Graham W.S. Scott, Q.C.

Presentation toAssociation of Local Public Health AgenciesThoughts on Options to Improve the Function and Configuration of the Local Public Health Unit SystemJune 28, 2005 Graham W.S. Scott, Q.C.

Health Board Leadership • Members of a health Board are in a position of trust and held to a high standard of conduct • Generally subject to the same basic duties of stewardship imposed on business and non-profit corporations • Board members may be shielded from liability where they have acted with due care • Board members’ duties are spelled out in: • the HPPA • the statutory programs • the regulations and guidelines

Board of Health • Board members provide strategic leadership and policy direction • establish general policies and procedures which govern the operation of the Health Unit • accountable to the community for ensuring that its health needs are addressed by the appropriate programs and ensuring that the Health Unit is well-managed • establish overall objectives and priorities for the organization in its provision of health programs and services, to meet the health needs of the community

Board of Health (cont’d) • hire the Medical Officer of Health and Associate Medical Officer of Health with the approval of the Minister • responsible for assessing the performance of the Medical Officer of Health and Associate Medical Officer of Health • The Board must approve the budget • The relationship with the MOH is central to the success of the Health Unit

Governance Policy Framework • Critical elements of an effective Health Unit governance policy framework include: • Principles of Governance and Board accountabilities • Roles and responsibilities of the Board of Directors • Roles and responsibilities of individual Directors • Guidelines for the selection of Directors • A range of specific skills and expertise • Board Standing and Ad Hoc Committees which are streamlined to support the Board

Principles of Governance and Board Accountabilities • “Hybrid Policy Leadership” model (adapted from the Pointer and Orlikoff model) • clear differentiation between governance and management • Board focused on strategic leadership and direction • Board establishes policies, makes decisions and monitors performance of the organization’s business and its own effectiveness • management is focused on development of policy options, reports to support decisions and monitoring by the Board and management of operations • small number of Board Committees tied to key governance responsibilities Denis. D. Pointer & James E. Orlikoff, Board Work: Governing Health Care Organizations (San Francisco: Jossey Bass Inc.,1999)

Principles of Governance • The Principles of Governance should ideally include: • a statement of the Board’s obligations to act in the best interest of the Health Unit • a statement of the Board’s accountabilities under the HPPA to the Ministry of Health and Long-Term Care and the communities served • the model of governance which the Board is using • provisions with respect to transparency and the approach to decision-making

Roles and Responsibilities of the Board of Directors Roles include: • Policy, Formulation • establish policies to provide guidance to those empowered with the responsibility to manage Health Unit operations • Decision-making • choose from alternatives which are consistent with Board policies and that advance the goals of the Health Unit • Oversight • monitor and assess organizational processes and outcomes

Roles and Responsibilities of the Board of Directors (cont’d) Responsibilities include: • Defining ends • Providing for excellent management • Ensuring program quality and effectiveness • Ensure financial viability • Ensure Board effectiveness

Governance vs. Management • Ensure Board understands and clearly differentiates between governance and management • The perennial question is – what is the “right level” of Board involvement? • The MOH reports to the Board on issues relating to public health programs and services under the Act • The staff is subject to the direction of, and is responsible to, the MOH • No room for the direct involvement of the Board in the management of the affairs of the Health Unit

Roles and Responsibilities of Individual Directors • Explicit roles and responsibilities of individual Directors are necessary: • to enable Directors to have a clear understanding of what will be expected of them • to have an objective benchmark against which to assess the performance

Roles and Responsibilities of Individual Directors (cont’d) • Specific roles and responsibilities include: • identifying conflict of interest • team work • Board solidarity and confidentiality in decision-making • expectations re the level of attendance and participation at Board and Committee meetings • participation in Board evaluation • participation in Board and individual Director evaluation

Board of Health MPSHU • The failure to address these governance dynamics and the central role of the MOH was at the root of most of the problems in Muskoka-Parry Sound • The Board seemed to believe it could act as it saw fit with the office of the MOH • Wrong in policy and wrong in law! • Must be a relationship of mutual respect and understanding • Board of MPSHU dysfunctional • 11 specific failures of the Board related to effective Board governance

Muskoka-Parry Sound Assessment • Problems of the Board longstanding • Two predecessor Boards had not been effective in their stewardship of the MPSHU • The overall governance and operation of the Board was not only dysfunctional, but chronically dysfunctional because: • the roles and responsibilities as between the Board and the medical/technical/administrative arm of the operation were undefined to poorly defined • the Board was dominated by concerns about cost at the expense of addressing the raison d’être of the MPSHU as a health delivery organization

Muskoka-Parry Sound Assessment (cont’d) • the Board did not respect the role of the MOH and was divided on the issue of the duties and responsibilities of the MOH • the Board did not require or expect the MOH to attend all Board meetings and report regularly • there was constant upheaval in the office of the MOH for the MPSHU • the Board ignored the governing legislation when convenient • there was little mutual respect between the Board and its employees • there was no clear leadership structure at the senior levels of the MPSHU

Muskoka-Parry Sound Assessment (cont’d) • there had been no qualified Director of Finance or Human Resources for over a year, particularly notable when control of costs was the number one concern of the majority of the Board • communications between Board and staff followed unconventional routes • some municipal Board members acknowledged that being on the Board of Health had not been a matter of choice and they would have preferred another Board or appointment • many Board members lacked certainty as to whether the MPSHU had the ability to function effectively in the face of a major crisis

Muskoka-Parry Sound Assessment (cont’d) • many Board members were aware of these problems and seemed unable to resolve the issues to the point that they questioned whether they should continue on the Board • dysfunctionality was identified as a major concern in a consultant’s report to the Board over five years earlier and remained unresolved • MPSHU problems were deeply rooted with an entrenched governance structure that focused, not on the delivery of public health programs and their adequacy, but on the cost of public health

Muskoka-Parry Sound Assessment (cont’d) • The primary responsibility for the Board was the delivery of public health programs and services to ensure the protection of the residents of the two Districts • Notwithstanding a previous assessor’s report, a SARS case in 2003 and the interim report of Justice Campbell, the Board did not carry out any serious health program or performance review at the Board level, which as a minimum, would seem an essential response to critical external reviews • The Board required a complete overhaul

Muskoka-Parry Sound Assessment (cont’d) • Every public Health Unit in Ontario is a crucial part of our front line defence against disease and health risk. Any Health Unit that is dysfunctional puts at risk, to the extent it weakens that defence, the health of its citizens. Anything less than the measures outlined above, will weaken our front line defence • The failure of the Board to ensure consistent leadership at the management level raised questions as to the need for a thorough review of management operations

Municipal Dilemma • Does a conflict of interest exist between a municipal councilor’s duty to the taxpayer and his or her duty to the community as a steward of the public health system? • Muskoka-Parry Sound issue • Disconnect between the Board’s interpretation of its role, requirements of the HPPA and principles of good governance • Fundamental misunderstanding of how duties as Board members differed from duties as elected municipal representatives

Municipal Dilemma (cont’d) • Elected municipal representatives are expected by their electorate to manage municipal affairs in accordance with the resources available • Pressure to deliver for as little tax possible • Incentive to pick and choose among priorities to keep taxes down • To focus on priorities that provide a positive reception • Temptation to consider the Health Unit as just another municipal service

Municipal Dilemma (cont’d) • That is not how it works • Potential conflict termed the municipal funding dilemma by Justice Campbell • The municipalities fund public health, a provincial program, from a limited local property tax base • Covered succinctly in Justice Campbell’s Interim Report, “SARS and Public Health in Ontario”

Municipal Dilemma (cont’d) • A municipal councilor on a Board of Health has two hats: • the municipal politician hat : keep taxes down • the public health hat: fight disease • The councilor cannot say: “no increases because I made a political promise to hold taxes” • Only one hat can be worn on the Board of Health • Bound by legal duty under HPPA where first loyalty must lie

Municipal Dilemma (cont’d) • The Board has a statutory duty to meet the budget requirements • The mandatory programs and services a requirement • Does not diminish the importance of ensuring that the budget is well-managed • Some Boards of Health have chosen to treat the Health Unit as an element of protest over cost downloading • Illegal behaviour rationalized as a political dispute and/or • The belief that it would be too much trouble for the province to take action

Observations on the Assessment • Governance review-based • Powers in the Act provided sufficient authority to carry out the assigned responsibilities • The Act should provide the CMOH or the Minister MOHLTC the power to dismiss the Board and place the governance of the Health Unit under an interim arrangement – i.e., Supervisor/CMOH/small interim Board • The presence of an interim MOH was extremely valuable for the governance review and the independent advice was an important component

Observations on the Assessment (cont’d) • Governance audits of Health Units should be carried out regularly • Governance training and regular internal governance reviews for Health Boards are essential • Difficulty of Conflict of Interest for elected municipal officials • Preferable to appoint non-elected officials to Board • Add to Provincial representation

Graham W.S. Scott, Q.C.Managing PartnerMcMillan Binch Mendelsohn LLPSuite 4400, BCE PlaceBay Wellington Tower, 181 Bay StreetToronto, ON M5J 2T3 416-865-7247 graham.scott@mbmlex.com

Graham W.S. Scott, Q.C.