Blurring of the public/private divide: The Canadian chapter

European Journal of Health Law

Volumn 17, Issue 3, 2010, Pages 257-278

  Flood, Colleen M ^a   Thomas, Bryan ^a  

^a UNIVERSITY OF TORONTO   (Canada)

Author keywords

Canada; Canadian Charter of Rights and Freedoms; for profit clinics; health systems finance; public private

Indexed keywords

ARTICLE; CANADA; HEALTH INSURANCE; HUMAN; INSURANCE; LEGAL ASPECT; ORGANIZATION AND MANAGEMENT;

CANADA; HUMANS; INSURANCE, HEALTH; PRIVATE SECTOR; UNIVERSAL COVERAGE;

EID: 77955911194     PISSN: 09290273     EISSN: 15718093     Source Type: Journal    
DOI: 10.1163/157180910X504081     Document Type: Article

References (102)

1. For a discussion of the evidence regarding the costs and benefits of independent treatment centres see C. Naylor, Sarah Gregory, "Independent sector treatment centres", King's Fund Briefing (London: King's Fund, 2009). Retrieved March 10, 2010 www.kingsfund.org.uk/publications/briefings/ independent-sector.html
2. White House. 2010. "The President's Proposal." White House. February 22. Retrieved March 10 at http://www.whitehouse.gov/health-care- meeting/proposal;
3. Obama for America. 2008. "Barack Obama and Joe Biden's Plan to Lower Health Care Costs and Ensure Affordable, Accessible Health Coverage for All." Obama for America, October 3. Retrieved March 10, 2010 www.barackobama.com/pdf/issues/HealthCareFullPlan.pdf;
4. Timothy Jost. "The President's Health Reform Proposal: Insurance and Revenue Provisions." 2010. Health Affairs Blog, February 22. Retrieved March 10, 2010 healthaffairs.org/blog/2010/02/22/the-presidents-health-reform- proposal-insurance-and-revenue-provisions/;
5. Timothy Jost. "The President's Health Reform Proposal: Other Provisions" 2010. Health Affairs Blog, February 22. Retrieved March 10, 2010 healthaffairs.org/blog/2010/02/22/the-presidents-health-reform-proposal- other-provisions;
6. T. Marmor, J. Oberlander, J. White, "The Obama Administration's Options for Health Care Cost Control: Hope Versus Reality", Annals of Internal Medicine 150(7) (2009) 485-489.
7. Marie-Pascale Pomey et al., "Public Private Partnerships for Prescription Drug Coverage: Policy Formulation and Outcomes in Quebec's Universal Drug Insurance Program, with Comparisons to the Medicare Prescription Drug Program in the United States", Milbank Quarterly 85(3) (2007), 469-498 at 477;
8. R. Tamblyn et al., "Adverse Events Associated with Prescription Drug Cost-Sharing among Poor and Elderly Persons", Journal of the American Medical Association 285(4) (2001) 421-429;
9. Steve Morgan "Quebec's drug insurance plan: a prescription for Canada?" Discussion Paper HPRU 98:2d, (Vancouver, BC: University of British Columbia Centre for Health Services and Policy Research, Health Policy Research Unit). February 1998.
10. F. Colombo, N. Tapay. 2004. "Private Health Insurance in Australia: A Case Study." OECD Health Working Papers no. 8. Retrieved www.oecd.org/dataoecd/5/54/22364106.pdf.
11. On the regressive impact of Australia's tax subsidies for private insurance, see: S.J. Duckett, "Private care and public waiting. 29(1) Australian Health Review, (2005) 87-93;
12. S. Willcox, "Promoting Private Health Insurance in Australia: Do Australia's latest health insurance reforms represent a policy in search of evidence?" 20(3) Health Affairs (2001) 152-161.
13. Chaoulli v. Quebec [2005] 1 S.C.R. 791.
14. See C.M. Flood, A. Haugen. "Is Canada Odd? A Comparison of European and Canadian Approaches to Choice and Regulation of the Public/Private Divide in Health Care", Journal of Health Economics, Policy and Law [forthcoming] (2010).
15. Canadian Institute for Health Information. 2009. National Health Expenditure Trends, 1975-2009. (Ottawa: CIHR 2009) at 63.
16. Ibid., at 9.
17. Ibid., at 19.
18. F. Colombo, N. Tapay. 2004. "Private Health Insurance in OECD Countries: The Benefits and Costs for Individuals and Health Systems." OECD Health Working Papers no. 15, p. 11. Retrieved www.oecd.org/dataoecd/34/56/ 33698043.pdf.
19. See generally R.B. Deber, "Delivering Health Care: Public, Not-for-Profit, or Private?" in: G.P. Marchildon, T. McIntosh and P.G. Forest (eds), The Fiscal Sustainability of Health Care in Canada (Toronto, University of Toronto Press, 2004).
20. Provincial medical associations are generally charged with representing physicians and promoting their professional interest. A separate body in each province, the College of Physicians and Surgeons, is charged with regulating the profession in order to protect and serve the public interest, and has powers to discipline individuals who fall short of professional standards.
21. C. Tuohy, Accidental Logics: The Dynamics of Change in the Health Care Arena in the United States, Britain, and Canada (New York: Oxford University Press, 1999) at 244 writes that: it is important to note than in almost all provinces (the notable exception being Quebec...) what was negotiated was the overall rate of increase to the schedule: the determination of the relative value of particular services was accomplished entirely through the committee structures of the provincial medical associations.
22. Canada Health Act (R.S., 1985, c. C-6).
23. Virginie Demers et al., "Comparison of provincial prescription drug plans and the impact on patients' annual drug expenditures", 178(4) Canadian Medical Association Journal (2008) 405-409;
24. V. Kapur, K. Basu, "Drug coverage in Canada: who is at risk", 71(2) Health Policy (2005) 181-193.
25. F. Colombo, N. Tapay. 2004. "Private Health Insurance in OECD Countries: The Benefits and Costs for Individuals and Health Systems." OECD Health Working Papers no. 15, p. 11. Retrieved www.oecd.org/dataoecd/34/56/ 33698043.pdf.
26. For deductions by employers, see Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.), s. 18(1)(a). For deductions by individuals for medical expenses, see Income Tax Act, s. 118.2, as am.
27. See Applied Management. 2000. "Canadians' Access to Insurance for Prescription Medicines: Executive Summary", A Report Submitted to Health Canada, March 2000 at 6. Retrieved March 10, 2010 www.frasergroup.com/downloads/ execsum-eng.pdf. This is a measure of a "first dollar index" being defined as the proportion of the first $1,000 of annual drug expenses covered by the plan. Full coverage is defined as 100 per cent; underinsured is where 64 per cent or less is covered; and uninsured is zero coverage.
28. "Health debate shifting to public vs. private", Boston Globe (June 21, 2009) p. A11.
29. Marie-Pascale Pomey et al., "Public Private Partnerships for Prescription Drug Coverage: Policy Formulation and Outcomes in Quebec's Universal Drug Insurance Program, with Comparisons to the Medicare Prescription Drug Program in the United States", 85(3) Milbank Quarterly (2007) 469-498 at 477.
30. R. Tamblyn et al., "Adverse Events Associated with Prescription Drug Cost-Sharing among Poor and Elderly Persons", 285(4) Journal of the American Medical Association (2001) 421-429.
31. Marie-Pascale Pomey et al., "Public Private Partnerships for Prescription Drug Coverage: Policy Formulation and Outcomes in Quebec's Universal Drug Insurance Program, with Comparisons to the Medicare Prescription Drug Program in the United States", 85(3) Milbank Quarterly (2007) 469-498 at 489.
32. Ann Silversides, "Public-Private Partnerships, Part 1: the next hospital wave", Canadian Medical Association Journal 179(9) (2008), 883;
33. Ann Silversides, "Public-Private Partnerships, Part 2: calculations of risk", 179(9) Canadian Medical Association Journal (2008) 991;
34. Erika Gilbert, "Failing Grade for Public-Private Partnership Hospitals", 180(4) Canadian Medical Association Journal (2009) 380;
35. Auditor General of Ontario, 2008 Annual Report of the Office of the Auditor General of Ontario (Toronto: Queen's Printer for Ontario, 2008) at 104. Retrieved March 11, 2010 www.auditor.on.ca/en/reports-en/en08/ar-en08.pdf.
36. Silversides, "Public-Private Partnerships, Part 1", 2008 Annual Report of the Office of the Auditor General of Ontario, ibid. at 884.
37. Silversides, "Public-Private Partnerships, Part 1", 2008 Annual Report of the Office of the Auditor General of Ontario, ibid. at 884
38. Silversides, "Public-Private Partnerships, Part 2" at 992.
39. Martin McKee, Nigel Edwards & Rifat Atun, "Public-private partnerships for hospitals", 84(11) Bulletin of the World Health Organization (2006), 890 at 892.
40. Martin McKee, Nigel Edwards & Rifat Atun, "Public-private partnerships for hospitals", 84(11) Bulletin of the World Health Organization (2006), 890 Ibid.
41. Martin McKee, Nigel Edwards & Rifat Atun, "Public-private partnerships for hospitals", 84(11) Bulletin of the World Health Organization (2006), Ibid. at 893.
42. Martin McKee, Nigel Edwards & Rifat Atun, "Public-private partnerships for hospitals", 84(11) Bulletin of the World Health Organization (2006), at 893 Ibid.;
43. Silversides, "Public-Private Partnerships, Part 2" at 993.
44. Silversides, "Public-Private Partnerships, Part 2" at 992;
45. Martin McKee, Nigel Edwards & Rifat Atun, "Public-private partnerships for hospitals" at 891.
46. Silversides, "Public-Private Partnerships, Part 1: The Next Hospital Wave" at 884.
47. Auditor General of Ontario, 2008 Annual Report of the Office of the Auditor General of Ontario (Toronto: Queen's Printer for Ontario, 2008) at 105. The complete report is available online at http://www.auditor.on.ca/en/reports- en/en08/ar-en08.pdf.
48. Silversides, "Public-Private Partnerships, Part 2" at 992.
49. Ibid., at 993.
50. Erika Gilbert, "Failing Grade for Public-Private Partnership Hospitals", 180(4) Canadian Medical Association Journal (2009) 380;
51. Martin McKee, Nigel Edwards & Rifat Atun, "Public-private partnerships for hospitals" at 892.
52. See for example N. Esmail, M. Hazel, Waiting Your Turn: Hospital Waiting Lists in Canada, 2008 Report (18th Edition) (Vancouver, B.C.: Fraser Institute) pp. 13-16 (arguing that 'non-price rationing' is inefficient). In U.S. debates, proponents of free market solutions have pointed to Canadian wait times as evidence of the perils of 'socialized' health care.
53. See for example, D. Gratzer, The Cure: How Capitalism Can Save American Health Care (New York: Encounter Books, 2006).
54. For a discussion, see C.M. Flood, T. Archibald, "The Illegality of Private Health Care in Canada", 164(6) Canadian Medical Association Journal (2001) 825-830.
55. R. Deber, "Thinking Before Rethinking: Some Thoughts about Babies and Bathwater", 1(3) Health-carePapers, (2000) 25-31.
56. Chaoulli v. Quebec [2005] 1 S.C.R. 791.
57. J. King, "Constitutional Rights and Social Welfare: A Comment on the Canadian Chaoulli Health Care Decision", 69(4) Modern Law Review (2006) 631-643.
58. Chaoulli v. Quebec [2005] 1 S.C.R. 791 at para. 49.
59. Charter of Human Rights and Freedoms, R.S.Q. c. C-12.
60. See Auton (Guardian ad litem of) v. British Columbia (Attorney General), [2004] 3 S.C.R. 657, 2005 SCC 78, [Auton]. An unsuccessful Charter challenge to the B.C. government's decision to deny public funding for Lovaas-type Intensive Behavioral Autism Treatment for children. Cameron v. Nova Scotia (Attorney General) (1999), 172 N.S.R. (2d) 227. (N.S. C.A. Sep 14, 1999) Leave to appeal refused by: Cameron v Nova Scotia (Attorney General), [2000] 1 S.C.R. viii, 190 N.S.R. (2d) 198 (note), [Cameron]. A Charter claim brought by an infertile couple seeking reimbursement for having to pay out of pocket for a specialized in vitro treatment.
61. C.M. Flood, Kent Roach and Lorne Sossin (eds.), Access to Care, Access to Justice, (Toronto: University of Toronto Press, 2005).
62. Chaoulli at para. 30. (per Deschamps)
63. It bears noting though that three members of the court, in their decision concurring with the majority, did indeed find the ban on private insurance to be arbitrary. See Chaoulli at paras. 134-143. For a critique of this finding, see C.M. Flood, "Chaoulli's Legacy for the Future of Canadian Health Care Policy", 44(22) Osgoode Hall Law Journal (2006), 273-310 at 279-293.
64. Lochner v. New York 198 U.S. 45 (1905). But cf. Sujit Choudhry, "Worse than Lochner?" in C.M. Flood, Kent Roach, Lorne Sossin (eds.), Access to Care, Access to Justice (Toronto: University of Toronto Press, 2005) at 75.
65. Chaoulli at paras. 14 and 34 (per Deschamps J.).
66. Chaoulli at para. 163 (per Binnie and Lebel J.J.).
67. An Act to Amend the Act respecting health services and social services and other legislative provisions, R.S.Q., ch.43 (2006).
68. Québec, Ministère de la Santé et des Services sociaux, Guaranteeing access: meeting the challenges of equity, efficiency and quality (consultation document) (Québec: Direction des communications du ministère de la Santé et des Services Sociaux, 2006). Retrieved March 10, 2010 publications.msss.gouv. qc.ca/acrobat/f/documentation/2005/05- 721-01A.pdf. The proposals set out in this consultation document were largely carried into law. See An Act to Amend the Act respecting health services and social services and other legislative provisions, R.S.Q., ch. 43 (2006).
69. Phillipe Couillard, "The Chaoulli Ruling and the Government Response: 4 Years Later", (Paper presented to the CIHR Health Law, Ethics and Policy Seminar Series, Faculty of Law, University of Toronto, January 14, 2010) [unpublished].
70. C.f. Marie-Claude Prémont who argues that it is conceivable, however, that some Quebeckers may wish to purchase insurance in order to avoid the 6-9 month waiting periods permitted under the guarantee. Marie-Claude Prémont, "Wait-time Guarantees for Health Services: An Analysis of Quebec's Reaction to the Chaoulli Supreme Court Decision", 15 Health Law Journal (2007) p. 43 at 56.
71. See http://ww.acurehealth.com/.
72. See http://www.cheaplifeinsurnace.ca/Critical-Illness-Insurance.htm.
73. C.M. Flood, "Chaoulli's Legacy for the Future of Canadian Health Care Policy", 44(22) Osgoode Hall Law Journal (2006), 273-310.
74. Even the CBC played a documentary called "Medicare; Schmedicare" on Thursday, 8 December 2005. It is reported to have been filmed in private clinics in Montreal, Toronto and Vancouver and compares the waiting times for those who use the private services to those who use the public system; online: CBC News - The Passionate Eye .
75. Proponents of two-tier health care will spin a golden story that it is win-win and that the wealthy will no longer be a drain on public resources; conveniently overlooking the fact that public resources (manpower) will be diverted from attending to the needs of those in the public health care system to those who are able to pay.
76. Marie-Claude Prémont, "Wait-time Guarantees for Health Services: An Analysis of Quebec's Reaction to the Chaoulli Supremec Court Decision", 15 Health Law Journal (2007) 43 at 56.
77. André Picard, 2009. "Private health care slips under the radar" The Globe and Mail, July 16, p. A12;
78. N. Mehra. 2008. "Eroding Public Medicare: Lessons and Consequences of For-Profit Health Care Across Canada." Ontario Health Coalition. October 6, 2008. Retrieved March 10, 2010 www.web.net/ohc/Eroding%20Public%20Medicare. pdf.
79. "Health coalition slams Murphy for private delivery musings in N.B." CBC News Online, April 16, 2009. Retrieved March 10, 2010 www.cbc.ca/canada/new-brunswick/story/2009/04/16/nb-health-private-905.html
80. "Province puts brakes on public-private partnerships to deal with struggling economy" Telegraph-Journal, July 21, 2009, p. A1.
81. "Saskatchewan government looks to private clinics to help reduce surgical wait times" Leader-Post, March 29, 2010.
82. Murray et al., v. Her Majesty the Queen et al. Statement of claim filed September 6, 2006 [on file with author] at para. 12.
83. "MDs Going Private at a Faster Rate", Montreal Gazette, February 14, 2008, p. A1.
84. For a more detailed discussion, see Marie-Claude Prémont, "Wait-time Guarantees for Health Services: An Analysis of Quebec's Reaction to the Chaoulli Supreme Court Decision", 15 Health Law Journal (2007) p. 43 at 53-56.
85. Ibid., at 56.
86. P.J. Devereaux et al., "A systematic review and meta-analysis of studies comparing mortality rates of private for-profit and private not-for-profit hospitals", 16(11) Canadian Medical Association Journal (2002), 1399-1406.
87. P.J. Devereaux et al., "Comparison of Mortality Between Private For-Profit and Private Not-For-Profit Hemodialysis Centers", 288(19) Journal of the American Medical Association (2001), 2449-2457.
88. "From Beatles and Castro to the CMA: Dr. Brian Day: Likely new head of physicians' group has colourful past" National Post, February 18, 2006, p. A4.
89. "CMA chief defends letting patients jump queue" The Globe and Mail, August 14, 2007, p. A6.
90. Brian Day. 2008. "Canada could learn from Britain on Medicare: The British have introduced reforms to cut waiting times drastically" Montreal Gazette, June 5, p. A17.
91. "Ruling allows private clinics: MD says: Private-surgery operator says he's willing to be a test case in B.C." Vancouver Sun, June 10, 2005, p. A1.
92. Canadian Independent Medical Clinics Association et al. v. Medical Services Commission of British Columbia et al. Statement of Claim filed with the Supreme Court of British Columbia, January 28, 2009 at para. 28.
93. Ibid., at para. 36.
94. Ibid., at para. 15.
95. Ibid., at para. 14.
96. Ibid., at para. 16
97. Canadian Independent Medical Clinics Association et al. v. Medical Services Commission of British Columbia et al. Statement of Defence filed with the Supreme Court of British Columbia, February 20, 2009 at para. 68.
98. As penalty for extra-billing, British Columbia's health transfer from the federal government was reduced by $126,775 for the fiscal year 2001-2002, and by $29,019 in 2003-2004. Health Canada, Federal Transfers and Deductions. Retrieved March 10, 2010 www.hc-sc.gc.ca/hcs-sss/medi-assur/cha- lcs/transfer-eng.php.
99. C.M. Flood, A. Haugen. "Is Canada Odd? A Comparison of European and Canadian Approaches to Choice and Regulation of the Public/Private Divide in Health Care", Journal of Health Economics, Policy and Law [forthcoming] (2010).
100. Canadian Independent Medical Clinics Association et al. v. Medical Services Commission of British Columbia et al. Statement of Defence filed with the Supreme Court of British Columbia February 20, 2009 at paras. 49-53.
101. Thomas Walkon, 2009. "Is now the time to debate medicare?", Toronto Star, March 14 at IN01.
102. Steve Morgan "Quebec's drug insurance plan: a prescription for Canada?" Discussion Paper HPRU 98:2d, (Vancouver, BC: University of British Columbia Centre for Health Services and Policy Research, Health Policy Research Unit). February 1998.