Medicare's D-Day?

Tired of hearing about the woes of our health system? Loath to read yet another editorial on medicare? Take some consolation in the fact that this may be one of the last editorials needed on this topic. On 8 June 2004, the day after the 60th anniversary of D-Day, I returned from a visit to the Supreme Court of Canada where, as one of several intervenors, I listened to a Canadian Charter-based challenge to the constitutionality of our state-imposed restrictions on access to supplementary nongovernment health care. In a trial labeled by media as the “case of the decade,” seven judges listened to many lawyers and a single physician, Dr Jacques Chaoulli, put forth views on the constitutionality of the current restrictions on the rights of Canadians to purchase more health care than the government provides. I heard lawyers representing the governments of Canada, Quebec, and Ontario argue that there was no evidence that wait lists for health care were harmful to patients. I heard a lawyer for the Canadian Health Coalition (a CUPE-supported lobby group) argue that there were no restrictions on access to “private” health care in Canada, and dismiss the suffering that patients experience while they wait as being justified on the basis that the system is a defining feature of Canada’s national identity.

I listened in dismay as two government lawyers argued that the issues being discussed were too complex for the Supreme Court to understand. The questions were so difficult, they argued, that they should be left to (presumably wiser) politicians to decide. I became somewhat frustrated (there is no means of rebuttal), as a government lawyer presented a series of so-called “research facts” that were in reality op-ed articles commissioned or written by special-interest groups.

It was notable that the majority of the provinces and all of the territories were conspicuous by their absence. They had, unlike Ontario and the federal government, presumably recognized that it would be a demanding task and perhaps politically unwise to stand before the Court and argue in favor of keeping patients on wait lists. Also unique was the fact that a group of senators, led by Senator Michael Kirby, was intervening against the Quebec government and opposing the position of the federal government. Our own Canadian Medical Association, with the Canadian Orthopaedic Association, were intervenors in the case, agreeing with us and the appellants that forced denial of choice was unconstitutional, but (timidly in my opinion) seeking a “care guarantee” as the remedy. In the most important legal case involving medicine in Canadian history, the other provincial medical associations, including our own BCMA, had decided to avoid taking their own positions on this important issue and deferred to the CMA.

For the most part, the viewpoints put forward by the various parties were as expected with predictable pro and con positions being taken by the different interest groups. At the end of the day, the judges were clearly tired, but gave the impression that they might be prepared to do what our politicians have not had the courage to do. In response to the point raised by one government lawyer that there was no evidence of patients suffering on wait lists one judge retorted, “Do you think we don’t read the newspapers?” The Quebec government lawyer could only mumble when responding to one of the judges enquiries about private MRI clinics that were operating in that province. “They are only used to diagnose non-medicare covered problems,” he said.

“Can’t they be used to pick up a cancer?” asked the judge. There was no reply from the Quebec lawyer.

What will be the impact of a decision by the Court to allow the appeal? The answer is more dramatic than many have yet realized. A system similar to that in Austria, Belgium, France, and Germany will develop. In those countries, there is universal health care with a difference. They allow supplementary private care and yet there are no waits in the public system. As a new insurance and health delivery system evolves in Canada, tens of billions of dollars in nongovernment funding will be pumped into patient care. Cross-border shopping for health care will cease and pressure will be lifted off the public system, leading to better care and shortened wait lists. Physicians will not have to stop work because of limited hospital resources and practitioners of all types will have the option to spend time practising outside of the public system. Physicians may opt for a different quality of practice where they are not constrained by time limits on seeing patients. Walk-in clinics will remain an option for those who want a quick, superficial assessment, but physicians who prefer to spend more time or see more complex problems will be rewarded accordingly. Public hospitals will be able to generate income by opening up unused beds and operating theatres and may use the revenue to treat others. The brain drain of doctors frustrated by rationing and restricted access to new technology will be reversed.

None of this is unrealistic. Although no system is perfect, for the price we pay, ours ranks with the worst. A recent OECD study reveals that Canada’s health system is the most expensive of all countries that have universal public health care. It also ranks us 14th in disability-free life expectancy, 16th in infant mortality, and 16th in doctors per 1000 population. A Canadian Institute for Health Research study published in May revealed 24 000 patients a year die in Canadian hospitals due to adverse affects, and overall 7.5% of patients suffer serious adverse affects—double that in the United States. WHO ranks our system 30th in the world and below the top 20 in access to new technology. A recent survey showed that half of all children at BC’s Children’s Hospital were waiting a medically unacceptable period of time.

Our system is clearly in need of repair, if not rebuilding. My hope is that the intense and irrational debate and rhetoric that has prevented objective discussion of Canadian medicare will be resolved by the dispassionate and logical intervention of the highest court in the land.

—BD