Publicly insured healthcare in Canada, also known as Medicare, is currently being reviewed in a judicial case in the Supreme Court of British Columbia. The lawsuit filed by Cambie Surgery Centre is calling for allowing “medically necessary services” – those covered by public insurance – to be privately insured in order to improve access to care. Health services researchers, policy makers and citizens alike, are worried of the outcome of this 8-month provincial trial, as it is suggested that an outcome in favour of Cambie’s position would lead to a complete overhaul of Canada’s public healthcare system. In the midst of heated debates, we tend to forget that just over a decade ago, a similar legal battle challenging the extent of public insurance in Canada occurred in the province of Quebec. How are these two cases similar or different? What are the implications of each? What are lessons that can be learnt?
The 2005 Chaoulli vs. Quebec case centered on the claims of two individuals: a doctor and a patient. The doctor was Dr. Jacques Chaoulli who wanted to provide care for medically necessary services in both the private and public systems, which was illegal under the Quebec Health Insurance Act and the Hospital Insurance Act. The patient, George Zeliotis, who had been put on lengthy wait lists for major surgeries, was an advocate for wait time reductions through privately insured care. Together, they challenged these provincial provisions that prohibited private insurance for publicly insured medical services, on the grounds that the wait times that ensued represented an infringement to the quality of life of patients, as outlined in the Quebec Charter of Human Rights and Freedoms. The plaintiffs’ claims were granted at the provincial level, but the Supreme Court of Canada however, did not recognize these provincial laws as an infringement of the rights ensured in the Canadian Charter of Rights and Freedoms, precluding effects on the rest of Canada (Labrie 2015). As such, the outcome permitted private insurance coverage for certain medically necessary services, specifically for hip, knee, and cataract surgery, if the public system failed to deliver timely care to patients in Quebec.
Fast forward 10 years, and we are now witnessing the Cambie Surgery Centre case, where Dr. Brian Day of the private surgery clinic in Vancouver is challenging British Columbia’s ban on the purchase of private insurance for medically necessary services. The plaintiffs are hoping to also strike down key provisions of public healthcare, specifically the prohibitions on extra billing on behalf of doctors and on doctors of offering services in both private and public systems. Here as well, the Canadian Charter of Rights and Freedoms is being invoked to address the diminishing quality of life of patients who are caught on lengthy wait lists (Labrie 2015). The outcome has yet to be determined since the trial begun in September 2016, but it has been suggested that if the Supreme Court of Canada rules in favour the Cambie Surgery Centre, there could be a dismantling of the public healthcare system.
Lessons Learnt and Implications for Healthcare in Canada
Looking back to the Chaoulli case, the outcome ultimately only touched the province of Quebec. On the contrary, the Cambie case could have Canada-wide repercussions if the Supreme Court of Canada, the jurisdictional level which failed in the Chaoulli case, rules in favour of Cambie. The comparison between these two cases serves as a reminder of the jurisdictional nature of Canada’s public healthcare system: it is impossible to speak of simply one Canadian healthcare system as Canada does not have one unique system, but rather 13, with 10 provinces and 3 territories ensuring the delivery and the funding of most care with jurisdictional tax revenue. The institutional specificities on the provision of care therefore differ across provinces and territories, as is evidenced by the outcomes of the Chaoulli case.
We can also consider the interests at play in each case, specifically those of doctors who want the possibility to set fees for their services and practice in both private and public settings, and those of patients who want to have access to care with private insurance. We see, for example, how the outcome of the Chaoulli case was favorable for patients, rather than to providers: following the verdict, doctors could not practice in both systems, but patients were allowed to receive certain medically necessary services with private insurance. A similar outcome could also occur with the Cambie if only certain claims are addressed and struck down, and thus not implying a complete overhaul of the public healthcare system. Such an outcome could lead perhaps to provincial healthcare systems resembling European systems as seen in the Netherlands and Germany, which function on a mixed model of private and public insurance to take pressure off of a loaded public system (The Commonwealth Fund 2016). Although the idea of freeing the public system for faster access to care through private insurance seems compelling, questions of equity and quality of care would however come into play. Considerations on the specific scope of the claims and interests in each case, enables us to consider their implications.
Changes to Canada’s publicly insured healthcare system are expected. It is interesting to turn to these legal cases to reflect on key elements defining Canada’s healthcare system, such as institutions and interests, when considering reforms to Canada’s healthcare system as we know it.
Barua, B. (2015). Waiting Your Turn: Wait Times for Health Care in Canada, 2015 Report. Fraser Institute.
The Commonwealth Fund (2016). International Profiles of Health Stystems.
Labrie, Y. (2016). Le monopole public de la santé au banc des accusés: les contestations judiciaires visant à changer les politiques de santé au Canada. Institut économique de Montréal. November 2015.
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