Over the last two days I have  been exploring some of the ramifications of Bill 20: Insurance (Vehicle) Amendment Act, 2018,  In particular, I asked the Attorney General several questions during committee deliberations in order to get a sense of his intention for the proposed changes to legislation.

I have received a number of emails from people expressing concerns with section 29 of this act where “minor injuries” are defined. Some have implied that all psychological and psychiatric conditions are being prescribed as minor. This is incorrect (as my exchange with the Minister unpacks).

Below I reproduce the text and videos of our exchanges. The exchanges are helpful as they correct several misconceptions that are out there.

The bill ended up passing 43-31. What’s remarkable about the vote is that 11 BC Liberal MLAs were not present. It’s likely that they decided to head home early. Had the three BC Green MLAs voted against the bill it still would have passed as the BC Liberal caucus didn’t bother to show up.

Text re: Section 1 Questions

A. Weaver: We’re trying to do some coordination across…. On this actual theme of definition of “health care practitioner,” I have four specific professions. I’m wondering if they’re included within the present definition of health care practitioner and, in particular, the sub definition of a medical practitioner.

The first one is registered psychologists. The second one is psychiatrists. The third one is chiropractors, and the fourth one is physiotherapists. Would those four be considered health care practitioners under the definition of “medical practitioner” here?

Hon. D. Eby: Physiotherapist, psychologist and chiropractor will all be in the regulations, so they would be under (c) in the definition, “a person in a prescribed class of persons….” And then a psychiatrist is a medical practitioner so is captured by section (a) of the definition, “a medical practitioner.”

Text re: Section 8 Questions

A. Weaver: I just have a couple of quick questions for clarification on section 8. Section 8 deals with section 28.1, and in particular, it says several criteria that a health care practitioner referred to in subsection (1) must provide.

My question to you is: does this, by any way, enable ICBC to not accept the results from a single health care practitioner and insist that the patient go and see another health care practitioner or not?

Hon. D. Eby: All insurers have the ability, in relation to personal injury or disability, to compel insureds to attend a certain medical practitioner. The intent of this section is to avoid that where possible, where you are going to your own physician or your own physiotherapist or your own chiropractor, and ICBC can get that information directly from them. That’s what this section enables.

A. Weaver: Thank you for the answer. If said patient were to not like the opinion that was received by one practitioner and went to seek an opinion from another practitioner, would both of those opinions be required to be sent along to ICBC — yes or no?

Hon. D. Eby: If an individual went to multiple practitioners to get a different opinions, in theory, yes, ICBC could ask for those opinions from the different practitioners that an individual saw. Whether the individual is motivated by wanting a second opinion or simply feeling that they weren’t receiving adequate service from one service provider and switched to another service provider, ICBC could get records from both under this provision.

A. Weaver: With respect to the section 28.1(2), and then the number (c) in there, it talks about “the injured person’s condition at the time health care was provided”. This is rather broad. What are the limitations upon such a request? Are there any such limitations?

Are these persons’ conditions relevant to the accident, or is ICBC able to get the entire medical history of a patient as part of this process?

Hon. D. Eby: ICBC is legally restricted to only asking about information that’s relevant to the claim — so the person’s condition at the time health care was provided relevant to the accident, injury.

A. Weaver: My final question is: to what extent is the information that is being sought from the health care practitioner protected by the personal information and privacy act? Is there a requirement for ICBC to work within the context of that act? And is that agency or is the Privacy Commissioner being consulted as part of this process?

Hon. D. Eby: Yes, ICBC is bound by the Freedom of Information and Protection of Privacy Act, which is, in part, as a complaint mechanism overseen by the Privacy Commissioner for British Columbia.

Text re: Section 18 Question

A. Weaver: I just had a couple of questions on this section to seek clarification. The questions are with respect to fees charged by health care providers or practitioners under three potential scenarios.

My question to the minister is this. Let’s suppose there are three people. One person goes to a health care practitioner, and that health care practitioner agrees to charge a certain amount that’s well within the fees, as prescribed under this act here.

A second one goes there and is willing to charge a little bit more. But the person actually has a benefit plan of some form that is allowed to step in or works with WCB or works with ICBC in some manner.

And the third goes to a physiotherapist, who decides that they’re going to get the service, but ICBC is only willing to pay a certain amount. They’re going to have to bill and charge the additional amount.

Is this covered in some way so there can be no additional billing, no additional attempts to tap into third-party insurances? What does this section do with respect to those health care practitioners who don’t agree to pay the price as set by this regulation?

Hon. D. Eby: In the first scenario, where the person goes in and the benefit level paid by ICBC either exceeds or is equal to the service charge, then obviously, there’s no issue there.

The second scenario. Where someone’s got a long-term disability arrangement of some kind or insurance of some kind that might top up benefits — so they go into the service provider and then there’s an additional charge — that would be dependent on the person’s insurance terms and whether they covered that kind of thing. It’s certainly possible that that could happen. There is no rule against that happening here.

In the third scenario, where someone goes in and the service provider is charging what could be called a user-fee or an additional charge on top of what ICBC will pay in benefits, we looked at saying, “No. You are not allowed to do that” — just to ban it outright in the act. The risk of doing that is that you may limit people from accessing the health care provider of their choice. We decided to leave it as, okay, ICBC will pay market rates, and then people can choose their provider. If they want to pay extra to go to practitioner X when practitioners Y and Z are charging at the ICBC rate, then they can choose to do that.

There are a couple of ways in which ICBC can encourage providers to charge at the market rate. One is direct pay, where ICBC pays the provider directly. It’s invisible to the individual who comes in for the appointment, and it’s much easier for the provider to administer. ICBC could easily say to someone who’s charging in excess of their rates: “Look, we’re not going to do direct pay with you, because you’re charging beyond what we’re willing to pay.”

The other is that ICBC can provide a list of providers that are offering services at the set rate in the area of the person who is injured in the accident, and in order for the practitioner to be on that list, they need to be at the rate set by ICBC. That’s a fairly significant stream of customers.

So there are a couple of ways for ICBC to motivate that through carrots. We looked at the stick, and we decided not to do it out of a risk that someone may be denied access to the health care practitioner of their choice because the health practitioner says: “No. We don’t do ICBC at all. We refuse to do that.”

A. Weaver: I just wanted to quickly follow up. I do note the hour. I would like to thank the minister for taking this approach of focusing on the patient as opposed to focusing on litigation. I do notice that that is a theme that we’re seeing through here, and we’ll exploring this further at committee stage. The focus is on recovery and the patient now as opposed to litigation and getting funds after the fact, which is historical. There’s no comment here.

I do want to stand and note the hour and suggest that perhaps we would like to adjourn for the day and continue at some other time.

Text re: Section 25 Question

A. Weaver: Just for the record, I’m wondering if the minister might provide some context as to why this section, to limit health care costs, is being included so that an independent person looking at this clarification here would be able to get a sense of what the minister is thinking of in terms of the purpose for introducing the definition of “health care loss” so that that can be limited.

Hon. D. Eby: What it does is it assures British Columbians that they’ll be able to get the health care costs covered, as they need them, going forward. And it restricts expenses associated with time, administration and expert opinions on future cost of care awards, where the judge gets out the crystal ball and tries to determine how much health care is going to cost in the future and tries to figure out how much a person’s going to need and how much it’s going to cost and provides an award based on that projection.

This provides some level of certainty to the individual and to the court about the fact that future cost of care will be covered and that the rates will be reviewed. And there are the safeguards with inflation, which we talked about previously, on a go-forward basis.

Text re: Section 29 Questions

A. Weaver: I have a number of questions here. It will give the members opposite a little break. I think we’re going to be canvassing section 29 for a fair bit. They can compose their thoughts.

I have four quick questions with respect to the issue of injuries here. Section 29 — in 101 here — defines three types of issues. One is “minor injury.” It also defines “permanent serious disfigurement” and “serious impairment.”

My understanding is perhaps consistent with the minister’s, but I do note that there is an awful lot of confusion out there in the general realm with respect to the intentions of the minister with bringing in this legislation. So I’d like to pose a couple of specific examples to determine whether or not they would be covered under “minor injury,” or whether in fact they would be eligible for further litigation down the road.

The one that’s been the most common is the concern that’s expressed with respect to psychological or psychiatric conditions. Now, my understanding of this…. I’m hoping the minister can correct me if I’m wrong. Let us suppose we have two individuals. The first individual is in a car crash. That first individual gets very depressed after the car crash. It’s been declared by the medical practice that that depression has arisen as a direct consequence of that car crash. It was a depression-and-anxiety issue that responded well to medication, and six months later, the person bounced back and actually was able to continue forward. That’s case 1.

Person No. 2 is the same person who enters into a much, much deeper depression, perhaps with PTSD, and a year and half later, they still have not been able to recover. My question to the minister is: how would both of those individuals be treated in light of the definition of “minor injury” and “serious impairment”?

Hon. D. Eby: The second one is easier, in that it is definitely not within the cap. On the first one, there is a definition of “minor injury” that has two parts. First of all, the first part of the definition of “minor injury” is a negative definition. It says that it’s an injury that “does not result in a serious impairment or a permanent serious disfigurement.” So if it results in a serious impairment and it’s a psychiatric injury, then it’s out of the definition of “minor injury.”

 If it doesn’t result in a serious impairment and it’s a psychiatric injury or another type of injury that is within the second part of the definition, then it would fall within the “minor injury” definition. So the other types of injuries are abrasions, contusions, lacerations, sprain or strain and pain syndrome — we talked about psychological or psychiatric conditions — or an injury in a prescribed class of injury captured in the regulations.

Serious impairment — the question of whether or not it’s a serious impairment — is also a defined term. A “serious impairment” is an impairment that “(a) is not resolved within 12 months, or another prescribed period” — by regulation — “if any, after the date of an accident, and (b) meets prescribed criteria” — by regulation. So you’ll see there are two pieces to this, and there is space within regulation for additional definition.

I’ve posted a paper on the Ministry of Attorney General website about our intentions related to the “prescribed criteria” around “minor injury.” It might just assist the member to know that next week, there is a meeting with the Doctors of B.C. — the B.C. Psychological Association has also been invited — to assist us in determining how the regulations could narrow the psychological or psychiatric conditions even further than is already the case for the current minor injury scenario.

A. Weaver: Another two examples that I’d like to give. Let’s suppose that there is somebody who was driving somewhat excessively over the speed limit — and maybe didn’t get caught, but there was some inkling that that person was at fault — and that that person gets into an accident with two cars. In the one car, you have an individual who’s got brain damage and becomes a quadriplegic, and they’re seeking pain and suffering, etc., and also legal process for them, as a result of this.

In the second person, you have a few broken bones that lead to some chronic issues. Perhaps it’s a broken hip, and there are some chronic pain issues that last beyond a year. They don’t just last a few months. They last beyond a year. How would both of those be treated?

Again, I’m seeking clarification for the purpose of communicating the intent of this section to a broader audience. How would both of those individuals be treated under the classification of minor injury? I suspect the brain damage and quadriplegic doesn’t apply, but perhaps the broken bones, where you actually lead to a chronic condition that lasts — say chronic hip arthritis or something — after an accident.

If the minister could expand on that.

Hon. D. Eby: No individuals with brain injuries or individuals with broken bones are subject to the limit on pain and suffering awards or the minor-injury definition.

A. Weaver: Let’s suppose it isn’t broken, but in fact you have a sprain with a cut, and that cut gets infected. You get a flesh-eating disease response that doesn’t leave you permanently disfigured, but it leads to a substantive, long-term injury. That infection gets into your bone. You get chronic arthritis. How would that person be treated in this example?

Hon. D. Eby: If it meets the definition of serious impairment — so it’s beyond 12 months and the prescribed conditions — then there would be no cap. In addition, I guess it depends on the laceration that resulted in the flesh-eating disease or the impact on the individual, because a permanent, serious disfigurement of the claimant would also remove it from the minor-injury definition.

A. Weaver: My final question. Let’s suppose you have a drunk driver who’s driving along and runs into a number of people. Some people get serious injuries that are very extensive, a couple of other people minor injuries, as defined here, and one person has a psychological disorder as a result. How would the issue of these three different classes of people be treated under these definitions when a drunk driver or somebody texting was involved?

Hon. D. Eby: Each individual would be assessed based on their own injuries, whether or not they fell within the definition of minor injury or not.

As for the driver, for anyone that was driving dangerously, there are Criminal Code and Motor Vehicle Act provisions relating to that — insurance consequences, potential jail time and so on — that flow from that, if they were engaging in dangerous conduct while they were driving — drinking and driving and so on.

Videos of Exchanges