Single-tier health care system questioned
JEREMY RICHLER
While Canadians strongly support health
care as a basic, fundamental right for all, questions have arisen on
whether the monopoly of provinces delivering a single-tier,
universally-administered system should continue, Toronto lawyer
Jeremy
Richler writes in Lawyers
Weekly.
In a recent Environics poll, 54 per cent
of Canadians “agree that individual Canadians should be given the
right to buy private health care within Canada if they do not receive
timely access in the public system,” even if this were to weaken
the principle of universality, with some having quicker access to
care than others, the article says.
Forty three per cent of respondents
disagreed, it adds.
“The legal precedent for this line of
reasoning can be found in Chaoulli
v. Quebec (Attorney General) [2005]
S.C.J. No. 33, whereby the Supreme Court used the principles of
fundamental justice enshrined in the Canadian Charter of Rights and
Freedoms to allow limited private insurance for the delivery of
medically necessary care,” writes Richler.
“In a split decision, the majority for
the court found that private health insurance is entirely legitimate
where a public monopoly impedes access to health care services,
undermining both the security of the person and the principles of
fundamental justice.”
Though Canadians will continue to
passionately debate the merits of increased privatization of health
care, initial polling shows the pendulum swinging in favour of
Chaoulli and limited two-tier care, writes Richler.
“The sooner our politicians are
pro-active in addressing these principles of fundamental justice
instead of stale, misguided talking points, the better off Canadians
will be,” the article says.
Beyond
platitudes: Two-tier health care to preserve principles of
fundamental justice.
Canada’s
publicly administered, universally accessible health care system has
since its inception, been at the core of our national identity. Most
Canadians strongly support the notion that access to health care is a
basic, fundamental right, one that must be preserved regardless of
ability to pay.
What
is becoming less clear is whether the provinces that deliver health
care should continue to have a monopoly with a single tier,
universally administered system.
In
a recent Environics poll, a small majority (54%) of Canadians “agree
that individual Canadians should be given the right to buy private
health care within Canada if they do not receive timely access in the
public system,” even if this were to weaken the principle of
universality, with some having quicker access to care than others.
43% of respondents disagreed. (The Environics Institute, “What
Canadians think about their health care system.”)
The
legal precedent for this line of reasoning can be found in Chaoulli
v. Quebec (Attorney
General) 2005 SCC 35. (hereinafter Chaoulli),
a case whereby the Supreme Court used the principles of fundamental
justice enshrined in the Canadian
Charter of Rights and Freedoms
(hereinafter “Charter”) to allow limited private insurance for
the delivery of medically necessary care.
In
a split decision, the majority for the court found that private
health insurance is entirely legitimate where a public monopoly
impedes access to health care services, undermining both the security
of the person and the principles of fundamental justice.
Justice
Deschamps, in her ruling, sides with the majority opinion, but
differs slightly in that she places emphasis on the public monopoly’s
violation of s.1 of the Quebec Charter, rather than s.7 of the
Charter.
She squarely advocates the need for change, citing that “ inertia
cannot be used as an argument to justify deference.” (Chaoulli,
at para. 97.)
McLachlin
and Major note that the “Charter
does not confer a freestanding right to health care. However, where
the government puts in place a scheme to provide health care, that
scheme must comply with the Charter.”
(Chaoulli,
at para. 104) Their ruling finds that the virtual monopoly of the
government in delivering health care leads to erosion of the security
of the person and principles of fundamental justice in this
authoritative passage:
The state has effectively limited access to private
health care except for the very rich, who can
afford private care without need of
insurance. This virtual monopoly, on the evidence, results in delays
in treatment that adversely affect the citizen’s security of the
person. Where a law adversely affects life, liberty or security of
the person, it must conform to the principles of fundamental justice.
This law, in our view, fails to do so. (Chaoulli
at para. 106)
Binnie
and LeBel, in their dissent, challenge the central assumption that
the proliferation of private health care will ameliorate outcomes and
security of the person. They insist the majority view point provides
“an overly optimistic view of the benefits offered by private
insurance” and “an oversimplified view of the adverse effects of
the public health system. “ (Chaoulli,
at para. 169)
Their
final point is that the majority is overbroad in its construction of
s.7, which is meant primarily to address rights inherent to criminal
law as enshrined in ss.8-14 of the Charter.
While
the dissent challenges the assumption that enabling private insurance
will necessarily lead to improved health outcomes, their reasoning
misses the point, and their narrow construction of s.7 is a central
flaw therein.
The
Charter
is meant to underscore the relationship between the individual and
the state, and to highlight the most basic, fundamental freedoms with
which any government legislation must comply. The courts must guard
strenuously against using the Charter
to make policy, as this is role inherent and central to elected
legislatures.
The
relationship between private health care and patient outcomes is a
red herring. What is very real is the prospect of death for any sick
Canadian where medically necessary services are required, but absent.
It
then follows that as a principle of fundamental justice, individuals
must have the right to purchase public insurance when wait times are
long, medically necessary services are unavailable, and acute illness
or death are distinct possibilities.
Though
Canadians will continue to passionately debate the merits of
increased privatization of health care, initial polling shows the
pendulum swinging in favour of Chaoulli
and limited two-tier care. The sooner our politicians are proactive
in addressing these principles of fundamental justice instead of
stale, misguided talking points, the better off Canadians will be.
Jeremy
Richler is a sole practicing lawyer in Toronto in good standing with
the Law Society of Upper Canada. He is a member of the Canadian Bar
Association, and can be reached at www.jeremyarichler.com
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