Merits of Removing the Media Clause

Submission to the WWCCAC Board

David R. Williams 10/6/2012

Showing great leadership, Brenda Flaherty, Supervisor, has called on the WWCCAC Board to have a full and reasoned review of the media clause inserted in WWCCAC contracts with its service provider agencies. This report presents to the Board the perspective that all stakeholders, including the WWCCAC, would benefit enormously by removing this clause.

Merits of Removing the Media Clause October 6, 2012

WWCCAC Supervisor Supports Review

Brenda Flaherty, Supervisor of the Waterloo Wellington Community Care Access Centre (WWCCAC) has requested that the Board deliberate the merits of the media clause in WWCCAC contracts with its local service provider agencies. The following was noted in the Board Highlights of the WWCCAC 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.1

Submission for Board Review

I believe the media clause should be removed. I am presenting this perspective to the Board and request a copy of this report be provided to each Board member prior to the Board meeting for thoughtful consideration. At the very core of this position is the Canadian Charter of Rights and Freedoms which alone is reason enough to question the legitimacy of the media clause. This report is also based on solid information gained through a personal connection with frontline workers; correspondence with the WWCCAC, Guelph MPP Liz Sandals, and Minister of Health Deb Matthews; research of available reports including, the Corpus Sanchez International operational review, media reports and information received from the Waterloo Wellington Local Health Integration Network (WWLHIN) through a freedom of information request filed in 2011.

Public Discussion on Health-care Needs All Stakeholders

The WWCCAC is 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 health-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 health-care service delivery.

Media Clause
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)

September 26, 2012 Board Highlights link

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Merits of Removing the Media Clause October 6, 2012 contract template in 2007.2 The WWCCAC followed suit and inserted this contract clause in its contracts 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. Also, the WWCCAC has extended this enforcement to all autonomous health-care workers who are under contract with these agencies, regardless of their personal contractual relationships.

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: 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 WWCCAC 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.3 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.
2 3

Email from Kelly Smith, then Interim CEO, to Liz Sandals & David Williams, May 14, 2010. Service cuts to meet a budget shortfall are well documented in WWLHIN Briefing Notes obtained through an FOI request.

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Merits of Removing the Media Clause October 6, 2012 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 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).4 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 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 health-care providers.5 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 are found, then the clause would be unenforceable. If the WWCCAC cannot articulate any compelling reason to deny fundamental rights, but for other purposes retains the media clause in its contracts with service provider agencies, 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.

4 5

The full operational review report can be found at this link. Based on information received through the FOI request.

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Merits of Removing the Media Clause October 6, 2012 If the WWCCAC is acting honestly and with due diligence, the organization should have nothing to fear in removing the clause. If it is not, those who know the truth should have the right to set the record straight. The community deserves the facts. Therefore, unless a compelling justification is determined for the media clause to exist, the clause should be removed. Otherwise one must conclude the retention of the clause, although legal, is an immoral denial of fundamental rights and a deliberate gag order to block truth.

OACCAC Position
The stated intent for the media clause provided by Margaret Mottershead, OACCAC CEO, is to protect the rights of our clients to privacy.6 This makes no sense. 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 cannot be used as the compelling justification to retain the media clause. OACCAC Board Chair, Teddene Long, stated: The terms and conditions in the procurement of services agreements are negotiated by the parties to the agreement, which then are subject to contract law. The OACCAC is not a party to these agreements and as stated in Margaret Mottersheads letter to you, nor are we aware of any plans to remove or alter the clause in question.7 By these statements, it appears the OACCAC CEO and Board Chair cannot articulate legitimate justification for the denial of fundamental rights to free speech. It is also seems they wish to be absolved of any responsibility for the media clause, despite the fact the clause is maintained in their contract template on the OACCAC Web site. This is a sad commentary of leadership at the OACCAC. The positive in this communication is that the OACCAC has made it abundantly clear the WWCCAC is free to choose to remove the clause under its own authority, an action that could be precedent setting for the province.

6 7

Letter from Margaret Mottershead, OACCAC CEO, to David Williams, dated August 31, 2012 Letter from Teddene Long, OACCAC Board Chair, to David Williams, dated September 12, 2012.

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Merits of Removing the Media Clause October 6, 2012

Advantage to WWCCAC of Clause Removal

There are many benefits to the WWCCAC to remove the media clause: It is a simple, cost-free action. It would send a strong signal the WWCCAC is ready and willing to treat the frontline as true equal partners. It would demonstrate the WWCCACs commitment to the Ministry of Healths stated guiding principles of transparency and accountability. It would demonstrate the WWCCACs respect for the Canadian Charter of Rights and Freedoms. It would demonstrate leadership on the part of the WWCCAC within the province. The organization would be applauded by the public and by frontline workers.

Open Session
It is imperative the Board deliberation be held in the open session of the Board meeting. 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.

Community Engagement
It has been communicated to the public that a full briefing of the media clause is to be given at the October 2012 Board meeting. Interested members from our community have applauded this decision by Brenda Flaherty. Attendance of the public at the Board meeting should be expected.

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Merits of Removing the Media Clause October 6, 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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