Just Medicare: The role of Canadian courts in determining health care rights and access

Journal of Law, Medicine and Ethics

Volumn 33, Issue 4, 2005, Pages 669-680

  Flood, Colleen M ^a  

^a UNIVERSITY OF TORONTO   (Canada)

Author keywords

[No Author keywords available]

Indexed keywords

CANADA; CANADIAN CHARTER OF RIGHTS AND FREEDOMS; CONFERENCE PAPER; HEALTH CARE AND PUBLIC HEALTH; HEALTH CARE DELIVERY; HEALTH INSURANCE; HOSPITAL ADMISSION; HUMAN; INSURANCE; LEGAL APPROACH; LEGAL ASPECT; ORGANIZATION AND MANAGEMENT; PATIENT RIGHT; PUBLIC HEALTH;

CANADIAN CHARTER OF RIGHTS AND FREEDOMS; HEALTH CARE AND PUBLIC HEALTH; LEGAL APPROACH;

CANADA; HEALTH SERVICES ACCESSIBILITY; HUMANS; INSURANCE COVERAGE; INSURANCE, HEALTH; NATIONAL HEALTH PROGRAMS; PATIENT RIGHTS; PRIVATE SECTOR; WAITING LISTS;

EID: 32144433677     PISSN: 10731105     EISSN: None     Source Type: Journal    
DOI: 10.1111/j.1748-720X.2005.tb00535.x     Document Type: Conference Paper

References (79)

1. Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K. 1982): chapter 11 [Charter].
2. Chaoulli v. Quebec (Attorney General), 2005 SCC 35 [Chaoulli].
3. A copy of the judgments, briefs, and related materials is available at 〈http://www.law.utoronto.ca/healthlaw/〉 (last visited September 27, 2005).
4. See also C. M. Flood, K. Roach and L. Sossin, Access to Care, Access to Justice: The Legal Debate over Private Health Insurance (Toronto: University of Toronto Press, 2005).
5. Order forms are available at 〈http://www.utppublishing.com/pubstore/ merchant.ihtml?pid=8665&step=4〉.
6. S. Vail, Canadians' Values and Attitudes on Canada's Health Care System: A Synthesis of Survey Results by Stephen Vail (Ottawa: Conference Board of Canada, 2000): at 11.
7. Commission on the Future of Health Care in Canada, Building on Values: The Future of Health Care in Canada, Final Report, (Saskatoon: Commission on the Future of Health Care in Canada, 2002) (Commissioner: R. J. Romanow, Q.C.): at xvi, available at 〈http://www.hc-sc.gc.ca/english/pdf/romanow/pdfs/ HCC_Final_ Report.pdf〉 (last visited September 27, 2005).
8. Canadian Institute for Health Information, Drug Expenditures in Canada 1985-2004 (2005): at 8, available at 〈http://secure. cihi.ca/cihiweb/ dispPage.jsp?cw_page=AR_80_E〉 (last visited September 27, 2005).
9. Canada Health Act, R.S.C. 1985, c. C-6.
10. The five basic criteria are comprehensiveness, accessibility, portability, universality, and non-profit administration. For a discussion see C. M. Flood "The Anatomy of Medicare," in J. Downie, T. Caulfield and C. Flood, 2nd ed., Canadian Health Law and Policy (Toronto: Butterworths, 2002): 1-54.
11. See C. M. Flood and S. Choudhry, "Strengthening the Foundations: Securing the Modernity of the Canada Health Act," in T. McIntosh, P. G. Forest and G. P. Marchildon, eds., The Governance of Health Care in Canada: The Romanow Papers, vol. 3 (Toronto: University of Toronto Press, 2004): 346-387.
12. C. M. Flood and T. Archibald, "The Illegality of Private Health Care in Canada," Canadian Medical Association Journal 164, no. 6(2001): 825-30.
13. The Romanow Report, supra note 4.
14. Almost every major commission has, however, recommended the expansion, albeit incrementally, of the universal program into home care and pharmacare. See the Romanow Report, Ibid. See also the Standing Senate Committee on Social Affairs, Science and Technology, The Health of Canadians - The Federal Role, Vol. 6: Recommendations for Reform, Final Report (Ottawa: Senate Standing Committee on Social Affairs, Science and Technology, 2002) (Chair: The Honourable M. J. L. Kirby), available at 〈http://www.parl.gc.ca/37/2/ parlbus/commbus/senate/com-e/soci-e/rep-e/repoct02vol6-e.htm〉 (last visited September 27, 2005).
15. See Canadian Institute for Health Information, Health Care in Canada 2005(2005): at 27, available at 〈http://secure.cihi.ca/cihiweb/dispPage. jsp?cw_page=PG_376_E&cw_topic=376&cw_r el=AR_43_E〉 (last visited September 27, 2005).
16. For a discussion see C. M. Flood, M. Stabile and C. Tuohy, "What is In and Out of Medicare? Who Decides?" in C. M. Flood, ed., Just Medicare: What's In, What's Out, Who Decides? (Toronto: University of Toronto Press, expected February 2006).
17. Carolyn Tuohy, Mark Stabile and I are the principal investigator of a 3 year program of research exploring this issue. It's a multidisciplinary project with 10 investigators. To learn more about the project or read one of the 6 working papers please go to our website at 〈http://www.law.utoronto.ca/ healthlaw/basket/〉 (last visited September 27, 2005).
18. The Charter, supra note 1.
19. The Canadian Bar Association Task Force on Health Care, What's Law Got to Do with It? Health Care Reform in Canada (Ottawa: Canadian Bar Association, 1994);
20. D. Greschner, Discussion Paper No. 20 - How Will the Charter of Rights and Freedoms and Evolving Jurisprudence Affect Health Care Costs? (Ottawa: Commission on the Future of Health Care in Canada, 2002), available at 〈http://www.hcsc.gc.ca/english/care/romanow/hcc0499.html〉 (last visited September 27, 2005);
21. M. Jackman, Discussion Paper No. 31: The Implications of Section 7 of the Charter for Health Care Spending in Canada (Ottawa: Commission on the Future of Health Care in Canada, 2002), available at 〈http://www.hcsc.gc.ca/english/ care/romanow/hcc0499.html〉 (last visited September 27, 2005).
22. Doe et al v. Manitoba, 2004 MBQB 285 (Can LII).
23. Ibid, at para. 78. Justice Oliphant writes: "In my view, legislation that forces women to have to stand in line in an overburdened publicly-funded health care system and to have to wait for a therapeutic abortion, a procedure that provably must be performed in a timely manner, is a gross violation of the right of women to both liberty and security of the person as guaranteed by s. 7 of the Charter."
24. This film depicts Quebec hospitals as both chaotic and squalid and the staff therein amenable to bribery. Such dramatization makes for a good story but certainly undermines trust in publicly-funded health care and fuels demands for privatization.
25. Section 15 of Québecs Health Insurance Act, R.S.Q. c. A-29;
26. Section 11 of the province's Hospital Insurance Act, R.S.Q. c. A-28.
27. For a discussion see C. Tuohy, C. Flood and M. Stabile, "How Does Private Finance Affect Public Health Care Systems: Marshalling the Evidence from OECD Nations," Journal of Health Politics, Policy and Law 29, no. 3 (2004): 359-396.
28. Ibid.
29. T. Besley, J. Hall and I. Preston, "Demand for Private Health Insurance - Do Waiting Lists Matter?" Journal of Public Economics 72 (1999): 155-181;
30. A. Morga and A. Xavier, "Hospital Specialists' Private Practice and its Impact on the Number of NHS Patients Treated and on the Delay for Elected Surgery," The University of York, Discussion Papers in Economics No.2001/01, (2001), at 〈http://www.york.ac.uk/depts/econ/dp/0101.pdf〉 (last visited September 6, 2005);
31. T. Besley, J. Hall and I. Preston, "Private and Public Health Insurance in the UK," European Economic Review 42 (1998): 491-497.
32. Flood, supra note 9.
33. Cases have included challenges to restrictions on funding for translation services for the deaf; anti-retroviral drugs; funding for in vitro fertilization services; and funding for autistic treatments; etc.
34. D. Greschner, "How Will the Charter of Rights and Freedoms and Evolving Jurisprudence Affect Health Care Costs?" in P. G. Forest, G. P. Marchildon and T. McIntosh, eds., The Governance of Health Care in Canada: The Romanow Papers vol. 3 (Toronto: University of Toronto Press, 2004): 25, at Appendix 2.
35. See Mia v. British Columbia (Medical Services Commission) (1985), 61 B.C.L.R. 273, (1985) B.C.J. No. 2920 (S.C.) (QL);
36. Waldman v. British Columbia (Medical Services Commission) (1999), B.C.L.R. (3d) 21, (2000) B.C.J. No. 334 (C.A.) (QL).
37. Eldridge v. British Columbia (Attorney General) (1997) 3 S.C.R. 624.
38. Supra note 17.
39. Eldridge, supra note 28.
40. Ibid. at para. 5.
41. Ibid. at para. 69. As Justice La Forest stated: "Effective communication is quite obviously an integral part of the provision of medical services. At trial, the appellants presented evidence that miscommunication can lead to misdiagnosis or a failure to follow a recommended treatment. This risk is particularly acute in emergency situations, as illustrated by the appellant Linda Warren's experience during the premature birth of her twin daughters. That adequate communication is essential to proper medical care is surely so incontrovertible that the Court could, if necessary, take judicial notice of it."
42. Indeed see S. Choudhry and C. E. Hunter, "Measuring Judicial Activism on the Supreme Court of Canada: A Comment on Newfoundland (Treasury Board) v. NAPE," McGill Law Journal 48 (2003): 525-562, for empirical work claiming that there is little evidence to support the claim in general that court have become more "activist" in overturning legislation.
43. Brown v. British Columbia (Minister of Health) (1990), 42 B.C.L.R. (2d) 294, (1990) BCJ 151 (S.C) (QL).
44. Cameron v. Nova Scotia (Attorney General) (1999), 177 D.L.R. (4th) 611, 1999 CanLII 7243 (NS C.A.).
45. In addressing the infringement of the claimants' dignity, J. A. Chipman. at para. 183 focused largely on pre-existing disadvantages the infertile experience. He noted infertility has been viewed historically as "an unworthy state, the object of derision, banishment and disgrace." In contrast, J. A. Bateman, ruled that infertility does not constitute a disability under s. 15(1) but, even if it did, the denial of funding for IVF and ICSI would not demean the claimants' dignity. N. Reis has noted "these two opposing views in the Court of Appeal clearly highlight some of the difficulties and ambiguities in determining when a denial of public funding for a health care service constitutes discrimination in the substantive sense contemplated under s. 15(1)."
46. See N. M. Ries, "The Uncertain State of the Law Regarding Health Care and Section 15 of the Charter," Health Law Journal 11 (2003): 217-239, at 230.
47. K. Roach, The Supreme Court on Trial: Judicial Activism or Democratic Dialogue (Toronto: Irwin Law, 2001): at 172.
48. See E. Vayena, P. J. Rowe and P. D. Griffen, eds., Current Practices and Controversies in Assisted Reproduction, Report of a meeting on "Medical, Ethical and Social Aspects of Assisted Reproduction" held at WHO Headquarters in Geneva, Switzerland 17-21, September 2001 (Geneva: WHO, 2001): at 263, available at 〈http://www.who.int/reproductive-health/infertility/ report_content.htm〉 (last visited September 27, 2005).
49. Auton (Guardian ad litem of) v. British Columbia (Attorney General), 2004 SCC 78.
50. D. Grechner classified Auton as a "scope of funding" case, where plaintiffs seek expansion of the medicare umbrella. For an extended critique of the lower court judgments in Auton,
51. see D. Greschner and S. Lewis, "Auton and Evidence-Based Decision-Making: Medicare in the Courts," The Canadian Bar Review 82 (2003): 501-533.
52. (2002), 220 D.L.R. (4th) 411 (B.C.C.A.), aff'g (2000), 78 B.C.L.R. (3d) 55, 2000 BCSC 1142 (CanLII).
53. It is worthwhile to note that the Auton and Chaoulli decisions were heard at the same time although the Auton decision was released much earlier than the Chaoulli decision. It is also interesting, particularly given the importance of the facts to the eventual determination in each of these cases, that in both decisions the Supreme Court overturned the decisions of both the trial and appeal courts.
54. Auton, supra note 39 at para. 37.
55. Ibid. at para. 38.
56. Ibid. at para. 43.
57. See D. Greschner, "Charter Challenges and Evidence-Based Decision-Making in the Health Care System: Toward a Symbiotic Relationship," in C. M. Flood, ed., Frontiers of Fairness (Toronto: University of Toronto Press, expected February 2006).
58. See the working papers at 〈http://www.law.utoronto.ca/health-law/ basket/〉 (last visited September 27, 2005).
59. See C. M. Flood and J. Erdman, "The Boundaries of Medicare: Tensions in the Dual Role of Ontario's Physician Services Review Committee" Health Law Journal 12 (2004): 1-16.
60. T. R. Marmor and D. Boyum, "Medical Care and Public Policy: The Benefits and Burdens of Asking Fundamental Questions," Health Policy 49 (1999): 27-43;
61. J. Oberlander, T. Marmor and L. Jacobs, "Rationing Medical Care: Rhetoric and Reality in the Oregon Health Plan," Canadian Medical Association Journal 164, no. 11 (2001): 1583-87;
62. F. Honigsbaum et al, Priority Setting Processes for Healthcare: in Oregon, USA; New Zealand; the Netherlands; Sweden; and the United Kingdom (Oxford: Radcliffe Medical Press Ltd., 1995); and
63. C. M. Feeks, "Rationing Healthcare in New Zealand: The Use of Clinical Guidelines," Medical Journal of Australia 173 (2000): 423-26.
64. N. Daniels and J. Sabin, "The Ethics of Accountability in Managed Care Reform," Health Affairs 17, no. 4 (1998): 50-57, at 57.
65. Ibid. at 57.
66. K. Syrett, "Impotence or Importance? Judicial Review in an Era of Explicit NHS Rationing" Modern Law Review 67, no. 2 (2004): 289-321.
67. S. Martin, "Balancing Individual Rights to Equality and Social Goals," The Canadian Bar Review 80 (2001): 299-369, at 329.
68. See Singh v. Canada (Minister of Employment and Immigration) (1985)1 S.C.R. 177;
69. Blencoe v. British Columbia (Human Rights Commission, 2000 SCC 44).
70. In New Brunswick (Minister of Health and Community Services) v. G.(J.), (1999) 3 S.C.R. 46, a women was successful in obtaining public funding for legal aid to assist her in challenging a judicial order granting the minister custody of the applicant's three children for an additional six months.
71. See also S. H. Hartt and P. J. Monahan, "The Charter and Health Care: Guaranteeing Timely Access to Health Care for Canadians," C. D. Howe Institute Commentary, No. 164 (May 2002) for an argument that in order to defend a section 7 challenge governments need to put in place wait time guarantees. Available at 〈http://www.charterhealth.ca/ articles/cdhowe_commentary. pdf〉 (last visited September 27, 2005).
72. See Knight v. Indian Head School Division No. 19 (1990) 1 S.C.R. 653.
73. The only successful judicial review claim before the courts with regard to waiting times has been Stein v. Quebec (Regie de l'Assurance-maladie) (1999) QJ No. 2724 (S.C) (QL). In this case Mr. Stein waited months for surgery, even though his doctors warned his life was in danger if he was not operated on within four to eight weeks. He was successful before the Quebec Superior Court in overturning the Quebec health insurance board officials' refusal to pay for his treatment in a New York hospital on the grounds that, given the facts of the case, the decision was patently unreasonable. The court was prepared to be very deferential to the Quebec authorities; however, even allowing for this very high standard of deference the court felt compelled to overturn the Board's decision. Thus the courts will check the rationality of decisions about what is in and out of Medicare, but will generally not hold the government or other institutions to any higher standard.
74. The courts have also on at least one occasion sent a sharp message that constitutional values must be incorporated into decision-making. The Ontario Court of Appeal decision in 2001 of Lalonde v. Commission de Restructuration des Services De Sante (2001, 56 O.R. (3d) 505, involved a challenge to the Health Services Restructuring and Taskforce Commissions decision to close the francophone Montfort Hospital. Both the Ontario Divisional Court and the Ontario Court of Appeal held that whilst s.15 of the Charter would provide no relief, applicants seeking to ensure the continuation of French language medical services to the francophone population in Ottawa-Carlton could succeed by relying on the unwritten constitutional principle of protection of minorities. The Ontario Court of Appeal found that the Commission, in failing to give serious weight and consideration to the importance of Montfort to the survival of the Franco-Ontario minority, had failed to exercise its public interest mandate as required by the fundamental principles of the Constitution. The court said at para. 180 that: "in determining the public interest, the Commission was required to have regard to the fundamental constitutional principle of respect for and protection of minorities....The Commission, however, viewed consideration of Montfort's larger institutional role as beyond its mandate."
75. R.S.O. 1990, c. F.31.
76. Its predecessor was the Federal-Provincial/Territorial Coordinating Committee on Reciprocal Billing.
77. The Director of Access to Information at Health Canada has advised that although there are relevant documents, they will likely not be released to us as they fall within the exemption of information obtained "in confidence" from other governments, the disclosure of which could be "injurious to federal-provincial consultations" (Access to Information Act, R.S.C. 1985, c. A-1, s. 13(1)(c) and s. 14).
78. For an in-depth discussion please see M. Awad, J. Abelson and C. Flood, "The Boundaries of Canadian Medicare: The Role of Medical Directors and Public Participation in Decision Making," CHSRF-OMHLTC Research Project, "Defining the Medicare Basket" (RC2-0861-06), Working Paper No. 4 (April 4, 2004), at 〈http://www.irpp.org/miscpubs/archive/medicare_basket/ wp20 04-05.pdf〉 (last visited September 27, 2005).
79. See for example, R. v. NW Lancashire HA, Ex p. A, D & G (1999) Lloyd's Law Rep. Med. 399, a case which centered on the low priority given to transsexualism in terms of priorities of illnesses.