Friday, December 7, 2007

Courts are a patient's last line of defense against Ontario's universal health-care demagogues

Now that Ontario’s healthcare system is quietly facing a charter challenge from patients Lindsay McCreith and Shona Holmes, lefties are already squawking derisively at it as a ‘copy-cat Chaoulli’, purposefully calculated to force dreaded privatization upon unsuspecting dupes.

Of course, the fact why these patients had to go to court in the first place – because the leftie’s healthcare system didn’t deliver the care they were promised - is simply ignored.

If it is a copy cat case, then it is from the perspective that the same type of authoritarian system which infringed upon patient's rights in Quebec, is a copy of the oppressive system acting the same way in Ontario.

Tommy Douglas, from his grave, was forcing patients in all provinces to wait beyond reasonable medical thresholds for necessary treatment, in the name of some fictitious, contrived fairness.

It took a long time, but patients have begun to fight back the cancer that is Canadian single-tier monopoly healthcare. May there be a copy-cat challenge in every province and territory, but better yet, instead of forcing patients to suffer further, perhaps the remaining jurisdictions will cease to be as cruel as the Liberals in Ontario are, and begin to phase market reforms into their healthcare systems.

That would be real leadership...unlike the McGuinty Liberals, who will sit and wait for the courts to do their job, just as they sit and do nothing while patients wait, or are forced to the States, for treatment.

So, to remember the immediate zeitgeist of Chaoulli and the issues which were at stake, and the fear-mongering by the left which preceded it, I refer to this informative 'post-game' summary, “A prohibition based on fear”, from the National Post, which appeared on June 10, 2005 - just one day after Quebec’s Chaoulli decision was handed down:

“For the complete text of the court's decision, please visit
What follows is an edited excerpt from the judgment of Supreme Court Justice Marie Deschamps in the case of Chaoulli v. Quebec.

Quebecers are prohibited from taking out insurance to obtain in the private sector services that are available under Quebec's public health care plan. Is this prohibition justified by the need to preserve the integrity of the plan?

As we enter the 21st century, health care is a constant concern. The public health care system, once a source of national pride, has become the subject of frequent and sometimes bitter criticism. This appeal does not question the appropriateness of the state making health care available to all Quebecers. On the contrary, all the parties stated that they support this kind of role for the government. Rather, they submit that the delays resulting from waiting lists violate their rights under Quebec's Charter of Human Rights and Freedoms. They contest the validity of the prohibition in Quebec, as provided for in Section 15 of the province's Health Insurance Act (HEIA), and Section 11 of its Hospital Insurance Act (HOIA), on private insurance for health-care services that are available in the public system.

In essence, the question is whether Quebecers who are prepared to spend money to get access to health care that is, in practice, not accessible in the public sector because of waiting lists may be validly prevented from doing so by the state. For the reasons that follow, I find that the prohibition infringes the right to personal inviolability contained in Section 1 of the Quebec Charter.

The appellants are George Zeliotis and Jacques Chaoulli. Over the years, Mr. Zeliotis has experienced a number of health problems and has used medical services that were available in the public system, including heart surgery and a number of operations on his hip. The difficulties he encountered prompted him to speak out against waiting times in the public health-care system. Mr. Chaoulli is a physician who has tried unsuccessfully to have his home-delivered medical activities recognized and to obtain a licence to operate an independent private hospital. Mr. Zeliotis and Mr. Chaoulli joined forces to apply to the court by way of motion for a declaration that Section 15 of the HEIA and Section 11 of the HOIA are unconstitutional.

Although the federal government has express jurisdiction over certain matters relating to health, such as quarantine and the establishment and maintenance of marine hospitals, it is in practice that it imposes its views on the provincial governments in the health care sphere by means of its spending power. In order to receive federal funds, a provincial plan must conform to the principles set out in the Canada Health Act: It must be administered publicly, it must be comprehensive and universal, it must provide for portability from one province to another and it must be accessible to everyone.

These broad principles have become the hallmarks of Canadian identity. Any measure that might be perceived as compromising them has a polarizing effect on public opinion. The debate about the effectiveness of public health care has become an emotional one. The 2002 Romanow Report stated that the Canada Health Act has achieved an iconic status that makes it untouchable by politicians.

The tone adopted by my dissenting colleagues, Justices William Ian Corneil Binnie and Louis LeBel, is indicative of this type of emotional reaction. It leads them to characterize the debate as pitting rich against poor when the case is really about determining whether a specific measure is justified under either the Quebec Charter or the Canadian Charter of Rights and Freedoms.
The basis for provincial jurisdiction over health care is more clear. Two of the main legislative instruments that govern the health care system in Quebec are the HOIA and the HEIA. The HOIA establishes access to hospital services in Quebec; it also regulates hospitals. The purpose of the HEIA is to ensure that Quebecers have access to certain medical services that they need for health reasons.

Section 11 of HOIA and Section 15 of HEIA render any proposal to develop private professional services almost illusory. The prohibition on private insurance creates an obstacle that is practically insurmountable for people with average incomes. Only the very wealthy can reasonably afford to pay for entirely private services.

According to the Attorney General of Quebec, the purpose of the prohibition is to preserve the integrity of the public health care system. But the appellant Zeliotis argues that the prohibition infringes Quebecers' right to life. Some patients die as a result of long waits for treatment in the public system. Were it not for the prohibitions contained in HOIA and HEIA, they could buy private insurance and receive care in the private sector.

Not only is it common knowledge that health care in Quebec is subject to waiting times, but a number of witnesses acknowledged that the demand for health care is potentially unlimited and that waiting lists are a more or less implicit form of rationing. Waiting lists are therefore real and intentional. The witnesses also commented on the consequences of waiting times.

Dr. Daniel Doyle, a cardiovascular surgeon, testified that when a person is diagnosed with cardiovascular disease, he or she is "always sitting on a bomb" and can die at any moment. In such cases, it is inevitable that some patients will die if they have to wait for an operation. Dr. Doyle testified that the risk of mortality rises by 0.45% per month. The right to life is therefore affected by the delays that are the necessary result of waiting lists.

Dr. Eric Lenczner, an orthopedic surgeon, testified that the usual waiting time of one year for patients who require orthopedic surgery increases the risk that their injuries will become irreparable. According to Dr. Edwin Coffey, people may face a wide variety of problems while waiting. For example, a person with chronic arthritis who is waiting for a hip replacement may experience considerable pain. Dr. Lenczner also stated that many patients on non-urgent waiting lists for orthopedic surgery cannot walk or enjoy any real quality of life.

In the opinion of my dissenting colleagues, there is an internal mechanism that safeguards the public health system. According to Justices Binnie and LeBel, Quebecers may go outside the province for treatment where services are not available in Quebec. This possibility is clearly not a solution for the system's deficiencies. It is case-specific and is limited to crisis situations.
I therefore find that the trial judge did not err in finding that the prohibition on insurance for health care already insured by the state constitutes an infringement of the right to life and security.

Government involvement in Canadian health care came about gradually. Initially limited to extreme cases, such as epidemics or infectious diseases, the government's role has expanded to become a safety net that ensures that the poorest people have access to basic health care services. The enactment of the first legislation providing for universal health care was a response to a need for social justice. According to Dr. Fernand Turcotte, "it was recognized [during the 1920s] that illness had become the primary cause of impoverishment for Canadians, owing to the loss of work that almost always results from serious illness and the loss of family assets, which were inevitably swallowed up to pay for health care." Since the government passed legislation based on its view that it had to be the principal actor in the health care sphere, it is easy to understand its distrust of the private sector.

But one must question whether the prohibition on private insurance has a rational connection with the objective of preserving the public plan. Does this measure assist the state in implementing a public plan that provides high-quality health care services that are accessible to all residents of Quebec?

The arguments made in support of the position that the integrity of the public system could be jeopardized by abolishing the prohibition can be divided into two groups. The first group of arguments relates to human reactions of the various people affected by the public plan, while the second group relates to the consequences for the plan itself.

A. Human reactions

1. Some witnesses asserted that the emergence of the private sector would lead to a reduction in popular support in the long term because the people who had private insurance would no longer see any utility for the public plan. Dr. Theodore Marmor supported this argument but conceded that he had no way to verify it.

2. Some witnesses were of the opinion that the quality of care in the public plan would decline because the most influential people would no longer have any incentive to bring pressure for improvements to the plan. Dr. Marmor relied on this argument but confirmed that there is no direct evidence to support this view.

3. There would be a reduction in human resources in the public plan because many physicians and other health care professionals would leave the plan out of a motive for profit: Dr. Charles D. Wright cited a study done in the United Kingdom, but admitted that he had read only a summary and not the study itself. Although Dr. Marmor supported the assertion, he testified that there is really no way to confirm it. In his opinion, it is simply a matter of common sense.

4. An increase in the use of private health care would contribute to an increase in the supply of care for profit and lead to a decline in the professionalism and ethics of physicians working in hospitals. No study was cited in support of this opinion.

It is apparent from this summary that for each threat mentioned, no study was produced or discussed. The human reactions described by the experts, many of whom came from outside Quebec, do not appear to me to be very convincing, particularly in the context of Quebec legislation. Participation in the public plan is mandatory and there is no risk that the Quebec public will abandon the public plan. The evidence that the existence of the health care system would be jeopardized by human reactions to the emergence of a private system carries little weight.

B. Impact on the public plan

1. There would be an increase in overall health expenditures: The alleged increase would come primarily from the additional expenditures incurred by individuals who decide to take out private insurance; the rest of the increase in costs would be attributable to the cost of management of the private system by the state.

2. Insurers would reject the most acute patients, leaving the most serious cases to be covered by the public plan.

3. In a private system, physicians would tend to lengthen waiting times in the public sector in order to direct patients to the private sector from which they would derive a profit.

Once again, I am of the opinion that the reaction some witnesses described is highly unlikely in the Quebec context. First, if the increase in overall costs is primarily attributable to the individual cost of insurance, it would be difficult for the state to prevent individuals who wished to pay such costs from choosing how to manage their own finances. Furthermore, because the public plan already handles all the serious cases, I do not see how the situation could be exacerbated if that plan were relieved of the clientele with less serious health problems. Finally, Quebec's laws pre-empt the risk of doctors entering the conflicts of interest described by certain witnesses.

Upon completing her analysis of the above-listed warnings, the trial judge drew the following conclusion: "These provisions are based on the fear that the establishment of a private health care system would rob the public sector of a significant portion of the available health care resources." (Emphasis added.)

Thus, the judge's finding was based solely on the "fear" of an erosion of resources or a "threat [to] the integrity" of the system. (Emphasis added.) But the appellants did not have the burden of disproving every fear or every threat. The onus was on the province of Quebec to justify its prohibition.

Justices Binnie and LeBel rely on a similar test in asserting that private health care would likely have an impact on the public plan. This standard does not meet the requirement of the Quebec Charter.

There is other evidence in the record that might be of assistance in the analysis.

Mr. Chaoulli, echoed by at least one of the witnesses (Dr. Coffey), argued that Canada is the only OECD country to prohibit insurance for essential health care provided by physicians outside the public plan. It can be seen from the systems in these various OECD countries that a number of governments have taken measures to protect their public plans from abuse. As can be seen from these nations, there are a wide range of measures that are less drastic, and also less intrusive in relation to the protected rights. A measure as drastic as prohibiting private insurance contracts altogether appears to be neither essential nor determinative. Therefore, the choice of prohibiting private insurance contracts is not justified by the evidence.

The courts leave it to the legislatures to develop social policy. But when such social policies infringe protected rights, the courts cannot shy away from considering them. Governments have promised on numerous occasions to find a solution to the problem of waiting lists. Given the tendency to focus the debate on a sociopolitical philosophy, it seems they have lost sight of the urgency of taking concrete action. The courts are therefore the last line of defence for citizens."


Liberals have promised a lot of "social policies", including the elusive lure (socio-political experiment using human voters as unwitting subjects) of single-payer healthcare. Ontario Liberals have "lost sight of the urgency" by not taking any concrete action - the ombudsman's castigation of the McGuinty Liberal government in the "cruel game" manner they treated patient Suzanne Aucoin , was an obvious warning-shot-over-the-bow of this Grit government - which they blithely IGNORED. Even during the Oct. 2007 election campaign, Ontario Liberal MPP Jim Bradley was still trotting out the same lefty health-care fear-mongering which was presented, and refuted, in Quebec.

Sadly, the Courts are our last hope to hold these health demagogues at bay.

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