What it is-What it Should Be: An Empirical Analysis of the Effect of Procedures and Substantive Arguments on Adjudicative Tribunal Resource Allocation Decisions
Ferreira, Lydia Christine Stewart
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Our current understanding of tribunal resource allocation decision-making is via judicial review of tribunal decisions and/or the capacity, independence and appointment process of tribunal members. This analysis of tribunals provides incomplete information. This qualitative five year case study, however, asked the three following questions: Research Question #1: Do procedures statistically affect the resource allocation decisions of the Board? If so, what elements of the procedures create this statistical effect? The author analyzed the quantitative research results relative to the A4R theory’s four procedural conditions of transparency and concluded that the A4R theory it was not ‘fine grain’ enough to identify the complexity of the tribunal resource allocation decision making. Quantitative analysis revealed that Board decisions were influenced by elements of the Board’s procedure. In particular, the author’s statistical analysis found that the Board’s procedures statistically did affect resource allocation decisions by disadvantaging self- represented parties and, for a certain year, parties not participating in the tribunal’s hearing orally/in person. Research Question #2: What substantive arguments affect the resource allocation decisions of the Board? This study confirmed that submissions by the parties – the patient and OHIP - affected resource allocation decisions. However, within these substantive arguments the research found that patients and administrative requirements played a key role in determining out of country coverage of non emergency inpatient health services (OCCNEIHS). The research also identified that more patients requesting OCCNEIHS argued for treatment to be considered acceptable than argued that treatment domestically would be delayed. The research also identified that there was an absence of arguments regarding the economic implications of OCCNEIHS. Research Question #3 What Should Be the Revised Resource Allocation Decision Making Mechanism? It is recommended that any non-neutral procedures be further examined and potentially eliminated. It was also recognized that significant expert consensus on multiple factors was required in order to make resource allocation decisions. As a result of this research, it is recommended that resource allocation decisions should be based on a multi factorial algorithm comprised of ongoing expert consensus, available publicly and utilized by OHIP for the determination of resource allocation. The Board’s jurisdiction should be revised.