A successful Charter challenge to medicare? Policy options for Canadian provincial governments.

Colleen M Flood,Bryan Thomas

doi:10.1017/s1744133117000469

Abstract

In September 2016, a case went to trial in British Columbia that seeks to test the constitutionality of provincial laws that (1) ban private health insurance for medically necessary hospital and physician services; (2) ban extra-billing (physicians cannot charge patients more than the public tariff); and (3) require physicians to work solely for the public system or 'opt-out' and practice privately. All provinces have similar laws that have been passed to meet the requirements of federal legislation, the Canada Health Act (and thus qualify for federal funds). Consequently, a finding of unconstitutionality of one or more of these laws could have a very significant impact on the future of Canada's single-payer system ('medicare'). However, should the court find that a particular law is not in compliance with the Canadian Charter of Rights and Freedoms, the baton is then passed back to the government which may respond with other laws or policies that they believe to be constitutionally compliant. The ultimate impact of any successful Charter challenge to laws protecting medicare from privatization will thus significantly depend on how Canadian governments respond. Provincial governments could allow privatization to undercut equity and access, or they could respond creatively with new legal and policy solutions to both improve equity and access and tackle some of the problems that have long bedeviled Canadian medicare. This paper provides an understanding - grounded in comparative health systems evidence - of law and policy options available to Canadian lawmakers for limiting two-tier care in the wake of any successful challenge to existing laws. The paper presents the results of a large inter-disciplinary, comparative study, started in 2015, that systematically reviewed the legal and broader regulatory schemes used to regulate the public/private divide in 15 Organization for Economic Co-Operation and Development countries with a particular eye to what the effect of such regulations would be upon wait times.

Highlights

Across Canada, laws designed to protect public medicare are subject to court challenges on the grounds that a public monopoly on health care subjects Canadians to long wait times, infringing the right to ‘life, liberty and security of the person’, guaranteed under the Canadian Charter of Rights and Freedoms
The most prominent of these challenges, led by Cambie Surgical Services, a private clinic headed by Dr Brian Day, challenges various laws in British Columbia that prohibit physicians in the public system from extra-billing patients and moonlighting in the private sector, and prohibit private health insurance for services covered by medicare
The litigation appears temporarily stalled as the applicants allege they need more financial resources (Mulgrew, 2017), it seems likely that in the coming years, the Supreme Court of Canada (‘the Court’) will be called upon to rule on Cambie or a similar Charter challenge, setting an uncharted course for Canadian medicare

Summary

Introduction

Across Canada, laws designed to protect public medicare are subject to court challenges on the grounds that a public monopoly on health care subjects Canadians to long wait times, infringing the right to ‘life, liberty and security of the person’, guaranteed under the Canadian Charter of Rights and Freedoms.

Results

Conclusion