Thursday, June 09, 2005

A Quick Analysis of the Supreme Court Judgment in Chaoulli v. Quebec

Update Below

The right wing is overjoyed today:

"This is the end of medicare as we know it," said the [Canadian Taxpayers] federation's John Williamson. "This is a breach in government monopoly health care in this country."

They are falling all over themselves in the belief that the public system they hate is no more.

Well, not so fast.

As I read (and am still reading BTW, so expect updates) the judgment, this issue is not the existence of a public or private system, but of wait times:

"As I mentioned at the beginning of my reasons, no one questions the need to preserve a sound public health care system. The central question raised by the appeal is whether the prohibition is justified by the need to preserve the integrity of the public system. In this regard, when my colleagues ask whether Quebec has the power under the Constitution to discourage the establishment of a parallel health care system, I can only agree with them that it does. But that is not the issue in the appeal. The appellants do not contend that they have a constitutional right to private insurance. Rather, they contend that the waiting times violate their rights to life and security. It is the measure chosen by the government that is in issue, not Quebeckers’ need for a public health care system."[Emphasis mine]
So, from this we can see that the real issue was the waiting times for medical service rather than the "right" to private insurance. The court goes on to state that it is within the power of the province to ensure that people have access to healthcare in accordance with the Canada health Act:

"On this point, and based on the division of powers analysis in the preceding section, it is indisputable that the provincial government has jurisdiction over health care and can put mechanisms in place to ensure that all Quebeckers have access to health care."
The real issue is the wait times. Essentially the Supreme Court has ruled that wait times in Quebec, combined with the prohibition on having private insurance for publicly covered procedures, jeopardized the "right to life, and to personal security, inviolability and freedom" of Quebeckers because people are dying while waiting for procedures, or subjected to undue suffering because of wait times.

The key point is the "prohibition on having private insurance for publicly funded procedures". Only Quebec, Alberta and PEI take this measure. According to Justice Dechamps:

"Ontario (Health Care Accessibility Act, R.S.O. 1990, c. H.3, s. 2), Nova Scotia (Health Services and Insurance Act, R.S.N.S. 1989, c. 197, s. 29(2)) and Manitoba (Health Services Insurance Act, R.S.M. 1987, c. H35, s. 95(1)) prohibit non‑participating physicians from charging their patients more than what physicians receive from the public plan. In practice, there is no financial incentive to opt for the private sector. It is worth noting that Nova Scotia does not prohibit insurance contracts to cover health care obtained in the private sector. Ontario and Manitoba prohibit insurance contracts but refund amounts paid by patients to non‑participating physicians."


"Saskatchewan (Saskatchewan Medical Care Insurance Act, R.S.S. 1978, c. S‑29, s. 18(1.1)), New Brunswick (Medical Services Payment Act, R.S.N.B. 1973, c. M‑7, s. 2.01(a), and General Regulation ‑ Medical Services Payment Act, N.B. Reg. 84‑20, Sch. 2, para. n.1), and Newfoundland and Labrador (Medical Care Insurance Act, 1999, S.N.L. 1999, c. M‑5.1, s. 10(5), and Medical Care Insurance Insured Services Regulations, C.N.L.R. 21/96, s. 3) are open to the private sector. New Brunswick allows physicians to set their own fees. In Saskatchewan, this right is limited to non‑participating physicians. The cost is not refunded by the public plan, but patients may purchase insurance to cover those costs. Newfoundland and Labrador agrees to reimburse patients, up to the amount covered by the public plan, for fees paid to non‑participating physicians. In Newfoundland and Labrador, patients may subscribe to private insurance to cover the difference."

These show that the strict, absolute prohibition goes too far, but that the plans of the other provinces (other than BC, Alberta and PEI, which are identical to Quebec) do not.

So what is the real issue here? Wait times. Wait times cause by the critical and long term underfunding of the public system. It is clear from reading the judgment that had wait times been acceptable (although the court doesn't say what that is) this case would have failed or, more likely, never been launched in the first place.

We are experiencing this judgment and current difficulties in our healthcare system because of 15 years or more of underfunding by the Federal Government, under then Finance Minister and current Prime Minister Paul Martin. He was aided by demagoguess like Mike Harris. They have underfunded our system to the point that the Supreme Court has said that the wait times have violated our right to life and security. Now some of them are proposing a private system as the cure to the ills they themselves have created.

What is the solution?

"We have to strengthen the public health-care system so there is no need for a private system" - Health Minister Ujjal Dosanjh, earlier today.

In this instance I fully agree with Mr. Dosanjh. The solution is to restore the funding removed from the system and to implement the Romanow Report to elliminate the wait times. You, know, the stuff the NDP has been calling for for years?

Likely as not, what this ruling will mean in the long run is Canada will eventually have a private component to our Health Care system. The rich will be able to jump the queue. I hope we can use the example of Sweden to minimize the impact.

"Sweden does not prohibit private insurance, and the state does not refund the cost of health care paid for in the private sector. Private insurance accounts for only two percent of total health care expenditures and there are only nine private hospitals "(The Health of Canadians :– The Federal Role, at pp. 31‑33).

If Paul Martin needs an excuse to start funding our system properly here it is. Only the dramatic reduction of waiting lists will prevent actions in other provinces from succeeding.

One final note:

This judgment is not an overwhelming endorsement of private healthcare. This judgment was a 3-3 decision, with one abstention. And at the Supreme Court, a tie goes to the appellate, in this case Jacques Chaoulli and George Zeliotis.

I think the NDP has found an issue...


After having read the judgement again, and having mulled it over while laying in my dentist's chair, I am wondering if it is as bad as it seems.

Hear me out:

The Court said that the wait times have gotten so long that they were causing people to suffer and even die unnescesarily. Well, the NDP has been saying that for over 10 years. The new twist is that allowing the healthcare system to get to this level has had the affect that it was depriving Canadians of their rights to "life and personal
inviolability", which is the essentially "life liberty and security of the person" as per section 7 of the Charter. I don't think too many of us that champion the public system would disagree with that. Also, the law in question was deemed to have violated the Quebec Charter of Rights but not the Canadian Charter of Rights, because the Quebec Charter is deemed to have a wider scope than the Canadian Charter.

The Court said, based on the reading of the Quebec Charter, that because of the wait time which have gotten too long, the Quebec law forbidding private health insurance covering public service was null and void because it violated the Quebec Charter since it forbade other means of getting service and the action of forbidding private insurance could not be reasoanbly justified in a free and democratic society.

So, if waiting times were not too long, the law forbidding private insurance could be reasonably justified in a free and democratic society. The solution, for Quebec in the short term and for Canada in the long term, would be to work at ensuring that wait times are considerably shortened. For instance, George Zeliotis had to wait 1 year for a hip replacement. Would it be reasonable to shorten this wait to 6 months? 3 months? 1 month? If the wait was not too long, the court would not have found in favour of Mr. Zeliotis, as stated above.

Of course, what constitutes a reasonable wait time may depend on the ailment, but this will need to be looked into. This is the way around this to ensure the future of our single tier public health system. And this is also something the NDP has long sought. In this light, the judgment is a gift to us (and a warning to act now) and we should take it.

But let me make one thing clear for all to hear:

This is the solution that will work without invoking section 33, the notwithstanding clause. If it comes down to supporting some infusion of private health insurance or delivery or invoking the notwithstanding clause, I will support private health insurance. I will NEVER under any circumstance, for any law or programme, support the use of the notwithstanding clause. Ever.

Now that might not make me popular with some folks like Warren Kinsella, but I have my principles and I won't abandon them because something doesn't go my way.


At 2:26 PM, Blogger AJSomerset said...

Very much so ... great post.

At 2:41 PM, Blogger ricky said...

They sure have an issue. Time to put government funding flowing into private clinics back in the public system and turn back those waitlists.

At 4:13 PM, Anonymous Anonymous said...

This is an issue, but time and time again, Canadians have trusted the Liberals on this issue. I'd say they will need to mount a good attack camapaign against the Grits so that they can take control of the issue.

"The Liberals have let our system slip to the point our laws are unconsitutional" - Ok that's a bit too long and complicated for messaging, but this ruling has to be pinned on the actions of the Liberal government. For Layton to get anywhere with it.

At 4:58 PM, Anonymous Anonymous said...

Time for the NDP to step up for sure. That anyone would see this ruling as a "victory" is positively apalling. Usually I can sort of see the descent into right vs left nonsense...but not here. We all get sick. That the courts have found wait times to be in breach of Quebec's constitution is no reason to it? Even though this ruling will only have repercussions in the provinces you cite Mike, my hope is that it will give all the parties the jitters. It certainly gives the public the jitters. Now, if they will just set to work trying to outdo themselves to be the one to "save" healthcare - we'll all win. The guy/gal who makes a hasty retreat into the private sphere might as well quit politics cause Canadians will never forgive him/her. The one who tackles this with innovative ideas and drastic (yet intelligent) measures will win the big chair. Who better than the NDP to do that? This is a gift for them.

At 8:59 PM, Blogger ALW said...

Sorry to burst the bubble but "underfunding" is chronic and it's not just because of "cutbacks". Costs are skyrocketing and part of the problem is because nobody knows what anything in the system costs, because nothing has any price! I hate to beat the dead horse but it's nothing more than the classic problem you run into when you eliminate prices and costs - you destroy the signals that ensure efficiency and prevent cost overruns.

You are correct to say the ruling isn't about choice, but about waitlists; but it was a 4-3 majority striking the law down, not a 3-3 tie. The 3-3 tie is on the issue of a Charter violation, which is a more serious issue than waiting times.

At 9:39 PM, Blogger Mike said...


Sorry you are correct about the score. I meant to correct that during my update, but forgot.

And I agree that part of the problem is that costs are increasing. But the situation is that for 15 years, one Paul Martin, Minister of Finance, cut the federal contribution to healthcare, every year (even in those first few surplus years). At the same time costs went up, not in the way you imply, because people "didn't know the price", but because ACTUAL costs for equipment, drugs, supplies, energy etc went up.

Imagine getting a 5% pay cut every year while the cost of living rose 3% for 15 years (these are example numbers not real...I haven't researched it enough yet). After 15 years, if you suddenly get a 10% raise, you won't be caught up. That's where we stand right now with the Health Care system - its been bled dry we should not be surprised its where it is. I'm actually surprised we still get the quality we do. And trust me, everyone at hospitals is well aware of the costs...its not like there throwing around MRI scan requests. Hospitials in particular have been running on shoestring, scrap by, cut-corners everywhere for years (at least in Ontario, thanks to Mike Harris, who cut even more than the Feds did).

Restore the funding to 50% from the Feds like in the 80's and I don't think you'll have a problem. Do you remeber the 80's, when OHIP would actually announce it was ADDing service instead of de-listing them? Health Care worked before its guts were cut out. It can work again when the guts are restored.

At 10:18 PM, Anonymous Anonymous said...

Mike: Is your email available anywhere? I have a question for you...but I couldn't find it. If it's not published - that's fine. I just wondered if I was missing it somehow.

At 10:27 PM, Blogger Mike said...

PM - johnnycannuk sur the mail system of the famous search engine


At 12:20 AM, Anonymous Anonymous said...

An interesting post - interesting analysis - but a few points:

1. The federal government funds nothing. It is tax payers that ultimately fund anything that the federal government chooses to spend on.

2. I remember the 80's.. and 70's. If you're going to talk about that era, then you must also properly point out that for a good part of that time, doctors were allowed to extra bill in Ontario. My doctor at the time, extra billed about 5 bucks per visit. When I was a student, and on my own, I was able to negotiate with him, and he agreed to waive those extra fees for me while I was in college.

3. "Waiting" times can mean a lot of different things. A person in Toronto would likely have less waiting time for a trauma than someone in a rural area. How do you propose, under the guise of "equality," to fix that "unfairness?"

Should you:

a. Spread out the available money, so there is less to city hospitals, but more to rural area hospitals for such things as air ambulances, which means quality of care in the city will go down a bit, but "waiting times" are now more equal?

b. Fund those major centres more, where research is going on, and say "It's the fault of rural folks for not moving to the city."

c. Allow rural folk to have the option of paying out of their own pocket (or with private insurance) in order to obtain a more "equal" level of service as those in the city?

d. Some other option?

If you think that health care in the big cities is a problem, you should come visit some rural areas sometime. And then imagine a farmer, out combining wheat, and suffering a heart attack. Where's his equality in getting the required medical attention in time, similar to what a city resident would get?

At 6:07 AM, Anonymous Anonymous said...

Hi Ian:
d. - Some other option. Shift some public funding from acute/"illness" care to primary healthcare. Ensure that rural areas have access to primary care through other, more cost effective professionals (i.e. NPs, midwives...) and that tertiary/advanced care is within "acceptable" (needs definition obviously) accessibility/distance. Better primary care would mean timely monitoring of the farmer for his heart condition/diabetes/arthritis etc. Chronic illnesses are what's costing the system. Improvements in nutrition, sanitation, housing, immunization etc. have largely saved us from "disease" (cholera, smallpox...), but now we live longer with chronic conditions. Dealing with those - after diagnosis - rarely requires a physician at every stop. Make changes so that docs aren't the only gateway to the system and make maximize use of the other health professionals we have. I don't think the answer is simple under funding - it's more about maximizing the potential of all the resources within that funding.

At 8:36 AM, Blogger Mike said...


Good points, my responses:

1. True enough. And this applies to the provinces as well. So what happened was, both the feds and the provicnes kept our money which should have been spent on healthcare and spent it on "other things" - like corporate tax cuts for instance...

2. I remember the "extra billing" too. Where I lived, it rarely happened. I believe extra-billing was outlawed because some doctors were taking advantage of it. Instead of using it to cover extra expenses, they were using it to essentially extort more money out of sick people - "If you want me to operate, you have to pay me twice. Once through OHIP and once through extra-billing". Not very fair. But that stuff was minor. Wait times for operations and service in ER's was negligable because the system was funded at the proper levels. It was only starting in 93 when the money was removed from the system that wait times went through the roof...

3. If I knew how to fix the wait time dilemna, I'd be Prime Minister, or at least Minister of Health. As I said above, what is a "reasonable" wait time may vary on the ailment as well as location. Restoring the funding so there are more doctors and nurses and equipment is a good first start. Perhaps there are others. My point is, during the 80's, wait times weren't an issue like they are today, because funding kept pace.

Another poster on another blog pointed out that one of the reasons for the urban-rural discrepency is that doctors graduate with ENORMOUS debt. So in order to pay it off, they need to work where they can bill the most - big cities. Or go to the States. Fix that problem as well and we'll see amarked improvment.

The NDP has been screaming about all this stuff for years. Perhaps the governement will listen.

All in all, I think implementing the Romanow report will also help. And I am open to other creative suggestions. I mean, we could do far worse than the system in Sweden (actually, we already are!)

PM - email available in my profile.

At 7:45 PM, Blogger Politicagrll said...

The CBC says the decision doesn't affect the Charter. Is the because it was decided under the Quebec Charter of Human Rights and Freedoms?

Note: the Quebec Charter is actually quite impressive and was the first one in the country...even if i don't like this decision. From what i understand it COULD just be overruled, not that it's a long term solution (because it was written somewhat differently)

At 4:32 PM, Anonymous Anonymous said...

If someone glues a 20x14 foot mustard colored rug on your beautiful living room hardwood floor, you can't fix what has been done by putting a dinky tea tray over one tiny corner.
Corny notion, but the fact is, to switch pictures, the SC has blown a very big hole in medicare and a herd of private ventures will follow. Like Romanow said, now is the time.
Besides, tinkering with wait times is a sort of dead end. There will always be this or that to adjust in a rationing scheme and that is what we have (had). Rationing is a guarantee, since you will get the item but you will have to wait and that will affect different persons differently. Oh yeah, if you have the bucks and there is no attempt to "discourage" private insurance, you can get what you want anytime: if you can pay, if you have not had a number of claims, if you are a good risk, if the company can't find a hole in your disclosure, and so on....

At 5:47 PM, Anonymous Anonymous said...

And as for high principle and rejection of Notwithstanding, let's remember the story by G.B.Shaw, who, as a young reporter visted a GOS (Grand Old Socialist) who was on his deathbed. He was told the stories of how on many, many occasions the GOS had stood for principle when lesser men wanted particular reforms. It gradually dawned on the reporter that the GOS had, largely on his own efforts, stopped a lot if things from becoming law that would have helped a lot of people.
On his way out of the room the reporter tipped over a huge grandfather clock in the hope that shock of the noise might speed the GOS to his reward, but it did not and the GOS recovered to go on an injure a lot more people. He was very principled.
Think again about Clause 33. It is there, what better cause than these 4 uppity judges. What would Douglas Senior do?

At 5:56 PM, Blogger Mike said...


Garhane, would you care to translate that into English? Or have the nurse up your dosage.

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