Further to today's earlier post, "Simply Shameful Medicare", here is a perspective of Quebec's Chaoulli decision written six months after the June 2005 decision was made. It provides another view from that time on the Quebec court decision, and is still a relevant reminder of what the similar McCreith/Holmes health-care charter-challenge (which, unfortunately, but not unexpectedly, was bound to happen in Ontario) is all about. The issues are still transferable today, and will all be re-hashed yet again whenever the McCreith/Holmes decision is released.
Anthony Dick wrote in "A Deficient Monopoly, Canadian health-care — nothing close to paradise", (National Review, Dec.20, 2005):
"Canada’s universal-health-care system has long been a darling of the nanny-state Left. Its stated purpose, jealously touted by swooning cohorts of compassion from coast to coast, is to provide free and equal health care for all, regardless of ability to pay.
In practice, sadly, this high-minded endeavor has hit a few snags. The pesky fetters of reality have imposed stingy budget constraints on the enterprise, while the promise of free service for all has increased the demand for treatment. The Canadian government has thus struggled to treat more patients while spending as sparingly as possible on each of them, causing waiting lists to swell and the quality of care to sag. Not helping matters have been some medical professionals, who have fled the public system in search of better compensation. With shaking heads and sullen spirits, everyone involved agrees: It’s just not fair.
Now, with a national election shaping up for the end of January, Canadians are wondering how they will finally mend their creaking structure of social justice. The nation’s politicians have worked themselves up into their usual frenzy of health-care debate. But this time, a new blip has appeared on the radar screen — in the form of Jacques Chaoulli, a 53-year-old French Canadian physician who in June won a health-care-related lawsuit against the government of Quebec. Chaoulli had alleged that the province’s regime of restrictive health-care regulations was oppressive to the point of illegality, and the Canadian Supreme Court ultimately agreed. Chaoulli’s story is interesting not only in its own right, but also for the light it sheds upon the strange politics of the country to our north (and to our left).
Before filing his lawsuit, Dr. Chaoulli had been practicing medicine in Canada for years. At one time, he was in the practice of making house calls to some of his more enfeebled patients who found it difficult to leave their homes. He had even converted his personal car into a sort of makeshift ambulance for emergency situations. “I bought a siren and got an emergency driver’s license,” he says.
But the good doctor’s intrepid spirit did not win him many friends among his fellow physicians. At the time, all doctors in Canada labored under a law that capped the amount of income a doctor could receive for his public services over a defined period of time. Because doctors were paid by the government, and the government was trying to control costs, it had set the income cap fairly low. Low enough, anyway, so that most doctors could easily reach the cap without having to expend too much energy by doing things like making house calls and working extra hours.
Many of the doctors worried that Chaoulli’s house calls were setting too hectic of an example and raising patients’ expectations too high. There were whispers that he was making them look lazy by comparison. To put an end to the problem, the medical union pushed through a new law imposing harsh financial penalties on doctors who made house calls, effectively preventing Chaoulli from continuing.
In protest against the new law, Dr. Chaoulli went on a hunger strike, undeterred by his medical knowledge of exactly what would happen to his body as he starved himself. He went on for four weeks before his supporters prevailed on him to stop, at which point he resolved that he could no longer work as a government doctor. He decided to opt out of the state health-care system, and began making private house calls for private pay.
But try as he might, Dr. Chaoulli couldn’t escape the tentacles of the state: The Canadian government, as part of its effort to maintain tight control over the country’s health-care system, had forbidden private insurance companies from paying for medical services that were also officially provided by the public system. For the patients who could not afford to pay Chaoulli for his services without the assistance of insurance, there remained little choice but to wait in the long lines that clogged the government health offices. (Private clinics were also forbidden from providing core health services, but a few black-market clinics still serviced patients who were willing to break the law to get treatment.)
Before long, Dr. Chaoulli came upon a patient who was waiting to undergo hip-replacement surgery. Already suffering from the painful immobility that his illness entailed, the patient had his plight exacerbated by his country’s oppressive blanket of regulations: With private clinics prohibited from performing hip-replacement surgeries, and private insurance companies banned from paying for such services, the patient had no choice but to take a place in the public-health-rationing line. He would have to endure his crippling condition for an indefinite period, until the state decided it could fit him into its schedule. To make matters even worse, there were concerns about the quality of the prosthetic hip replacement that awaited Dr. Chaoulli’s patient at the end of the line. It is in the nature of universal-public-health provision that quality must often take a back seat to quantity: Any cash-strapped government that tries to provide free prosthetics to all needy recipients will tend to purchase the cheapest units possible. This was exactly the situation in Canada, Chaoulli says, and patients were given no further choice about it: To guard against special treatment for “the rich,” public-health patients were prohibited from chipping in some extra cash of their own to upgrade their prosthetics.
FIGHT THE POWER
For Chaoulli, the situation had become intolerable. He and his patient filed a joint lawsuit against the government of Quebec for violating the individual rights to life, security, and liberty that were guaranteed by both the Canadian Charter and the Quebec Charter. In order to see the case through, Chaoulli agreed to pay all the costs of the litigation himself. He temporarily stopped practicing medicine and began studying law. Luckily, his generous father-in-law from Japan was able to provide financial support, but Chaoulli still had trouble paying for basic expenses such as food. Eventually, he had to send his wife and daughter away to stay with relatives outside of the country. He also lost many friends, who came to view his assault upon the public health-care system as either crazy or evil, or both.
When asked why he chose to endure such hardships to challenge the state medical monopoly, Chaoulli says matter-of-factly, “The answer is quite simple. Because I realized that a number of individuals were suffering and dying from the deficiencies of that monopoly.”
After Chaoulli lost in some lower courts, his case finally made it to the highest court in Canada. Everyone was sure that his cause was hopeless, and most Canadian legal authorities dismissed his chances out of hand. It therefore came as quite a shock when, in June, Chaoulli triumphed: In a narrow decision, the Supreme Court ruled that Quebec’s health-care regulations constituted an infringement of individual rights under the Quebec Charter, and that this infringement could not be justified on the grounds of any legitimate state purpose. “Access to a waiting list is not access to health care,” the Court proclaimed, going on to say that as long as the government was unable to provide effective health services, it had no business preventing its citizens from procuring these services through private means.
It is still unclear whether the principles of the Chaoulli case will be applied nationwide. Chaoulli himself is adamant that they will be, pointing out that the individual-rights guarantee in the Canadian Charter is similar to the one in the Quebec Charter. In addition, he notes that the Court has already decided that there is no legitimate state interest in handcuffing private health-insurance companies. Chaoulli hopes to employ the same legal reasoning in a wave of new lawsuits throughout the country, with the ultimate goal of bringing the state medical monopoly crashing to the ground. If he succeeds, he will aim to leverage his newfound fame into a business endeavor, providing brand-name accreditation for health-service providers in a competitive private market.
But Chaoulli may yet face an uphill battle, as he confronts Canada’s long love affair with state-monopolized health care. Quebec has until June 2006 to come up with innovative ways to comply with the Court’s decision in Chaoulli’s lawsuit, and many Canadian politicians are still wary of committing any market-based medical apostasy. Some public figures are starting to come around, but most still reserve the phrase “private health care” for those occasions when they declare their opposition to it. Even Conservative leader Stephen Harper, while campaigning on a platform of modest health-care reform, has been going out of his way lately to reassure voters that he has no intentions of allowing the toxic sludge of competition to seep into the picture. “There will be no private, parallel system,” he recently promised at a rally in Winnipeg.
This longstanding hostility to private health-care alternatives cannot be explained away simply by noting that most Canadians have bought into the Left’s premise that taxpayers have an obligation to pick up the hospital bills of every citizen who ever gets sick. Something further is required to explain why some Canadians think sick people should be actively prevented from using their own money to purchase health care from private companies that deliver service better and faster than the government.
Some have claimed that the emergence of private health-care alternatives would undermine Canada’s public-health system. This is quite a stretch: The public system is funded by compulsory taxation, making it impossible for new private alternatives to drain funds away.
True, some doctors might be lured away from public health-care positions into the more lucrative private sector, but this negative impact would be more than offset by the benefits of an emerging private system: The new private entities would help to reduce some of the workload faced by the public system, shortening public waitlists and alleviating budget shortfalls — thus benefiting customers of the public system.
So it’s highly unlikely that the emergence of private health care in Canada would undermine anything of value, or harm anyone at all — except, perhaps, some government workers’ unions. Yet there remains a strong ideological motive that drives the opposition to private health care: the seductive sentiment of old-school egalitarianism, which cannot countenance the possibility that some people might be able to afford better health care than others. This egalitarian disposition has been parodied by Thomas Sowell, who once remarked that if everyone woke up tomorrow twice as wealthy, some people would complain that the gap between the rich and the poor had only widened. Obsessed with the empty goal of equality, such naysayers would be blinded to the fact that everyone had in fact become better off.
Robert Nozick called this the politics of envy; it would be equally accurate to describe it as a brand of uncompromising left-wing idealism. Leftists want so badly to realize their vision of quality health care, free and equal for everyone, that they are unwilling to entertain any of the imperfect alternatives that are available in reality. In the words of Jack Layton, head of Canada’s leftist New Democratic party, “We want our health-care system to be one where it's your health-care card that gets you the health care — not your credit card.” And if the health-care card can’t get the job done? Well, then everyone will enjoy an equal share of misery.
Fairness demands it."