Since the Supreme Court of Canada
handed down its decision in favour of Jacques Chaoulli
in June 2005, the implications of the case have been
as far-reaching and transformative as the aftershocks
of an earthquake.
Now, a massive wave of legal challenges
is set to come crashing down across Canada, in the form
of at least two new lawsuits — one in Alberta and
one in Ontario — that seek to apply the Chaoulli v Québec precedent.
As it becomes increasingly apparent
that Chaoulli will play a major role in several
upcoming suits — the case has already been cited
in 31 decisions in the intervening year and a half,
in almost every province — the decision's nuances
are now beginning to come into renewed focus. But big
changes aren't a given. There is reason to doubt that
Chaoulli v Québec can be applied to the
rest of Canada. While the Supreme Court did find the
healthcare system violated the Quebec Charter of Rights
and Freedoms they didn't find a breach of the Canadian
Charter — the justices were split three-three over
this prickly issue.
PLAYING
POLITICS
Dr Marie-Claude Prémont, associate dean of McGill
University's Law faculty, says the Supreme Court's decision
has been perverted in the name of political gain. "The
political interpretation of the Chaoulli decision fits
the agenda of the Charest and Harper governments," she
says, referring to Bill 33, passed in Quebec's National
Assembly on December 13. Bill 33 overturns the province's
ban on private medical insurance in certain cases. "Bill
33 opened the door to a system being set up, a system
which will lead to further growth of the private, for-profit
sector," says Dr Prémont. "There was no reason
for that based on the Chaoulli decision. Politicians
have been abusing what the Supreme Court has been saying,"
she says. "We're supposed to live in a democracy."
But the people have already spoken,
says lawyer John Carpay, who is providing financial
backing for a similar lawsuit in Alberta. "The majority
of Canadians support the right of individuals to spend
their own after-tax dollars to preserve and protect
their own health," he says. "The politicians are lagging
by sticking with an inefficient and ineffective government
monopoly over healthcare."
murray
v alberta
Mr Carpay is the executive director of the Canadian
Constitution Foundation, an independent advocacy group
that sponsors lawsuits to protect Canadians' constitutional
rights. Among the cases they are supporting is Calgary
accountant Bill Murray's class action suit that claims
Alberta violated his rights by denying him the ability
to purchase private medical insurance for two Birmingham
Hip Resurfacing procedures. In Alberta, like pre-Chaoulli
Quebec, private medical insurance is illegal. Mr Carpay
is hesitant when asked if the suit will succeed: "It's
often said that anyone who tries to make a prediction
on a court outcome is a fool. It's not a slam dunk,
but the Chaoulli decision is a strong precedent."
If Mr Murray's challenge works
its way through the Alberta courts and reaches the Supreme
Court, the justices may finally rule on the government's
violation of the Canadian Charter — a ruling that
would apply to the entire country.
Flora
v ohip
"The Canada Health Act will come tumbling down," declares
Richard Baker, the president of Timely Medical Alternatives,
a Vancouver-based company that sends patients to the
United States for faster treatment.
"Access" is the buzz word these
days in healthcare law; these new challenges ask whether
it is constitutional to make individuals wait for care
in the interests of maintaining a public healthcare
system.
Mr Baker thinks we may not even
have to wait for the Murray v Alberta decision
to answer "no" to that question; another case, long
in the making in Ontario, could potentially reach the
Supreme Court first. In 1999, retired Toronto science
teacher, Adolfo Flora was diagnosed with a form of liver
cancer. "He was told he had two weeks to live, to get
his affairs in order," recounts Mr Baker. He needed
a partial liver transplant, but his doctors told him
he was unlikely to survive and a deceased-donor liver
was near-impossible to procure. Mr Flora travelled to
England and received the partial transplant from his
brother — at a cost of $447,000, which the Ontario
Health Insurance Plan (OHIP) refused to reimburse him
for, leading to his lawsuit. He is still alive today,
and, in December 2005, had his lawsuit amended to cite
Chaoulli as a precedent. His lawsuit accuses OHIP of
violating his Canadian Charter rights to life and security
of person. Mr Baker expects an Ontario court ruling
on Flora v OHIP this year, which may pave the
way to an appeal by the losing party to the Supreme
Court. And then, hopes Mr Baker, say bye-bye to the
Canada Health Act.
suits
in the making
Mr Baker's company has seen a sharp rise in demand for
Canadian patients seeking faster treatment outside the
country recently; their revenues have doubled in the
last six months and they are seeing more and more patients
(including, said Mr Baker, a deputy provincial health
minister's wife whom he refuses to name).
In mid-November, Timely Medical
Alternatives announced their intention to help a client,
66-year-old Ontario resident Lindsay McCreith, sue the
Ontario government to collect reimbursement for the
MRI and brain tumour surgery he had done in Buffalo,
NY. His family physician said waiting for pre-surgery
permission from OHIP to go to Buffalo would have been
"totally unacceptable" for Mr McCreith's condition.
Another recent client, retiree
Shirley Healey, is preparing to apply for reimbursement
for a US surgery she had in October for her mesenteric
ischemia. Dr Robert Ellett, a Kelowna, BC, surgeon,
says he encouraged her to go because she wouldn't get
access to surgery in time in BC. "Anyone with blocked
arteries is not meant to wait six months to a year,"
he says. "I suggested that with the way things are in
Canada, I would go to the States as well." Ms Healey
had three arteries stented within several days in Bellingham,
Washington. Although Ms Healey will likely be reimbursed
because that type of treatment was not available at
all in BC, said Mr Baker, either or both of these cases
could well end up in the courts.
DESTINATION
UNKNOWN
Where will all this litigation lead us? What will the
post-Chaoulli era look like, for the public and for
physicians?
Well, access to healthcare will
not be improved for the vast majority by expanding private
medical insurance, says Dr Prémont. A study conducted
by the Organization for Economic Co-operation and Development
(OECD) in 2004 found "privately insured patients may
benefit... by obtaining shorter waiting times for elective
surgery. But there is no clear evidence that waiting
times are also reduced in the public sector, the only
choice for those on lower incomes." This finding confirms
the Romanow Commission's conclusions.
But Mr Carpay notes we already
have a multi-tiered system: the RCMP, federal prisoners,
and the Workers' Compensation Board all use private
insurance; and rich Canadians simply leave the country
for care. "Do you really believe a doctor's wife is
going to spend six months waiting to see a specialist
and 18 months for treatment?," he asks. Claiming that
legalizing private medical insurance for the general
public will create an inferior, multi-tiered system
is "intellectually dishonest," he says.
Perhaps the most significant result
of Chaoulli is the message that failure by a province
to provide timely healthcare will now result in legal
action and the introduction of private medical insurance.
In a lecture given in late November, Dr Patrick Monahan,
dean of York University's Osgoode Hall Law School, argued
that Chaoulli need not lead to an "American-style, two-tier"
system but instead effectively enshrines a new requirement
in the Canada Health Act: what he calls 'patient accountability.'
"Far from heralding the destruction
of Canada's publicly funded healthcare system," wrote
Dr Monahan, "I believe that Chaoulli may provide the
key to its reform and long-term sustainability... Patient
accountability means that those responsible for funding
the healthcare system and providing care are ultimately
answerable to patients for the timeliness of service
provided and, further, that this accountability can
be enforced through the legal system."
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