"In essence, the question is whether Quebeckers who are prepared to spend money to get access to health care that is, in practice, not accessible in the public sector because of waiting lists may be validly prevented from doing so by the state."
The Honourable Madam Justice Marie Deschamps, Chaoulli v. Quebec, paragraph 4.

"The Court recently held in Auton (Guardian ad litem of) v. British Columbia (Attorney General), [2004] 3 S.C.R. 657, 2004 SCC 78, that the government was not required to fund the treatment of autistic children. It did not on that occasion address in constitutional terms the scope and nature of "reasonable" health services. Courts will now have to make that determination. What, then, are constitutionally required "reasonable health services"? What is treatment "within a reasonable time"? What are the benchmarks? How short a waiting list is short enough? How many MRIs does the Constitution require? The majority does not tell us. The majority lays down no manageable constitutional standard. The public cannot know, nor can judges or governments know, how much health care is "reasonable" enough to satisfy s. 7 of the Canadian Charter of Rights and Freedoms ("Canadian Charter") and s. 1 of the Charter of Human Rights and Freedoms, R.S.Q. c. C-12 ("Quebec Charter"). It is to be hoped that we will know it when we see it."
Dissenting Opinion, Chaoulli v. Quebec, paragraph 163

Those who carefully study the decision of the Supreme Court of Canada in Chaoulli v. Quebec (Attorney General), 2005 SCC 35 can be excused for thinking that the judges on the majority and minority sides of the court spoke about entirely different matters. The majority contends that their ruling was based on a narrow interpretation of constitutional law. The minority argues that social policy should be determined by provincial legislatures, not by the courts. "In our view, the appellants' case does not rest on constitutional law but on their disagreement with the Quebec government on aspects of its social policy. The proper forum to determine the social policy of Quebec in this matter is the National Assembly." (paragraph 167) Conservatives who delight in the defeat of "socialized medicine" must be at least a little troubled to side with "judicial activists" who deem it appropriate to dictate social policy.

In writing the ruling of the majority, The Honourable Madam Justice Marie Deschamps stated that the issue was whether the state can limit how someone spends their money in a free society. That may be the issue, but the reasoning that produced no for the answer established a principle that is just as important - "waiting lists" were ruled to be a violation of Quebec Charter rights. (Paragraph 100).

If public health insurance produces waiting lists that violate rights (we've yet to see whether they violate the Canadian Charter), in addition to allowing private health insurance what other policy changes are necessary? Insurers are unlikely to rush in even though the court has ruled that their products are allowed in Quebec. They cannot make money selling to sick people who want to queue jump. However, the ruling means that people in Quebec can "self insure" by paying out of pocket for whatever private health services might be available. When the court eventually is asked to explore further implications of waiting lists and the Charter it will have to reconcile any ruling with its decision in Auton (Guardian ad litem of) v. British Columbia (Attorney General) which found that government was not required to fund the treatment of autistic children. The constitution may allow you to spend your money as you like, but it doesn't force the government to spend.

In their ruling the majority on the court referred to provisions that exist in other provinces to protect public plans against potential consequences of an expanded private sector. Specific reference was made to BC's Medicare Protection Act (paragraph 72). The court reasoned that prohibiting private health insurance was unnecessary since other provinces achieved similar public policy objectives with alternative measures. Could they have taken that position if they thought that some of those alternative measures are also unconstitutional? Those who aspire to overturn BC's Act should consider that argument. The court ruled that people are free to spend their money as they wish as long as there is no demonstrable harm for public policy objectives; it did not rule that private health providers can expand without limitation.

BC's law provides that someone who pays out of pocket to a private clinic for a service that is covered by the public plan can demand their money back from the clinic and go to court to get it. It does not appear that the Supreme Court decision in any way threatens that law. The question in BC is whether Premier Campbell will use the court decision to shift costs from public to private insurance under the guise of defining "medically necessary services". It is likely he will, and he will get away with it if the issues determined by the court are shrouded in misinformation.

June 10, 2005

The Supreme Court on Private Health

Those who are wringing their hands over the Supreme Court's decision on health care should take time to read the full decision. It is doubtful that it matters very much; privatization is proceeding with or without private health insurance, and private health insurance can't survive by insuring sick people who want to queue jump. The immediate reaction from Premier Gordon Campbell was to call for a precise definition of "medically necessary", a definition that would allow further privatization since services that are not medically necessary do not have to be covered by the public system. That attitude is why private payment for services "insured" by BC's Medical Services Plan (MSP) will probably increase from 1% to 5% by 2010. Enforcement of BC's Medicare Protection Act is on a complaints driven basis, and penalties under the Canada Health Act are a joke.

It takes about 135 pages to print out the full decision in Chaoulli v. Quebec (Attorney General). Jacques Chaoulli, a physician, and George Zeliotis, a patient who waited over a year for a hip replacement, argued that Quebec's prohibition on private health insurance is unconstitutional. It took one year and one day from the time the case was first heard by the Supreme Court of Canada on June 8, 2004, until it rendered its decision. Seven of the nine judges on the Court ruled on the case; four found that Quebec's prohibition on private health insurance for "insured services" covered by Medicare is contrary to the Quebec Charter of human rights and freedoms. Three of the four also found that the restriction violated the Canadian Charter of Rights and Freedoms. Three dissenting judges found that the restriction violates neither the Quebec Charter nor the Canadian Charter. The Honourable Madam Justice Justice Marie Deschamps, who wrote the majority decision, did not offer an opinion on the application of the Canadian Charter, thereby leaving the application of the court's ruling to the rest of Canada uncertain until another case comes forward. A reading of the full decision suggests that Deschamps would likely rule that an outright prohibition on the purchase of private health insurance for services covered by Medicare also violates the Canadian Charter. Provincial governments would be well advised to assume that the court's ruling applies to all of Canada.

The greatest consequence flowing from the court's decision may come not from the ruling that strikes down Quebec's prohibition on private health insurance, but from the court's argument that unacceptable waiting lists are a violation of Charter rights (4 say a violation of the Quebec Charter, 3 say a violation of the Canadian Charter). That may open the door to further cases regarding the role of private health care providers.

Private health insurers cannot survive if they always lose money. Insurers make money by covering people who aren't going to submit claims, or aren't going to claim more than they pay in premiums; underwriters are employed to turn down bad risks. That is why Medicare was created in response to insurers who routinely canceled coverage on elderly clients. The majority opinion in the Supreme Court case appear to think that opening the door to private health insurance will make private care available to more than the very wealthy (paragraph 55) without any negative impacts on the public system, based on evidence on private insurance in other countries. Apparently no evidence came before the court on how the market for private coverage is created by "creaming" the good risks. Just read the limitations on coverage, preexisting conditions and age that apply to private insurance in the UK to get an idea. Actuarial principles and the market will severely limit the potential for private health insurance. France is often used as an example by those who advocate a second "private tier" of health insurance, but a 2004 OECD working paper on private insurance in France says that "Unlike in other countries, private insurance in France is not used to jump public sector queues or to obtain access to elite providers. Rather, it provides reimbursement for co-payments required by the public system and coverage for medical goods and services that are poorly covered by the public system, most notably dental and optical care."

The threat to Medicare doesn't come from private health insurance, it comes from governments who will use the Supreme Court decision as a signal that the court approves private clinics and queue jumping based on ability to pay. The OECD working paper on private insurance in France notes that "the demand for private health insurance has increased, at least in part, in response to deterioration in the extent of public coverage for certain types of care." Provincial governments were cutting public coverage for "certain types of care" (physiotherapy, eye exams, chiropractic, and medically necessary services as a result of longer waiting lists) long before the Supreme Court decision. It is ironic that the decision, which was driven by the argument that wait lists are a violation of the Charter, may end up being responsible for further deterioration of care. If provincial governments are serious about supporting single tier health care, they must make the public system good enough so that there will be no effective demand for private alternatives.