Health care rights in Canada: The Chaoulli legacy

Medicine and Law

Volumn 27, Issue 3, 2008, Pages 617-644

  Flood, Colleen M ^a,b   Xavier, Sujith ^a  

^a UNIVERSITY OF TORONTO   (Canada)

^b CANADIAN INSTITUTES OF HEALTH RESEARCH   (Canada)

Author keywords

Charter rights; Private health insurance; Waiting time

Indexed keywords

ARTICLE; CANADA; GOVERNMENT REGULATION; HEALTH CARE; HEALTH CARE ACCESS; HEALTH CARE COST; HEALTH CARE DISTRIBUTION; HEALTH CARE FINANCING; HEALTH CARE POLICY; HEALTH CARE SYSTEM; HUMAN RIGHTS; LEGAL ASPECT; PRIVATE HEALTH INSURANCE; PRIVATE PRACTICE; PUBLIC HEALTH SERVICE; REIMBURSEMENT;

EID: 54849405029     PISSN: 07231393     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (69)

1. Chaoulli v. Quebec (Attorney General), [2005] 1 S.C.R. 791, 2005 SCC 35.
2. Colleen M. Flood, Chaoulli's Legacy for the Future of Canadian Health Care Policy, 44 (2) Osgoode Hall Law Journal, 273-310 (2006).
3. Major J. has retired and has been replaced by Mr. Justice Marshall Rothstein; Chaoulli v. Quebec (A.G.), SCC 35, [2005] 1 S.C.R. 791.
4. The analysis of the Chaoulli decision is largely taken from earlier work by one of the authors: see Colleen M. Flood, "Chaoulli's Legacy for the Future of Canadian Health Care Policy" (2006) 44: 2 Osgoode Hall Law Journal, pp. 273-310.
5. See also Colleen M. Flood et al (ed.), Access to Care, Access to Justice: The Legal Debate over Private Health Insurance in Canada (2005).
6. The reader should recall that in Chaoulli, McLachlin C.J. and Major J. (Bastarache J. concurring) concur with Deschamps J. on the Quebec Charter making the Deschamps judgment the majority judgment. However, McLachlin C.J. and Major J. (Bastarache J. concurring) also find for the appellants with respect to the Canadian Charter claims.
7. Chaoulli, [2005] 1 S.C.R. 791 at 66.
8. Id at 66, [2005] 1 S.C.R. 791.
9. Organization for Economic Cooperation and Development (OECD), Health Data 2005 (Paris: OECD, 2005). Figures show that in both Canada and France private health insurance accounts for 12.7% of total health spending. Health care financed by private insurance is highest in the United States, at 36.7%, which reflects the fact that private insurance is the dominant form of coverage in this country. The Netherlands, where private insurance is the primary payer for more than 30% of the population, reports the second highest level of financing at 17.2%. According to OECD statistics for 2003, private insurance accounts for less than 10% of total health expenditure in all remaining OECD countries supplying such information.
10. The comparison seems to originate from the following opinion piece: David Gratzer, Wanted: Credible Health Care Analysis (1998) 7(2) Fraser Institute Canadian Student Review, http://oldfraser.lexi.net/ publications/csr/1998/september/health_care analysis.html.
11. Colleen Flood & Tom Archibald, The Illegality of Private Health Care in Canada, 164:6 Can Med Assoc Jnl 825 (2001).
12. Chief Justice McLachlin and Justice Major further discount governmental arguments (and the evidence of expert witnesses) about the detrimental effect of a private tier on a public system and seem to accept that there is no downside to allowing a private tier.
13. Chaoulli, [2005] 1 S.C.R. 791 at 78.
14. For example, a recentprimafacie poor ranking for Canada by the World Health Organization has been roundly criticized and can be largely explained because a discount was factored in for educational attainment; in other words, because Canadians are more highly educated than for example the citizens of France our otherwise excellent performance on health care outcomes like infant mortality and life expectancy was severely discounted - see Raisa Deber, Why Did the World Health Organization Rate Canada's Health System as 30th? Some Thoughts on League Tables, 2:1 Longwoods Review 2 (2003).
15. Organization for Economic Cooperation and Development (OECD), Health Data (2005); In 2003, Canada tied Greece for 7th place in the OECD in terms of total health care spending measured as a percentage of GDP.
16. See Alan Maynard, "How to Defend a Public Health Care System: Lessons From Abroad" in Colleen M. Flood et al (ed.), Access to Care, supra.
17. Francesca Colombo & Nicole Tapay, Private Health Insurance in OECD Countries: The Benefits and Costs for Individuals and Health Systems, (2004) 15 OECD Health Working Papers, para. 20, http://www.oecd.org/ dataoecd/34/56/33698043.pdf.
18. Canadian Institute for Health Information, Research Reports, Exploring the 70/30 Split: How Canada's Health Care System is Financed (2005).
19. Chaoulli, [2005] 1 S.C.R. 791.
20. Ministère de la Santé et des Services Sociaux (Quebec), Guaranteeing Access: Meeting the Challenges of Equity, Efficiency and Quality (Quebec City: Government of Quebec), http://publications.msss.gouv.qc.ca/acrobat/f/documentation/2005/ 05-721-01A.pdf.
21. An Act to amend the Act respecting health services and social services and other legislative provisions, R.S.Q., ch.43 (2006).
22. Hospital Insurance Act, R.S.Q. c. A-28, Health Insurance Act, R.S.Q. c. A-29, Medical Act, R.S.Q. c. M-9 and Health services and social services, An Act respecting, R.S.Q. c. S-4.2.
23. Library of Parliament, Parliament Information and Research Services, Economics Division, Duplicate Private Health Care Insurance: Potential Implications for Quebec and Canada (2006), http://www.parl.gc.ca/information/library/PRBpubs/ prb0571-e.htm#quebec.
24. An Act to amend the Act respecting health services § 7 & 8.
25. Marie-Claude Premont, Wait Time Guarantee for Health Services: An Analysis of Quebec's Approach (Translation by Bob Chodos and Susan Joanis) Vol. 47 (3) Les Cahiers de Droit, 539 (2006) [on file with the authors].
26. An Act to amend the Act respecting health services § 17 (1).
27. An Act to amend the Act respecting health services § 7 & 8.
28. Monique Giguere, Mercer Human Resource Consulting "Communiqué: Québec Improves Specialized Access and Provides Limited Private Health Insurance Access, (2007), http://www.mercerhr.com/summary.ihtml/dynamic/idContent/1257390.
29. For a full discussion see Marie-Claude Premont, supra.
30. Monique Giguere, Mercer Human Resource Consulting "Communiqué: Québec Improves Specialized Access and Provides Limited Private Health Insurance Access, (2007), http.//www.mercerhr.com/summary.ihtml/dynamic/idContent/1257390.
31. See, for example, Marie-Claude Prémont, Crunch Time for Public Health Care in Quebec, The Toronto Star, Friday, November 17, 2007, at A21.
32. The official results from the Quebec provincial election are as follows: Québec: Liberal Party: 48 seats, Action démocratique du Québec: 41 seats and Parti québécois: 36 seats; Members, National Assembly of Quebec, http://www.assnat.qc.ca/eng/ Membres/index.html.
33. Action démocratique du Québec, Au Québec on passe a l'action (Party Platform, 2007), http://www.ada.gc.ca/ accueil.
34. Organization for Economic Cooperation and Development (OECD), Health Data, (2005).
35. Action démocratique du Québec, Au Québec on passe a l'action (Party Platform, 2007), http://www.adq.qc.ca/ accueil.
36. Chantal Hébert, Quebec set to pry lid off medicare, The Toronto Star, June 04, 2007, available at http://www.thestar.com/ printArticle/221191.
37. For example, s. 5, 6 and 13 of the Act Respecting Health Services & Social Services in Quebec clearly states that everyone has the right to medically necessary insured services - but all turns onthe definitionof "medically necessary" and the process by which services are deemed to be publicly insured. See generally Colleen A Flood (ed.), Just Medicare: What's In, What's Out, How We Decide (2006)
38. Martha Jackman, The Implications of Section 7 of the Charter for Health Care Spending in Canada, Commission on the Future of Health Care in Canada, Discussion paper 31 (2002).
39. Brown v. British Columbia (Minister of Health), (1990) 42 B.C.L.R. (2d) 294.
40. Section 15: (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. (2) (2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability; Part 1 of the Constitution Act, 1982, Schedule B to the Canada Act 1982, c. 11 (U.K.).
41. Eldridge v. British Columbia (Attorney General), [1997]3 S.C.R. 624.
42. Cameron v. Nova Scotia (Attorney General), (1999) D.L.R. (4th) 6 (C.A.);
43. Brown v. British Columbia (Minister of Health), (1990) 42 B.C.L.R. (2d) 294;
44. Auton (Guardian ad litem of) v. British Columbia (Attorney General), (2004) SCC 8.
45. Auton, (2004) SCC 8.
46. Cameron, (1999) D.L.R. (4th) 6 (C.A.);
47. Brown, (1990)42 B.C.L.R. (2d) 294.
48. Flora v. Ontario Health Insurance Plan, (2007) CanLII 339 (ON S.C.D.C.).
49. Health Insurance Act, R.S.O., c. H.6 (1990) ("HIA").
50. Mr Flora was found to satisfy the Milan Criteria. The Milan Criteria are used to determine the eligibility for cadaveric liver transplant and are also used by Ontario physicians for a Living-Related Liver Transplant. The criteria are as follows: 1. A solitary tumour less than 5 cm in diameter, or 2. Multiple tumours, three or fewer in number, with a maximum diameter of 3 cm; and 3. No evidence of vascular invasion or evidence of spread outside the liver.
51. Flora, 22 CanLII 339, (ON S.C.D.C.) (2007).
52. Gosselin v. Quebec (Attorney General), (2002) 4 S.C.R. 429.
53. Flora, 174 (2007) CanLII 339, (ON S.C.D.C.).
54. Colleen M. Flood et al, Access to Care, supra.
55. Alberta Health Care Insurance Act, R.S.A. 2000 c. A-20
56. McCreith has filed an Intention to File with the Ontario Divisional Court and the Statement of Claims is to be deposited with the Court in September 5 2007.
57. Health Insurance Act, R.S.O. 1990, c. H.6.
58. Commitment to the Future of Medicare Act, S.O 2004, c. 5.
59. Health Insurance Act, R.S.O. 1990, c. H.6.
60. Commitment to the Future of Medicare Act, S.O 2004, c. 5.
61. See Colleen M. Flood, Just Medicare: The Role of Canadian Courts in Determining Health Care Rights and Access. 33 (4) J. of Law, Medicine & Ethics, 669-680 (2005)
62. Stein v. Quebec (Regie de l'Assurance-maladie), (1999) R.J.Q. 2416 (Sup. Ct.).
63. Cilinger v. Centre hospitalier de Chicoutimi, (2004) R.J.Q. 3083.
64. Mike King & Allison Hanes, Quebec breast cancer patients suing hospitals: Class-action lawsuit takes aim at delays in radiation treatments, National Post, 11 March 2004, available at http://www.charterhealth.ca/news/2004mar11.html.
65. Lorian Hardcastle, Case Comment: Cilinger c Centre Hospitalier de Chicoutimi, 14 (3) Health Law Review 44 (2006).
66. Id.
67. Civil Code of Québec, R.S.Q., chapter C-1994.
68. Stein v. Quebec (Regie de l'Assurance-maladie), (1999) R.J.Q. 2416 (Sup. Ct.).
69. Canadian Medical Association, Medicare Plus, (2007).