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Access to Care, Access to Justice

Access to Care, Access to Justice: The Legal Debate Over Private Health Insurance in Canada

Colleen M. Flood
Kent Roach
Lorne Sossin
Copyright Date: 2005
Pages: 500
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  • Book Info
    Access to Care, Access to Justice
    Book Description:

    Edited by Colleen Flood, Lorne Sossin, and Kent Roach, the collection explores the role that courts may begin to play in health care and how this new role is of crucial importance to the Canadian public and their governments.

    eISBN: 978-1-4426-7058-7
    Subjects: Law, Business

Table of Contents

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  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-viii)
  3. Preface
    (pp. ix-x)
    Roy J. Romanow
  4. Acknowledgments
    (pp. xi-xiv)
    Colleen M. Flood, Kent Roach and Lorne Sossin
  5. List of Contributors
    (pp. xv-xviii)
  6. Introduction
    (pp. xix-2)

    The catalyst for this book was a Supreme Court decision on whether banning private health insurance for services covered by the public system violated the Constitution. On June 9, 2005, the Supreme Court of Canada released its judgment inJacques Chaoulli and George Zeliotis versus the Attorney Generals of Quebec and Canada.¹ Dr. Chaoulli, a doctor who wanted to offer private health services, and Mr. Zeliotis, a patient who had been on a waiting list in the Quebec health system, argued that that Quebecʹs prohibition of private health insurance for services covered by the public system violated both the Canadian...

  7. What Did the Court Decide in Chaoulli?

    • Chaoulli: The Political versus the Legal Life of a Judicial Decision
      (pp. 5-18)

      Major decisions of high courts in constitutional democracies have a double life. The existence we readily recognize is the one at the legal level – what the judges actually wrote, their arguments and holdings and how judges and lawyers subsequently interpret and use the judgesʹ words. But high court decisions on matters of great public interest and controversy live at another level – at the political level, in the public discourse and debate of the political community.¹ At this political level, such decisions take on virtually a mythic quality and their significance depends not on what the judges actually said...

    • The Chaoulli Judgment: Less Than Meets the Eye – or More?
      (pp. 19-31)

      The meaning of judicial decisions, like beauty, is often in the eye of the beholder. Different beholders of the June 9, 2005 decision of the Supreme Court of Canadaʹs seven-judge panel inChaoulli v. Québec¹ see meanings spanning a spectrum of contrasts. Some see the judgment as marking the end of Canadaʹs primarily publicly-funded nationally-structured health service, usually described, with a different scope from the wordʹs roots in the U.S., as Medicare. At the other extreme, some see only judicial condemnation of a failing of Québecʹs provincial health care service to satisfy requirement of Québec law, with no necessary implications...

    • Chaoulli and Quebecʹs Charter of Human Rights and Freedoms: The Ambiguities of Distinctness
      (pp. 32-55)

      TheCharter of Human Rights and Freedoms¹ is undeniably one of the founding stones of the Quebec legal order. Because of the role it plays, this Charter can rightly claim a constitutional status, at least if this word is understood in a functional perspective.² This extraordinary status is not only confirmed in the Charter through its primacy clause,³ but also in the preliminary provision of the provinceʹsCivil Code, which states,inter alia, that ʹ[t]he Civil Code of Québec,in harmony with the Charter of Human Rights and Freedomsand the general principles of law, governs persons, relations between persons,...

    • Charter Perspectives on Chaoulli: The Body and the Body Politic
      (pp. 56-72)

      The Supreme Court of CanadaʹsChaoullidecision brought together two of the most revered structural elements of Canadian life – constitutional rights and one tier public medicine.¹ The unexpected ruling pinpointed Quebecʹs legislated prohibition against private medical insurance as the material cause of unacceptable waiting periods for access to health care and then declared the offending provisions invalid. The stay of the invalidation order for one year, granted upon the request of the Attorney General of Quebec, provides a window of opportunity to examine the judgment for its legal, political and social policy implications. Such examination is warranted becauseChaoulli...

  8. Chaoulli and the Proper Role of the Courts in a Democracy

    • Worse than Lochner?
      (pp. 75-100)

      On the morning thatChaoulli¹ came down, I received an e-mail from my colleague Arthur Ripstein asking: ʹWhat do you think of the Supreme CourtʹsLochnerdecision?ʹ

      At first blush, this way of gauging my reaction was deeply puzzling, because the cases appear to have little in common.Lochnerwas a judgment of the United States Supreme Court, finding unconstitutional an obscure New York statute that set maximum hours of work in bakeries and which affected perhaps a few thousand workers.²Chaoullistruck down Quebecʹs ban on private health care insurance, a core design feature of Canadaʹs most cherished social...

    • ʹCondition Criticalʹ: The Constitution and Health Care
      (pp. 101-115)

      Most constitutional commentators took one of two approaches to this so-called Charter-bashing. Some dismissed (and, no doubt, still will) it as alarmist and mere scare-mongering; the Charter was a jewel in the constitutional crown and should not be derided as mere indulgent bauble. Others patronised such critics by suggesting that they had something useful to say by way of caution, but that they over-sold themselves and under-stated the positive effects of the Charter. Nevertheless, this ranting had some impact because the Supreme Court did modify and mollify its approach in light of these criticisms, especially in its approach to equality...

    • Wealthcare: The politics of the Charter Revisited
      (pp. 116-138)

      ʹHealth is wealthʹ is one of my Irish mother-in-lawʹs favourite sayings. InChaoulli v. Quebec (A.G.),¹ however, the Supreme Court of Canada turned this aphorism on its head. In a four-to-three decision, the Court held that, given the failure of the Quebec government to provide timely access to Medicare services, Quebeckers have a constitutional or quasi-constitutional² right to purchase private health insurance to access corresponding services from commercial health care providers.

      What would be the implications of this decision if it were implemented and applied across the country? One implication is that Canadians who can afford private health insurance would...

    • Déjà Vu All Over Again: Chaoulli and the Limits of Judicial Policymaking
      (pp. 139-158)

      On June 9, 2005 the Supreme Court of Canada arguably provided its conservative critics with the best of all possible decisions. Not only does the judgment inChaoulli v. Québec (Attorney General)² open the door to their preferred policy outcome, it confirmed many of their warnings about non-interpretive, results-oriented judicial activism.Chaoullias much as any other decision illustrates the fact that the Supreme Court is a political, rather than legal, institution. It makes policy not simply as an accidental byproduct of performing its ordinary adjudicative function, but because it exercises power on the basis of judgments about which legal...

  9. Chaoulli and Prospects for Increased Access to Justice and Care

    • ʹTowards a Two-Tier Constitution? The Poverty of Health Rightsʹ
      (pp. 161-183)

      Where you sit often has a significant impact on where you stand on issues of rights. Every individual at some point in her life will come into contact with the health care system. Not everyone will experience poverty, and consequently dependence on the state for income support. Rights do not exist in the abstract. They take on meaning through social, economic, political, historical and personal contexts. In this chapter, I suggest there is a disjuncture between how the Supreme Court has approached access to basic minimum levels of sustenance as a matter of social policy and access to private health...

    • The Courts and Medicare: Too Much or Too Little Judicial Activism?
      (pp. 184-204)

      The boldness of the Supreme Courtʹs decision inChaoulli v. Quebec (Attorney General)¹ caught many by surprise. Few expected that a Court that had recently rejected equality claims that autistic children should receive intensive treatment² would hold that Quebecʹs prohibition on private health insurance and private payments for services covered in the public system was fundamentally unjust. The decision was even more surprising because the Court had refused under s.7 of the Charter to examine the adequacy of social assistance or to require that the criminal law should only be used to prevent harm or that it should respect the...

  10. Evidence in the Chaoulli Case

    • Implications of Chaoulli for Fact-Finding in Constitutional Cases
      (pp. 207-215)

      The widespread public concern about the Supreme Court of Canadaʹs astounding decision inChaoulli¹ springs largely from the fear that it will, in Roy Romanowʹs words, signal ʹthe end of medicare as we know it.ʹ² But this fear depends on a contested empirical proposition: that the availability of private health insurance will undermine the public health insurance system. If the public health care system could function properly in the presence of private insurance, then allowing private insurance would not mean the end of medicare as we know it. And to a large extent, the difference between the trial judgment and...

    • Experts and Evidence: New Challenges in Knowledge Translation
      (pp. 216-219)

      The Supreme Court decision inJacques Chaoulli and George Zeliotis versus the Attorney Generals of Quebec and Canada¹ has raised some critical questions regarding the future course of health care financing in Canada. One gauge of the importance of an issue or event is the number of conferences that are organized around it, and the rapidity with which this occurs. Including the conference from which the papers in this volume are drawn, at least three nationally-advertised conferences have materialized in the past few months.² The focus of each is some combination of the legal and policy ramifications of, and potential...

    • Different Interpretations of ʹEvidenceʹ and Implications for the Canadian Healthcare System
      (pp. 220-234)

      The majority decision of the Supreme Court inChaoulli v. Quebec (Attorney General)¹ provides an excellent illustration of the two different meanings that exist for the word ʹevidence.ʹ On one hand evidence is proof or convincing grounds for believing something, and on the other evidence is what a person says under oath in court. They are not mutually exclusive, but it is understandable that scientists and lawyers may weigh their relative importance differently.

      This paper will focus on the evidence presented both at the Quebec Superior Court and the Supreme Court of Canada trials of theChaoullicase, as it...

  11. Comparative Evidence About Private Health Insurance

    • How to Defend a Public Health Care System: Lessons from Abroad
      (pp. 237-256)

      TheChaoullidecision is a ʹwake upʹ call for those Canadians interested in securing an efficient and equitable health care system. As many have noted over the decades, health care systems public (e.g. Canada and the UK) and private (e.g. the USA) are always in a state of ʹcrisisʹ² This notion of crisis is an inevitable product of two certainties: firstly that we are all suffering from a terminal, sexually transmitted disease called life, and secondly that resources always and everywhere are scarce and have to be rationed. The result inevitably is that some folk are denied care from which...

    • Blending Private and Social Health Insurance in the Netherlands: Challenges Posed by the EU
      (pp. 257-277)

      InChaoulli v. Quebec,the Canadian Supreme Court has opened the floodgates to a two-tier healthcare system.¹ In reaching their conclusion that Quebec laws were in breach of s.7 of the CanadianCharter,Chief Justice McLachlin and Justice Major referred favourably to the coexistence of public (or social) insurance with private insurance in a number of jurisdictions within Europe. But at the same time as the justices of the Supreme Court allowed the introduction of private insurance in Quebec, within the Netherlands the health care system was moving to integrate social and private insurance. The new Dutch Health Insurance Bill...

    • 16) The Role of Private Health Insurance in Social Health Insurance Countries – Implications for Canada
      (pp. 278-295)

      Private health insurance serves three distinct functions in Western European social health insurance systems.¹ The first is as analternativefor mandatory (statutory) social health insurance arrangements. In Germany, a part of the population may chose between joining private health insurance and remaining in social health insurance. The second function is tosupplementbasic health insurance, providing coverage for services not covered by social insurance or to cover the financial risks of co-payments and coinsurance. A third function of private insurance is to provide what can be termedcomplementary or double-covercoverage, in which insured purchase additional private insurance even...

    • Finding Health Policy ʹArbitraryʹ: The Evidence on Waiting, Dying, and Two-Tier Systems
      (pp. 296-320)

      The majority of the Supreme Court in theChaoullidecision decided that the Quebec health care system must be ʹtwo-tierʹ to be constitutional.¹ In other words, in order to comply with the Quebec Charter, residents of Quebec must be allowed to purchase private insurance so that they may avoid waiting for care in the public system. The court, however, was evenly split 3:3 on whether or not s.7 of the CanadianCharterwas breached and thus split on the application of this ruling to the rest of Canadian medicare. Because Justice Deschamps did not rule on the Canadian Charter but...

  12. The Implications of Private Insurance

    • The CMAʹs Chaoulli Motion and the Myth of Promoting Fair Access to Health Care
      (pp. 323-346)

      On August 18, 2005, 64% of delegates at the annual meeting of the Canadian Medical Association endorsed a motion that called for the introduction of private health insurance to pay for health care services ʹwhen timely access to care cannot be provided in the public health care system.ʹ¹ This was just one of many public statements by professional organizations and interest groups that followed the Supreme CourtʹsChaoullidecision. In an interview for CanWest newspapers, the outgoing CMA president, Dr. Albert Schumacher, stated that the CMAʹs endorsement of this motion ʹtotally reinforcedʹ theChaoullidecision.² The vote followed a clear...

    • Preserving Privilege, Promoting Profit: The Payoffs from Private Health Insurance
      (pp. 347-368)

      A majority of the Supreme Court of Canada in theChaoullidecision were convinced that the ability to access private health insurance would result in ʹmanyʹ Quebeckers being able to avoid unnecessary pain and suffering resulting from long waiting times in publicly-funded Medicare. In this paper, I review the extent to which private insurance is a prevalent form of financing around the world. I argue that private health insurance plays a minimal role worldwide in terms of total expenditures – with the notable exception of the US, and even that very limited role depends on the support of the public...

    • Opening Medicare to Our Neighbours or Closing the Door on a Public System? International Trade Law Implications of Chaoulli v. Quebec
      (pp. 369-390)

      With few exceptions, constitutional law in Canada is made with little express regard for the rules and institutions we ordinarily associate with economic globalization.¹ Yet there are important linkages between domestic constitutional systems and bilateral, regional, and transnational commitments undertaken by states around the world. These commitments may mirror, amplify, or conflict with national constitutional commitments. We argue that this is precisely one of the problems with the Supreme Court of Canadaʹs decision inChaoulli v. Quebec (Attorney General)– it is constitutional law made without regard for these instruments and their effects. It is, in other words, constitutional law...

  13. Possible Governmental Responses to Chaoulli

    • Promises, Promises – Setting Boundaries Between Public and Private
      (pp. 393-412)

      The Chaoulli decision requires us to look at the Canadian health system no longer from the perspective of whether is works well or badly but from that of its impact on the countryʹs proclaimed fundamental moral values. This is, after all, the unique role of our court system and it is the foremost responsibility of the Supreme Court to articulate and uphold those values. It is noteworthy that all the judges who had to deal with the case accepted that the evidence showed that individual rights to the integrity of the person had been violated but that only the four...

    • Politics and Paradoxes: Chaoulli and the Alberta Reaction
      (pp. 413-428)

      It would be an understatement to say that theChaoullidecision created a political stir across Canada. For many, including various national and provincial politicians, the case was viewed as a disastrous blow to the integrity of Canadaʹs public health care system. In the face of such a potentially explosive decision, many provincial leaders strove to put a positive ʹpublic health careʹ spin on the decision, suggesting that the case was a wake up call to provincial governments to do their best to provide adequate support to the public system. Likewise, the federal government implemented a damage control strategy that,...

    • Private Insurance for Medicare: Policy History and Trajectory in the Four Western Provinces
      (pp. 429-453)

      Canadian Medicare is characterized by: 1) narrow but deep coverage for medically necessary/required services; 2) provincial/territorial (P/T) administration of single-payer insurance within broad, national principles; and 3) P/T legal and administrative regimes that prohibit or discourage private insurance of Medicare services.¹ It is the third feature in particular that makes the Canadian model of Medicare unique among OECD countries.² Historically, this meant that public Medicare insurance administered by governmental authorities eventually trumped alternative, public-private model of health insurance subsidization.³ In todayʹs context, this means that Canada stands alone among OECD countries in not permitting – or encouraging through subsidy –...

    • A Just Measure of Patience: Managing access to cancer services after Chaoulli
      (pp. 454-476)

      In this chapter we examine the issue of waiting and coverage. We consider the options to reduce wait times based on our experience with cancer services in Ontario, we comment on the promise of private provision versus private insurance in improving access, and we conclude with some of the immediate considerations for cancer services in the light ofChaoulli v. Quebec (Attorney General)

      The rationing of services is intrinsic to all health care systems. Some systems ration on the basis of ability to pay and some ration on the basis of need. How health care systems set these priorities for...

    • Section 7 ʹSafety Valvesʹ: Appealing Wait Times Within A One-Tier System
      (pp. 477-502)

      InChaoulli,¹ a majority of the Supreme Court struck down provisions in Quebecʹs health and hospital insurance legislation prohibiting private insurance for otherwise publicly funded health care services. Seven rather than the usual nine judges sat on this case, and by a majority of 4:3 concluded that the Quebec insurance provisions unjustifiably violated rights to life and security of the person protected by the Quebec Charter. On the critical issue of the application of the Canadian Charter, however, the Court was split 3:3 with Justice Deschamps choosing not to rule on this issue. Chief Justice McLachlin and Justice Major (writing...

  14. Chaoulli and the Future of Medicare

    • Arbitrariness, Randomness and the Principles of Fundamental Justice
      (pp. 505-520)

      The recent decision of the Supreme Court of Canada in the matter ofJacques Chaoulli et al v. The Attorney General of Quebec et al¹has commentators all a-twitter. Political biases shine through their reactions as beacons illuminating their inarticulate major premises.

      Many see the landmark judgment as a courageous and brilliant blow struck by the judiciary, using the Charter as a sword, not a shield, for the right of human beings to insist that the State no longer be free to deprive them of life, or to cause them pain, suffering and deterioration of their health, by rationing scarce...

    • In Search of a Mandate?
      (pp. 521-530)

      In my view, there is no better window to the future of our nation, than the manner in which we collectively deal with Medicare. How we handle the issues arising from the recurrent debates on the provision of health care provides us with a glimpse of our future together — or not! Is the federation about to become an association? Will a particular ideology prevail, despite the preponderance of evidence that its tenets are contrary to Canadiansʹ core values? Will this decision end the great social experiment known around the world as Canada? Are we seeing a disruption of our...

  15. Appendix A: The Quebec Superior Court Decision
    (pp. 531-558)
  16. Appendix B: The Quebec Court of Appeal Decision
    (pp. 559-564)
  17. Appendix C: The Supreme Court of Canada Decision
    (pp. 565-611)