Pending case could change Canadian healthcare landscape

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Publication September 2016

On September 6 the Supreme Court of British Columbia began to hear a case that could fundamentally change the landscape of Canadian healthcare.

The case involves a challenge to four sections of the Medicare Protection Act, which the plaintiffs allege violate and are contrary to sections 7 and 15 of the Charter in that they are alleged to have the effect of preventing or severely limiting the development and availability of private healthcare, particularly when the public health system cannot guarantee reasonable healthcare within a reasonable time. The plaintiffs are also demanding that the court grant an order pursuant to Section 52 (1) of the Constitution Act 1982 under which these sections are deemed to have no force and effect given the extent of their violation of the Charter.

Alternatively, the plaintiffs are seeking a ruling that such provisions are inconsistent with the Charter and therefore are of no force and effect given such inconsistency and declare a suspension declaration if the act is amended by the province.

Supreme Court of Canada divided

The first part of the debate concerning the ban on private insurance for health services covered under the public healthcare system was instigated in the decision rendered by the Supreme Court of Canada in Chaoulli v Quebec (Attorney General) on June 9, 2005.

The decision profoundly divided the Supreme Court of Canada, who ruled that the Quebec’s legislative ban did not violate the Canadian Charter but violates the Quebec Charter of Human Rights and Freedoms insofar as the public system is inadequate based on the failure of Quebec’s public healthcare system in the mid-1990s to provide reasonably timely access to healthcare. As a consequence of the profound division, the Chaoulli decision was limited in strict legal terms to the application of the Quebec Charter and to the province of Quebec. The second part of this debate, which concerns the argument under which prohibitions on user fees, extra-billing and selling private insurance for services already covered by public health insurance may or may not violate the Constitution, remains to be resolved.

Since its launch in 2009, this judicial saga1 has caused extensive debate and attracted considerable attention. While some stakeholders contend that Canada Health Act2 and provincial legislation adopted in furtherance of this act is literally killing Canadians, many other stakeholders argue the legalization of a two-tier system would not only undermine the values upon which the Canadian system is based, but also Canadians’ ability to obtain equitable access to proper medical care at reasonable cost. More than 150 expert witnesses are now expected to testify at trial.

Experts already predict the case will be appealed and make its way to the Supreme Court of Canada. In any event, a win for the plaintiffs may have significant implications for Canada’s healthcare and insurance systems, as it could also lead to the undoing of Canada’s single-payer system to create a multi-payer system and thus allow Canadians to pay privately for medically necessary services covered by the public system and doctors to charge patients for such services.

More than 10 years after the Chaoulli decision and massive reinvestments into public healthcare systems by each level of government, it remains to be seen how experts and government officials will argue before a judge over the Canadian public healthcare system’s performance. Recent OECD health statistics rank Canada, as compared to its peers amongst the richest OECD countries, among the worst performers on key metrics such as timely access to healthcare and physicians, while generally ranking it amongst the best performers for per capita spending in healthcare by the government.

Footnotes

1 http://www.savemedicare.ca/court_documents

2 https://releve.canlii.org/en/ca/laws/stat/rsc-1985-c-c-6/latest/rsc-1985-c-c-6.html

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