Back when he was leader of the newly created Canadian Alliance, Stockwell Day was severely criticized by his political opponents over his alleged support for two-tier medicine. A few years later in 2004, Liberal health minister Pierre Pettigrew caused a political firestorm for making the factually correct point that there was room for the provinces to manoeuvre and experiment with innovation in health care, even while respecting the Canada Health Act (CHA).
After witnessing the demolition of Day, and the shouting down of politicians of any stripe who make a frank assessment of the CHA, it seems that members of the Harper government who have expressed such views in the past have lost their voices.
Today’s politicians are well aware of what happens to those who question the status quo. But question it we must, as OECD data show Canada lingers near or at the bottom of developed nations for timeliness of health care while claiming fifth place for health-care expenditures. Adjusted for age, Canada has one of the costliest health-care systems in the world.
But in order to make real change, we must shed our illusions about what is and what is not possible. Timid politicians and vested interests are content to hide behind the CHA. But from a legal point of view, the CHA does not pose the barrier to reform that we have been led to believe it does.
To begin with, provinces have sole authority over their own health-care programs, and the federal government’s power under the CHA is limited to its ability to withhold portions of the Canada Health Transfer. As public policy expert Gerard Boychuk has written, the Act “neither has nor requires provincial consent and is not legally binding on either party.”
And not only are the federal government’s powers over the provinces with regard to issues such as user fees and extra billing weaker than most believe, it is becoming less and less inclined to use them. The federal government does not seem to have ever imposed discretionary penalties on the provinces over failures to uphold the Act, mandatory penalties have declined dramatically over the years, and what few cases go to dispute resolution also tend not to result in reductions in health transfers.
The CHA does not prohibit a province from adding other types of services to its list of insured health services
It is vital to note where the CHA remains silent or, put another way, those subjects over which it provides zero power for the federal government to withhold health transfers to the provinces. The CHA does not dictate how insured health services must be provided; it is silent on who may provide the services; it takes no stance on whether a physician may work both inside and outside the provincial public insurance program; it does not discuss whether fees may be charged for non-insured health services; it says nothing about whether insured services must be delivered by public entities; it does not define “medically necessary services”; and it does not prohibit a province from adding other types of services to its list of insured health services.
Not only does the law allow for major reforms to how health care is delivered, it arguably requires them. Any provincial system that creates a monopoly over the provision of health care and creates barriers to access that jeopardize citizens’ Charter rights is subject to a constitutional challenge.
The landmark case of Chaoulli vs. Quebec, which was decided by the Supreme Court of Canada in 2005, provides an excellent example of how the CHA is less restrictive than most people believe it to be. This case, which has significance for the entire country, makes the powerful statement that if a vital health service is not provided by the government, an individual has the constitutional right to pay for the service either directly or through private health insurance. Although the facts of this case focus on a patient’s right to have timely access to medical services, there are other implications, such as a patient’s right to access medically necessary services that the government chooses not to insure. The majority of the Supreme Court held that Quebec’s law prohibiting private insurance for medically necessary hospital and physician services violated the Quebec Charter, and that lengthy wait times and delays in obtaining treatment cause patients both physical and mental harm.
Chaoulli has created the foundation to dramatically alter the landscape of the Canadian health care system, essentially standing for the proposition that the status quo no longer is a viable or even a legal option. When Canadian governments have a monopoly over the supply of an essential service, they must meet obligations in the supply of that service. If governments wish to be the exclusive providers of health-care services in a “public” system, they must provide health care in a manner that does not deprive individuals of life, liberty, or security of the person. As Chief Justice Beverley McLachlin wrote for the majority in Chaoulli, “access to a waiting list is not access to health care.”
In order to provide timely, medically necessary care to Canadians who need it in the future, in the face of enormous pressure on provincial finances, the provinces will have to act boldly. And to do that they will need to separate Canada Health Act myths from reality.
Michael Watts is a partner at Osler Hoskin and Harcourt LLP. He is the author of the Macdonald-Laurier Institute report “Debunking the Myths: A broader perspective of the Canada Health Act,” (Macdonaldlaurier.ca).