Shooting from the Hip: The Health of Universal Health Care Following Chaoulli v Quebec

The Supreme Court of Canada (“SCC”) decision in Chaoulli v Quebec (Attorney General), [2005] 1 SCR 791 [Chaoulli], was seen by many commentators as a significant blow to the future of public health care in Canada. Some of these criticisms were canvassed by Dean Monahan in his post in defence of the majority judgment. These fears were mainly premised upon the belief that the decision would lead provincial legislatures to repeal the ban on private health care insurance, creating a two-tier health care system. According to this view, a two-tier system would result in a draining of doctors, resources, and funds away from the public health care sector into the private sector, creating a situation where ability to pay would determine access to health care.

Often when an important decision is released, there will initially be a frenzy of commentary from the media and academics which explores all possible implications arising from the decision. While the shelf-life of this commentary varies depending on the case, this attention usually dies down. Many of the opinions expressed or speculations raised are not followed up to see whether they match what actually occurs following the decision. This has not been the case with the Supreme Court of Canada’s judgment in Chaoulli, the political and legal consequences of which are still being felt (and heard) to this day. Still, it may be helpful to provide a summary of some of these developments and to examine what implications they may have going forward.

Political Developments

The Quebec legislature’s response to the Chaoulli decision was the tabling of Bill 33, which was passed on December 13, 2006. The new Act does not allow for a carte blanche provision of private health care insurance. Instead, private insurance is limited to certain “specialized medical treatments” as specified by government, currently consisting of hip or knee replacements and cataract surgeries — these being the procedures with the longest wait times.

The private insurance policy must cover all costs relating to the procedure, which would be provided in “specialized medical centres” that only employ non-participating doctors outside of the public system. While this incursion into private health care may appear benign and limited in scope, the Act provides the government with the ability to expand the list of services that may be covered by private insurance through regulations — the exceptions could become the rule without any amendments made to the Act itself.

Further, the Act establishes hybrid specialized medical centres classified as “associated medical clinics,” private-public partnerships that allow patients to receive specialized medical treatments in private hospitals that are funded by taxpayers but which may charge additional user fees to the patient. Private clinics are already opening in anticipation of this “double dipping.” However, there has been some concern that this initiative may violate the Canada Health Act, RSC 1985, c C-6 [CHA], which prohibits the charging of facility fees for publicly insured services. The federal government may refuse federal funding under the CHA if a violation is found. However, if this hybrid system survives, it would provide further incentive for health care professionals to move outside of the strictly public system to take advantage of additional revenue opportunities.

Still, there are some aspects of the changes to Quebec health care that are likely to be welcomed by advocates of universal health care. In particular, the Act provides mechanisms for the centralized management of wait times for specialized health services and provides the Minister with the authority to provide alternative access to ensure wait times are reasonable.

It is still too early to tell whether Bill 33 lays the groundwork for a two-tier system in the future or is a limited solution tailored to address the problems raised by the SCC’s decision. So far, other provinces have not been too eager to make changes to their current single-payer model. The Alberta government briefly considered a plan for a two-tier model but quickly abandoned it due to public pressure, both from other provinces and from Alberta residents.

Legal Developments

While the legal consequences of the Chaoulli decision were limited to the Province of Quebec, many believed that it was only a matter of time before similar challenges would be raised in courtrooms across the country. Such actions are now starting to trickle in. Two recent cases attempt to use the Chaoulli precedent to achieve opposite ends: one argues for an extension of public health care benefits while the other, like Chaoulli, challenges the ban against private health care insurance.

In Flora v Ontario Health Insurance Plan (2007), 83 OR (3d) 721, Adolfo Flora challenged a decision by OHIP to deny him funding for a liver transplant, which he then successfully underwent outside of Canada. Flora’s argument, which failed at Divisional Court, was that in a universal health care system where patients cannot obtain private insurance, the decision to refuse funding for a treatment that would, and indeed did, save his life violated his right to life and security of the person under the Charter.

This case reverses the Chaoulli argument by starting from the same premise but then arguing that the government must provide coverage (or in this case, reimbursement) beyond what is stipulated by the regulations in order to comply with the Charter. This is not surprising since the right to obtain private health care insurance would be of little help to Flora after the fact. This case is now seeking leave to appeal before the Ontario Court of Appeal.

Another case, filed last year in Alberta by William Murray, challenges the Alberta government’s monopoly on health care coverage and its refusal to allow him to undergo a hip resurfacing procedure in Alberta. While George Zeliotis, one of the plaintiffs in Chaoulli, had to wait a year to receive a hip replacement surgery, Murray could not receive his surgery altogether because of an age eligibility requirement under Alberta law. He was forced to pay for the procedure out of his own pocket in another province — you guessed it: Quebec. Murray’s action is currently stalled while his lawyers attempts to seek certification as a class action and is being backed by the Canadian Constitutional Foundation (a private, conservative version of the now-defunct Court Challenges Program, which had all of its funding pulled by the Conservative government).

While these two cases may seek opposite results, the ultimate result may be the same. Both cases highlight the vulnerability of Canada’s universal health care system in light of the SCC’s decision in Chaoulli and may lead to the collapse of the universal system across Canada as we know it.

Commentary

One problem is that the majority judgment in Chaoulli fails to provide any guidance on what level of health care is “reasonable” and sufficient to comply with Charter requirements. While it may not have been the SCC’s intention, such uncertainty allows the s. 7 argument to be extended to the point where it may be impossible for the government to maintain a single-tier health care system that does not infringe some individuals’ Charter rights.

In Patrick Monahan’s post, he argued in favour of the Chaoulli decision by stating that “any healthcare system which deliberately and systematically imposes pain or even death on innocent individuals in the name of improving healthcare provided to others cannot be justified either morally or legally, since it fails to treat all individuals as equally deserving of concern and respect.” In my comment posted at the end of the Dean’s post, I questioned whether any universal health care system without unlimited funding could meet this standard: “Any viable public healthcare system must allocate its limited financial resources ‘deliberately and systematically’ with the result that some people may not receive the care necessary to avoid pain or death. If even one person suffers such a fate, does the single-tier system as a whole survive Charter scrutiny?” The Flora and Murray cases show that this line of reasoning has not been overlooked.

If either of the two current cases is successful, one can expect the floodgates to open to innumerable future actions. While provincial governments may respond to a single case by granting the particular benefit sought, they cannot do so if there are countless other claimants waiting in the wings. The only practical solution would be to allow everyone access to private health care insurance and to institute a two-tier system. Without the ban on private insurance, there would be no basis for patients to claim that the government has an obligation under the Charter to provide any health care benefit whatsoever. Those with the financial resources to obtain private health care would probably not be too concerned with such a position. For the rest of us, these developments seem ominous indeed.

It appears the public health care system itself may be in need of emergency treatment. My guess would be hip surgery.