This article was originally published in Maclean's Magazine on June 20, 2005
Supreme Court Challenges Canada's Health-Care Assumptions
THE SUPREME COURT of Canada just wasn't buying the familiar old case in favour of a PUBLIC HEALTH care monopoly. In rulings that stunned Canadian politicians last week, judges on the top court looked hard at some well-worn arguments against allowing private care - and tore that threadbare thinking apart. In key passages, the outrage of some judges seemed to be showing through their cool, deliberate prose, as they described how intolerably long waiting times for public treatment put individual Canadians through pain and psychological torment, or even allowed them to die because their names fell too far down some specialist's list. "Delays in the public system are widespread and have serious, sometimes grave, consequences," wrote Chief Justice Beverley McLachlin and Justice John Major. "Inevitably where patients have life-threatening conditions, some will die because of undue delay in awaiting surgery."
Despite such powerful observations, the judges, like the country, remained split. There is no simple way to sum up the complex set of opinions they delivered. The case they were ruling on was launched by George Zeliotis, a Quebec man who waited nearly a year for a hip replacement in 1997, and his doctor, Jacques Chaoulli. Zeliotis and Chaoulli argued that patients stuck on waiting lists should have the right to private health insurance, since the public system doesn't offer anything approaching a guarantee of timely treatment. Four of the seven justices who heard the case ruled in their favour, striking down Quebec's ban on private insurance for health services that are covered by the provincial plan.
Beyond Quebec's law taking a direct hit, though, sorting out exactly what the rulings mean for the rest of Canada will take time. The majority decision was based on the court's interpretation of Quebec's provincial charter of rights. But on the broader question of whether the CANADIAN CHARTER OF RIGHTS AND FREEDOMS is violated by laws that restrict private health insurance, the judges were deadlocked. Behind closed doors, they fought to a draw, even after taking an unusually long year and a day to issue their decisions after hearing the case last June. Three of the judges, including McLachlin, found that the Charter's protection of life and personal security are violated by Quebec's prohibition of private insurance. But three others disagreed, defending the right of elected politicians to decide on the details of HEALTH POLICY without the courts interfering. The seventh judge, Justice Marie Deschamps, who could have broken the tie, declined to wade in on the Charter issue. She wrote the majority reasons on the narrower Quebec-only issue.
Still, the split on the court doesn't mean what the justices wrote won't change Canadian health care. "The language and terms obviously have ripple effects for the entire country," said University of Toronto law professor Lorne Sossin. "This will unleash a number of other suits, spawning litigation from patients, physicians and insurers in other provinces." All that will take time, of course. But the immediate impact of what the judges found, and how they conveyed their findings, should extend far beyond striking down Quebec's law. Any politician reading their findings should be shamed into bringing a new clarity to the public debate over health care. What won't fly anymore, or shouldn't, are the simplistic denials some politicians instinctively resorted to in response to the court's potent arguments. The best Prime Minister Paul MARTIN could come up with was, "We're not going to have a two-tier health system in this country. Nobody wants that."
That cry of denial rang especially hollow on the day the court delivered its much more rigorous reasoning. Justice Deschamps left little doubt Martin's claim that Canada will not have a two-tier system is nonsense - if only because multiple tiers already exist. Most provinces, she said, allow their citizens some access to private care, with important conditions. Quebec, Alberta, British Columbia and Prince Edward Island all allow doctors to set their fees and function outside medicare, but don't permit private insurance to cover any services offered under the public plan. Ontario and Manitoba also outlaw private insurance, but will refund amounts paid by patients to doctors who opt out of the public plan. Nova Scotia allows private insurance for private services.
Saskatchewan, Newfoundland and Labrador, and New Brunswick are the provinces most open to the private sector. New Brunswick doctors can set their own fees. Saskatchewan doctors can as long as they don't participate in the public plan. Newfoundland reimburses patients who go to doctors working outside medicare for the amount covered by the plan, and even allows patients to buy private insurance to make up the difference. "The regimes of the provinces where a private system is authorized demonstrate that public health services are not threatened by private insurance," Deschamps wrote.
The reality is that private care, except in areas such as dentistry that aren't covered by public plans, functions on the fringes of Canadian medicine. The laws in the biggest provinces banning most private insurance are a major barrier to large-scale private care competing with public care. And advocates of pure public care have long argued that allowing more privately insured services would put Canada on a slippery slope to a U.S.-style system dominated by private care. But the judges reached quite a different conclusion, by turning instead to Europe. "The evidence on the experience of other Western democracies," McLachlin and Major wrote, "refutes the government's theoretical contention that a prohibition on private insurance is linked to maintaining quality public health care."
They pointed to that perennial favourite of social democrats in Canada and just about everywhere: the Swedish model. "Unlike Canada, private health insurance that covers the same benefits as public insurance is 'legal' in Sweden," McLachlin and Major said. "However, only a small minority of the population purchase private insurance." Similarly, Deschamps surveyed the experiences of such countries as Germany, Britain and the Netherlands and found no evidence that private care threatens public systems. Offered a choice, she observed, only nine per cent of Germans opt for private insurance. While the market share grabbed by private care varies across Europe, it never rises to the level of a serious rival to public health. And no wonder: public insurance is much cheaper. "The evidence that the existence of a [public] health care system would be jeopardized by human reactions to the emergence of a private system carries little weight," she concluded.
By refusing to view the issue the way it is so often cast - as a stark choice between Canada's public, love-thy-neighbour philosophy and the U.S.'s private, dog-eat-dog alternative - the judges made a bid to fundamentally alter the terms of the debate. But even more potentially revolutionary is their denial that pure public care is by definition the best thing for the average patient. For the most part, Canadians have accepted the view that while letting in more private care might be a boon to the rich, shielding the public system from competition is better for the rest. Not so, wrote McLachlin and Major. They said outlawing private insurance makes private care the sole privilege of those who can pay cash. "The state has effectively limited access to private health care except for the very rich, who can afford private care without need of insurance," they found. And, they added, "Given the ban on insurance, most Quebecers have no choice but to accept delays in the medical system and their adverse physical and psychological consequences."
Overall, the rulings can be tough reading for a true believer in Canadian medicare. The judicial assault on public-only care finds the system slow enough to let patients languish until they die. The justices replace the old keep-out-U.S-style-medicine refrain with a new bring-on-Euro-style-choice message. And, contrary to every Canadian myth, the system as it stands is portrayed as unfairly advantageous to the rich. But before anyone starts rethinking the choice of Tommy Douglas as Greatest Canadian, it must be said that the outcome is not quite that one-sided. One key point: the entire case for allowing private care is premised on the finding that waiting lists in the public system have grown far too long. If the system were made faster, presumably the reasons for demanding that it be opened up to competition would evaporate.
And then there was the largely overlooked minority view on the court. Justice Ian Binnie and Justice Louis LeBel delivered their own substantial dissent, arguing against imposing privately insured care from the bench. They said Zeliotis and Chaoulli brought what amounts to a complaint with the way the Quebec government runs health care, not a case based on constitutional law. "We can all support the vague objective of 'public health care of a reasonable standard within a reasonable time,' " Binnie and LeBel wrote. "Most people have opinions, many of them conflicting, about how to achieve it. A legislative policy is not 'arbitrary' just because we may disagree with it."
In other words, the dissenters see this as a clash over policy set by politicians and data collected by social scientists - not a question of fundamental law. "It's a strong point for the dissent," says the University of Toronto's Sossin. Could their plea for judicial restraint carry the day when similar litigation from other provinces reaches the court? That remains an open question, especially because two judges, Rosalie Abella and Louise Charron, weren't appointed to the Supreme Court in time to hear the Chaoulli and Zeliotis case, but would sit on any future cases - and might swing the bench.
Meanwhile, Canadians are as split as their top judges. Dr. Cathryn Kuzyk, a family practice physician in Calgary, is fed up with having to tell her patients they must wait many months for an appointment with, say, an orthopaedic surgeon or a psychiatrist. She wishes there were more options and welcomed the court's shift in that direction. "I think people should have access to private medical care across Canada," she says, while stressing that she still believes strongly in the public system. Yet, perhaps surprisingly, Grant Schultz, a patient of Kuzyk's who waited 2 ½ painful years before finally getting day surgery last month on an ankle he injured playing with his kids, isn't completely sold. Schultz, 39, a network engineering technologist from nearby Airdrie, worries too many specialists would flee to lucrative private clinics if they had the chance. "Unless there's a way to enslave them to the public system," he says, "they'll go private."
That's just one frustrated doctor's opinion, and one anxious patient's instinct. Neither is driven by ideology. Both came to their points of view out of their experiences with a flawed system. They deserve a more open debate on how to fix it. If the long-term impact of the court's rulings last week remains unclear, the effect on the quality of the public discourse should be instantaneous. The judges took hold of a debate that has been mired in stale sloganeering and yanked it into the real world. Canadians may prize their health system above just about any other shared accomplishment, but right now they might well reserve a little of that pride for their independent judiciary.
Excerpts from the Ruling
'Waiting for care may have adverse psychological effects'
While many of the arguments behind the Supreme Court decision were dry and technical, others highlighted the human costs of unacceptably long waiting lists. Here are excerpts from the opinion of Chief Justice Beverley McLachlin and Justice John Major, supporting their finding that prohibitions on private health insurance violate the Canadian Charter of Rights and Freedoms. The court was deadlocked on this Charter issue, but legal experts expect future challenges.
"Delays in the public system are widespread and have serious, sometimes grave, consequences. Dr. Daniel Doyle, a cardiovascular surgeon who teaches and practises in Quebec City, testified that a person with coronary disease is 'sitting on a bomb' and can die at any moment. He confirmed, without challenge, that patients die while on waiting lists."
"In a study of 200 subjects aged 65 and older with hip fractures, the relationship between pre-operative delay and risk of death was examined. The study concluded that the risk of death within six months after surgery increased significantly, by 5 per cent, with the length of pre-operative delay."
"Dr. Eric Lenczner, an orthopaedic surgeon, testified that the one-year delay commonly incurred by patients requiring ligament reconstruction surgery increases the risk that their injuries will become irreparable. Dr. Lenczner also testified that 95 per cent of patients in Canada wait well over a year, and many two years, for knee replacements. While a knee replacement may seem trivial compared to the risk of death for wait-listed coronary surgery patients, the harm suffered by patients awaiting replacement knees and hips is significant. Even though death may not be an issue for them, these patients 'are in pain' and some [are] confined to wheelchairs or housebound."
"In addition to threatening the life and the physical security of the person, waiting for critical care may have significant adverse psychological effects. A 2001 study concluded that roughly 18 per cent of people who visited specialists for a new illness reported that waiting for care adversely affected their lives. The majority suffered worry, anxiety or stress. This adverse psychological impact can have a serious and profound effect on a person's psychological integrity, and is a violation of security of the person."
"In R. v. Morgentaler,  [then]chief justice Brian Dickson concluded the psychological impact on women awaiting abortions constituted an infringement of security of the person. In Morgentaler, as in this case, the legislative scheme denies people the right to access alternative health care. In Morgentaler, as here, people in urgent need of care face the same prospect: unless they fall within the wealthy few who can pay for private care, typically outside the country, they have no choice but to accept the delays imposed by the legislative scheme and the adverse physical and psychological consequences this entails."
"We conclude, based on the evidence, that prohibiting health insurance that would permit ordinary Canadians to access health care, in circumstances where the government is failing to deliver health care in a reasonable manner, thereby increasing the risk of complications and death, interferes with life and security of the person as protected by section seven of the Charter."
Source: Chaoulli V. Quebec (Attorney General), Supreme Court of Canada, June 9, 2005
Maclean's June 20, 2005