Fix it or Lose it?

In response to some comments on a post over at Sinister Thoughts, Greg asks whether the Chaoulli decision can be properly considered as "a challenge to the governments to 'Fix it or lose it' ". The question is a potent one, considering that the official line from the Federal Government immediately following the ruling involved a heavy emphasis on the recent financial deals to combat the very problem of waiting times. It also provides a convenient opportunity to render the key criticism of the majority's decision.

Justice Deschamps succinctly states the issue at hand in paragraph 4: "whether Quebeckers 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." [emphasis added]

For now, the decision only impacts Quebec, and might be decided differently in front of a full court. But let's assume for present purposes, however, that the opinion of McLachlin C.J. and Major J. (paras. 102-160) accurately reflects the Supreme Court's eventual position under the Charter if a challenge were to be brought in another province: Namely, that the ban on private medical insurance violates s. 7 and is not justified as a reasonable limit under s. 1. In other words, "because delays in the public system place their health and security at risk, they should be allowed to take out insurance to permit them to access private services. (para. 103)"

Essentially, the "fix it or lose it" argument runs, if governments can prove that health care is of "reasonable quality and delivered timely (para 165)" then the rationale in favour of allowing private insurance might disappear.

But on a closer reading of the McLachlin C.J. and Major J. decision, these "delays" seem to be taken for granted by the Justices as inextricable parts of the system. Lip service is indeed paid to the contemplation of a public system that delivers "reasonable services", but they have established a pretty rigid standard. Consider:

at para 114 - Dr. Lenczner also testified that 95 per cent of patients in Canada wait well over a year, and many two years, for knee replacements. While a knee replacement may seem trivial compared to the risk of death for wait-listed coronary surgery patients, which increases by 0.5 per cent per month, the harm suffered by patients awaiting replacement knees and hips is significant.

at para 117 - Studies confirm that patients with serious illnesses often experience significant anxiety and depression while on waiting lists. A 2001 study concluded that roughly 18 per cent of the estimated five million people who visited specialists for a new illness or condition reported that waiting for care adversely affected their lives. The majority suffered worry, anxiety or stress as a result. This adverse psychological impact can have a serious and profound effect on a person’s psychological integrity, and is a violation of security of the person

at para 123 - there is unchallenged evidence that in some serious cases, patients die as a result of waiting lists for public health care. Where lack of timely health care can result in death, s. 7 protection of life itself is engaged.

It is questionable whether Canada's health care system could ever guarantee to meet such a standard. Is not a public system bound to have delays of some sort? Furthermore, these Justices seem to indicate little respect for the merits of a wholly public-insurance scheme:

at para 155/156 - given the absence of evidence that the prohibition on the purchase and sale of private health insurance protects the health care system, the rational connection between the prohibition and the objective is not made out... In addition, the resulting denial of access to timely and effective medical care to those who need it is not proportionate to the beneficial effects of the prohibition on private insurance to the health system as a whole.

McLachlin C.J. and Major J. take great pains to point out the various European systems that incorporate some element of private insurance as a practical, sensible alternative. So it is possible that, regardless of public investment, the failure to make private insurance available could always be characterised as "unreasonable" to some extent. In one sense, the decision is a truly a shot across the bow aimed at politicians. But in another, it might actually be a strong message that the treasured Canadian Medicare ideal is untenable under the Charter.

Contrast this analysis with the eminently more satisfactory dissent [at least in legal terms] of Binnie and Lebel JJ. They effectively take down the majority at the outset, not because delays are acceptable, but because judges have no ability or business evaluating their acceptability:

at para. 163 - The Court recently held in Auton (Guardian ad litem
of) v. British Columbia (Attorney General), [2004] 3 S.C.R. 657, 2004 SCC 78, that the government was not required to fund the treatment of autistic children. It did not on that occasion address in constitutional terms the scope and nature of “reasonable” health services. Courts will now have to make that determination. What, then, are constitutionally required “reasonable health services”? What is treatment “within a reasonable time”? What are the benchmarks? How short a waiting list is short enough? How many MRIs does the Constitution require? The majority does not tell us. The majority lays down no manageable constitutional standard. The public cannot know, nor can judges or governments know, how much health care is “reasonable” enough to satisfy s. 7 of the Canadian Charter of Rights and Freedoms (“Canadian Charter”) and s. 1 of the Charter of Human Rights and Freedoms, R.S.Q. c. C-12 (“Quebec Charter”). It is to be hoped that we will know it when we see it.

Exactly. The majority's proposed standard remains an unintelligible smokescreen in many respects. But it will encourage further analysis and more sophisticated debate on a concept [private medical insurance] that been given little consideration due to past taboos and our proximity to the United States' privately-driven system: and this is a positive, whatever the final outcome.

But fix it or lose it? As with most things Medicare, it's hardly so simple. And the momentum from this decision - already applicable in Quebec - may be difficult to contain. Jeffrey Simpson's belief that "...Canada will have more private health-care delivery. The only questions are when, where and how much" is likely correct. So what will the reforms look like?