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Just Medicare

Just Medicare: What's In, What's Out, How We Decide

Copyright Date: 2006
Pages: 432
  • Book Info
    Just Medicare
    Book Description:

    Just Medicareillustrates that legal scholars can also contribute to the issue of how to allocate scarce health resources by determining what constitutes fair processes for decision-making, and by challenging unjust processes.

    eISBN: 978-1-4426-7645-9
    Subjects: Health Sciences

Table of Contents

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  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-viii)
  3. Acknowledgments
    (pp. ix-2)
  4. Introduction
    (pp. 3-12)

    The most important issue facing Canadian health care today is access to care – what services should be available to Canadians and how these services are best managed. Newspaper headlines bemoan increasing waiting times, the aging population, and ever-increasing demands for expensive new treatments. Costs are portrayed as spiralling. The solution to these problems is not obvious. Growing distrust of the ability of governments to manage health care systems effectively, coupled with a heightened scepticism regarding the authority and judgment of physicians, have led increasing numbers of citizens to demand a greater role in deciding how their own health care system...

  5. Part One: Constitutional and Administrative Law Challenges to the Boundaries of Medicare

    • 1 What Is In and Out of Medicare? Who Decides?
      (pp. 15-41)

      In recent years five bodies¹ have independently investigated and issued reports on the sustainability of publicly funded Medicare in Canada. In spite of the different ideologies of the governments that commissioned them, all confirmed certain fundamental principles. The last, the Romanow Commission on the Future of Health Care in Canada, came to the ‘overriding conclusion that there is no need to abandon the principles or values underpinning Canada’s health care system.’²

      That system rests on two bedrock principles. First, access to important medical care is distributed on the basis of need, rather than ability to pay. Second, the services covered...

    • 2 Charter Challenges and Evidence-Based Decision-Making in the Health Care System: Towards a Symbiotic Relationship
      (pp. 42-57)

      The health care system has become increasingly subject to judicial scrutiny, as patients and providers bring court challenges under theCanadian Charter of Rights and Freedoms.¹ At the same time, health care providers and policy-makers have devoted increasing attention to developing and implementing evidence-based decision-making (EBDM).² However, legal actions have given little, if any, explicit consideration to the objectives and methods of EBDM. This chapter hopes to bridge that gap. With a view to improving the health care system overall, it seeks to encourage cross-disciplinary discussions about EBDM and theCharteramong lawyers, judges, doctors, and health policy experts. Turning...

    • 3 Misdiagnosis or Cure? Charter Review of the Health Care System
      (pp. 58-79)

      Following the Supreme Court of Canada’s decision inEldridge v. British Columbia (Attorney General),¹ the potential application of theCanadian Charter of Rights and Freedoms² in the health context, and the role for the courts in determining the boundaries of the Canadian Medicare system have expanded significantly.³ As Donna Greschner points out in chapter 2, theCharterhas been invoked to challenge both the underlying principles of Medicare and the type of services that are publicly funded.⁴ In the following paper I will discuss a recent case that challenges not government limits on public funding but rather the fundamental concept...

    • 4 Claiming Equity and Justice in Health: The Role of the South African Right to Health in Ensuring Access to HIV/AIDS Treatment
      (pp. 80-104)

      Ensuring access to health care for poor and vulnerable populations is a challenge regardless of a country’s level of development. But it is obviously far greater in a country like South Africa, where almost half the population lives in poverty and people are serviced by a public health care system not originally constructed with the intention of providing universal and equitable health services. This challenge is exponentially greater in light of the emergence of a massive and explosive HIV/AIDS epidemic, the largest in the world. In South Africa progress towards the goal of universal and equitable health care access has...

  6. Part Two: Access to Abortion and Reproductive Health Services

    • 5 Abortion Denied: Bearing the Limits of Law
      (pp. 107-136)

      The study of abortion is the study of law’s limitations and of the women who bear them. In 1988, the Supreme Court of Canada struck down section 251 of theCriminal Code,² thus decriminalizing abortion. Yet despite this decision inMorgentaler,³ there has been little improvement for Canadian women in the availability of abortion services. Prior to 1988, Canadian women had limited access to therapeutic abortion services and could be prosecuted for obtaining an abortion outside of the parameters of theCriminal Code.⁴ Sixteen years later, Canadian women still have limited access to these services, although the provisions of the...

    • 6 Protecting Fairness in Women’s Health: The Case of Emergency Contraception
      (pp. 137-167)

      It is estimated that 50 per cent of pregnancies in Canada are unintended.¹ Approximately 24 per cent of these pregnancies end in abortion.² In 2002 Canadian women obtained 105,154 induced abortions.³ Abortion is now the most common outcome for teenage pregnancies. For every 100 live births for women aged 15–19 in 2002, there were 125 abortions.⁴ Statistics from Alberta also reveal that abortions among younger women are performed later in pregnancy.⁵ Sanda Rodgers describes well the increasing difficulty that women, and especially adolescents, have in obtaining access to abortion services in an affordable and timely manner (see chapter 5,...

    • 7 Achieving Reproductive Rights: Access to Emergency Oral Contraception and Abortion in Quebec
      (pp. 168-190)

      Although controversies relating to access and allocation of services are encountered in virtually all facets of health care, in Quebec they are particularly evident in matters relating to contraception and abortion. The social, economic, and to a somewhat lesser extent, political ramifications surrounding the provision of these services influence policies affecting the reproductive rights of the individual. The two preceding chapters examine access to emergency contraception and to abortions. This chapter reviews access to both in Quebec.

      In a paper made public on 26 February 1996, the Quebec Ministry of Health and Social Services set out the priorities and strategies...

  7. Part Three: Access for the Vulnerable:: Case Studies from Aboriginal Health and Mental Health

    • 8 Jurisdictional Roulette: Constitutional and Structural Barriers to Aboriginal Access to Health
      (pp. 193-215)

      Aboriginal peoples have a unique relationship with the government of Canada that is characterized, among other things, by a complex legislative and constitutional regime. Because this regime has developed in an uneven and fractured fashion, it has resulted in jurisdictional confusion and policy vacuums regarding many aspects of Aboriginal peoples’ lives.¹ One such aspect is the governance of matters relating to health. The experience of the reserve communities of Grassy Narrows and White Dog are illustrative of how jurisdictional divisions complicate health governance. The river system, lake, and fish, upon which these communities had relied for sustenance, over the course...

    • 9 The Rural Aboriginal Health Gap: The Romanow Solutions?
      (pp. 216-230)

      Despite its obvious merits, the Canadian health care system continues to suffer from disparities both in the health status of Canadian citizens and in their ability to access health care.¹ One source of these disparities is geographic.² The problems created by geography are particularly acute for rural Canadians. Moreover, given that more than 50 per cent of Canada’s Aboriginal peoples³ live in rural areas,⁴ rural health concerns directly affect the well-being of Canada’s Aboriginal population as a whole.

      In this chapter, I will analyse the problem faced by rural Aboriginals in accessing health care services and improving their health status....

    • 10 Access to Treatment of Serious Mental Illness: Enabling Choice or Enabling Treatment?
      (pp. 231-258)

      Canadian mental health policy over the past few decades has centred upon the dual objectives of ensuring that persons with serious mental illness¹ receive effective, timely treatment in instances of acute crisis and ongoing health maintenance in the community.² These objectives have roundly been deemed to have been obstructed by a lack of governmental commitment and funding at both the provincial and federal levels, a problem that shows up most starkly when the importance of non-medical supports such as basic income and secure housing are contemplated under the rubric of the social determinants of health.³ The resulting situation for persons...

  8. Part Four: Rationing Access:: The Role of the Physician Gatekeeper

    • 11 The Legal Regulation of Referral Incentives: Physician Kickbacks and Physician Self-Referral
      (pp. 261-280)

      The regulation of private health care has become a central issue in Canadian health policy. The specific issue that has attracted the most attention is whether physicians and patients may opt out of the single payer system for physician services and set up a parallel private system. Although the prohibition of opting out is not a condition for federal-provincial transfer payments under theCanada Health Act,¹ a recent paper notes that all provinces have enacted prohibitions and disincentives to curtail opting out by physicians and patients.² In addition, the Supreme Court of Canada has recently found unconstitutional under theCanadian...

    • 12 The Costs of Avoiding Physician Conflicts of Interest: A Cautionary Tale of Gainsharing Regulation
      (pp. 281-306)

      There is little doubt that health care providers often face serious and troubling conflicts of interest in making health care allocation decisions. Because physicians, in particular, have the difficult role of gatekeeping, they frequently become the target of economic arrangements designed to influence their utilization patterns. Parties external to the doctorpatient relationship can, through financial incentives, exercise powerful, behind-the-scenes leverage over physician decision-making. Such financial incentives threaten to compromise physician judgment, bias clinical decisions, and promote objectives other than patient interests.¹

      Conflicts of interest should certainly concern Canadian health care policy-makers and scholars. All trends in Canadian health care seem...

  9. Part Five: Free Trade Agreements:: Strengthening or Undermining Access to Health Care?

    • 13 The Agreement on Trade-Related Aspects of Intellectual Property Rights and Its Implications for Health Care
      (pp. 309-330)

      Ours is a world where knowledge and information have increasingly replaced goods and services as the ultimate source of power. Although global restructuring has led academics to examine the genesis and nature of ‘intellectual property,’ at least one area of the diverse study of intellectual property rights (IPR) – the implications of IPR for healthcare delivery, access, and benefits – remains underresearched. This chapter addresses the role of theAgreement on Trade-Related Aspects of Intellectual Property Rights¹ (TRIPs) in health-care arrangements focusing, first, on its relevance for developing countries and, second, on its impact within Canada. The TRIPs may not seem to...

    • 14 Patient Mobility in the European Union
      (pp. 331-352)

      In the European Union (EU) issues of access to and allocation of health care services are primarily under the jurisdiction of individual national governments. Recently, however, EU institutions such as the European Court of Justice (ECJ) have intervened and exerted their own influence upon this otherwise national endeavour. This can be seen in the Court’s rulings on the cross-border mobility of patients and, thus, on the portability of health care rights. The provisions in the European Communities Treaty (EC Treaty) relating to mobility and portability are based on free market principles and were not originally intended to encompass health care....

  10. Part Six: Manufacturing Demand for Access:: The Role of the Media and the Commercialization of Research

    • 15 The Power of Illusion and the Illusion of Power: Direct-to-Consumer Advertising and Canadian Health Care
      (pp. 355-378)

      Issues of access and allocation of health care resources are intertwined with the processes by which demand for health care is determined. This chapter and those that follow explores how demand or ‘need’ for health care is manufactured. Canada permits advertising of prescription drugs directed to physicians but like most developed countries prohibits advertising directly to consumers. Direct-to-consumer advertising (DTCA) is permitted in only two countries in the Organization for Economic Cooperation and Development (OECD) – the United States and New Zealand. Advertising is a powerful means of creating demand for products and perceptions about diseases, treatments, and patients and, as...

    • 16 The Media, Marketing, and Genetic Services
      (pp. 379-395)

      The public gets most of its information about genetics and biotechnology from the popular media. From stories about gene discoveries to the prospect of human cloning, the media have informed the public debate and helped to set the broader research and policy agenda.¹ As a result, the popular media have emerged as tremendously important sources of science information. They not only inform public perceptions about the risks and benefits of a given technology or area of research, but help to shape the discourse around important policy issues.

      Often, however, the media seem to get it wrong. Many view press coverage...

    • 17 Commercialized Medical Research and the Need for Regulatory Reform
      (pp. 396-426)

      Relations between academia and the pharmaceutical industry have always existed, and there has always been industry support for medical research. The growing commercialization of science in the past three decades, however, has fundamentally changed the landscape of medical research. These changes have a significant impact on health care practice itself, and they affect governmental policies related to funding of and priority setting within health care. Commercial interests increasingly determine the direction of medical research, which to a large degree determines what type of therapy will be available in the future. In addition, as I will discuss in this chapter, there...

    • 18 Grasping the Nettle: Confronting the Issue of Competing Interests and Obligations in Health Research Policy
      (pp. 427-448)

      Health research policy has a significant, but often underappreciated, impact on access to health care in Canada. For example, when the government of Canada prohibits the creation of embryos for research, it is possible that advances in embryonic stem cell research that could potentially be relevant to the treatment of Parkinson’s disease will be delayed or never realized. But perhaps the funds that would have been directed to this research will be spent on other therapeutic options that prove to be more effective and less costly to the health care system. If Health Canada lowers its requirements for the demonstration...

  11. Conclusion
    (pp. 449-456)

    All countries struggle with putting limits on publicly funded health care, and Canada is no exception. This struggle is complicated by the fact that fairness must be fluid: What is fair today in terms of access will not be what is fair in twenty years’ time. Changing technologies, needs, and resource levels mean that it is difficult to establish meaningful entitlements or rights that are relevant through these changing circumstances. This has particular resonance in the Canadian system of health care, as the core entitlements to hospital and physician services were laid down in the 1960s. The system is being...

  12. Contributors
    (pp. 457-458)