Canada Health Act challenge

Sometime in the next few months the members of the Supreme Court of Canada will convene to hear an application by two Canadian citizens. The application challenges the ability of the Canada Health Act to prevent Canadian citizens from obtaining private health care insurance that covers the cost of privately provided health care in this country.

In 1996 Dr Jacques Chaoulli and Mr George Zelliotis, by way of two motions for declaratory judgment, asked questions relating to a Canadian’s right to pay for private health services and insurance. A Superior Court judge in Quebec, while providing a judgment, recognized that the health care system in Quebec was seriously flawed. As part of that judgment Judge Piche acknowledged that even though Quebec’s seriously flawed system infringed on an individual’s guaranteed rights to freedom, life, and security under the Charter of Rights and Freedoms, it was not in the “public’s good to decide in favor of the applicants.” However, in May 2003, the Supreme Court of Canada granted leave to appeal that decision and the appeal will likely be heard in early June 2004.

The question finally has been asked, and the answer will have enormous importance for every Canadian. In these types of Charter challenges, the Supreme Court allows concerned individuals and organizations to make application to be granted intervenor status before the Court. Substantial costs (in the hundreds of thousands of dollars) are incurred by intervenors. This unrecoverable fee prevents frivolous applications, I suppose, but at this point there are quite a number of interested applicants, especially from BC.

The same basic question has been articulated by at least two Senate committees in the past two years:

Question as posed by Permanent Senate Committee on Social Affairs in April 2002:

“If access to health care is a right protected under article 7 of the Charter (which protects the rights to freedom, to life, and to security) and if access to health care in the public regime is not offered within reasonable delays, can governments continue to dissuade the offer of health care by prohibiting private insurance?”

And by the Kirby Senate Committee in 2003:

“Is it just and reasonable in a free and democratic society that government ration the supply of publicly funded health services (through budgetary allocations to health care) and simultaneously effectively prevent individuals from obtaining the service in Canada, even at their own expense?”

The answer, according to a group in Vancouver who have organized something called the Charter Challenge Fund, is found in a quote from a recent paper by Professor Patrick Monaghan and Stanley Hart:

“…where the publicly funded health care system fails to deliver timely access to medically necessary care, governments act unlawfully in prohibiting Canadians from using their own resources to purchase those services privately in their own country.”

The Supreme Court has already recognized (in a decision regarding citizens’ rights to seek an abortion at a private facility if a public one does not exist) that if the government creates a public monopoly then fails to provide timely access to those services, then citizens have the right to buy private care. Mr Monaghan, among others, presumably believes that the Supreme Court should rule in favor of the applicants. He and a surprising number of other constitutional authorities make the point that, contrary to the decision of the Quebec Superior Court judge, there is no evidence that the institution of a parallel private medical system in countries with an established, publicly funded system created a hardship on citizens unable to afford access to the private system. In fact, in countries such as France and Germany their publicly funded systems function and coexist very well with a parallel private system, and there is no reason to believe that the same result would not be seen in short order in Canada.

The philosophical underpinnings of the Canada Health Act were posited by Tommy Douglas in Saskatchewan in 1961 and were finally proclaimed in law in 1984. The National Health Act in England and its constitutional counterpart in New Zealand have been altered a number of times over the years in order to ensure the wording of those constitutionally important pieces of legislation properly reflects the realities of the times. Much of the wording of the Canada Health Act was borrowed from both of those bits of British Commonwealth constitutional legislation. However, what we see today is basically unchanged from the day it was presented to colleagues by Premier Douglas in the early 1960s. No attempt has been made to modernize a piece of legislation that constantly fails in its attempts to define a system that today bears no relation to the medical realities of the era in which the act was created.

The Canada Health Act needs to be reworked if it is to survive, and I hope this challenge will be the stimulus that will provide us with an acceptable piece of federal legislation that will not only ensure the survival of a vibrant publicly funded Canadian medical system, but at the same time endorse and encourage a parallel private system of medical care.

—JAW