JANUARY 15, 2007


Chaoulli copycat cases crop up
across country

Using Quebec's landmark Supreme Court decision as a precedent, more Canadians challenge single-payer system

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.

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.

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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