocate for an equitable approach to physiotherapy coverage that takes into consideration the needs of those with chronic conditions, and older and disabled populations.” This carefully worded position, emerging from an otherwise neutral announcement, underscores the broader apprehensions within the healthcare community regarding the PSHCP changes.

The broader social implications of the reduced benefits cannot be understated. This policy shift will lead to increased strain on the healthcare system, as those unable to afford physiotherapy are forced into publicly-funded, long-term care homes because of the gradual deterioration of their condition and consequent loss of physical mobility.

The issue extends beyond individual financial concerns, touching on larger societal values around care for the elderly and the role of public health plans in supporting retirees. This decision, thus, becomes a focal point in the discussion about the kind of society we aspire to be – one that upholds a commitment to the well-being of all its members.

Advocacy and Public Awareness

Given that the decision to eliminate chronic physiotherapy benefits within the PSHCP has been made, the question arises: Can anything be done? The answer highlights the indispensable role of the media in democratic societies, particularly in influencing policy changes where legal challenges against government decisions by individuals often see limited success and direct engagement between politicians and the public is rare. Parliamentary forums like committee meetings often prioritize institutional narratives. Here, civil service representatives are given the opportunity to present their viewpoints, which can marginalize public concerns. Therefore, leveraging media platforms becomes a strategic imperative for effective advocacy.

The media provides an alternative arena for public discourse, enabling the bypass of traditional, often restrictive, channels. By doing so, it ensures that the broader implications of policy decisions, such as the elimination of chronic physiotherapy benefits, are thoroughly examined and contested in the public sphere, potentially leading to a governmental policy shift. This narrative is supported by the CPA’s public stance and off-the-record insights from union leaders and healthcare professionals, emphasizing the critical role of advocacy and public awareness in addressing and potentially reversing these policy changes.

Conclusion

In summary, the PSHCP decision to reduce physiotherapy benefits raises significant concerns in legal, economic, and social realms. The lack of procedural fairness, potential Charter conflicts, and the disproportionate economic impact on retirees highlight the urgency of this issue. Moreover, the PSHCP’s role in attracting and retaining skilled professionals underscores its importance for public service efficiency and the broader public interest.

The role of media and public advocacy in this context is crucial, given the limitations of legal recourse and the importance of public opinion in influencing policy. Hence, this article serves as a call to action for increased awareness and advocacy for a re-evaluation of this decision. It’s imperative for individuals, communities, and media outlets to collectively voice their concerns, highlighting personal stories, and mobilizing public opinion. The importance of safeguarding the health and well-being of those most in need of PSHCP benefits, and upholding fair and equitable health care policies, cannot be overstated.

Philip Lillies

Philip Lillies is a retired professional who now lives with his wife in Ottawa, in the Abiwin housing co-op. Throughout his career as an internal auditor, he was a fervent labour activist, contributing...