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A case that came before the
Supreme Court of Canada on June 8 is ostensibly about two sections
of Quebec’s medicare legislation, but affidavits filed by several
parties suggest that Canada’s medicare system as a whole may be on
trial.
Chaoulli and Zeliotis v. Quebec
is an appeal of two earlier judgments in Quebec courts that upheld
the constitutionality of provincial legislation prohibiting the use
of private insurance to cover medical acts provided within the
medicare system. The claimants argue that such insurance could be
used to provide quick access to surgery, thus avoiding long queues
within the public system.
Dr. Jacques Chaoulli, a
Montreal-based GP, and George Zeliotis, a patient who had to wait to
receive hip-replacement surgery, have also challenged legislation
that prevents physicians from providing private surgical or
emergency services in publicly funded hospitals. The case, first
heard in Quebec’s Superior Court in 1999, reached Canada’s Supreme
Court 5 years later.
The list of parties granted
intervener status provides a hint of the passions the case has
created.
At one end of the spectrum are
groups like the Canadian Labour Congress, which warns that the
Quebec legislation prevents development of a two-tier health care
system. “By introducing the profit motive into the hospital
environment, the privatization of health care service delivery
creates a platform on which two-tiered delivery can flourish.”
At the other end is a coalition
of private medical clinics and other organizations whose request for
intervener status included affidavits from nine patients and
physicians affected by their inability to either receive or provide
private care within the public system.
This group is led by the
Vancouver-based Cambie Clinic, which was launched in 1996 because of
physicians’ concerns about reduced operating room access in public
hospitals. In his affidavit, orthopedic surgeon Brian Day says his
OR access in public hospitals was cut from 17 hours per week in the
early 1980s to 5 hours in 1995. Day, a clinic cofounder, said it
treats patients whose care is paid for by groups exempt from British
Columbia’s Medicare Protection Act, such as the Canadian Forces,
Workers’ Compensation Board of BC and RCMP.
“The provincial health care
system in British Columbia is similar to that in Quebec in that it
prohibits private payment for health care generally,” the coalition
argues. “As a result, subject to the exceptions mentioned above,
such as WCB referrals, ordinary citizens are denied access to
private surgeries for the treatment of illness.”
Taking a middle-of-the-road
stand are interveners like the CMA and Canadian Orthopaedic
Association (COA), which are making a joint argument that medicare
must be protected, but at the same time the status quo — such as
problems related to access to care — is unacceptable.
In his affidavit supporting the
CMA’s request for intervener status, President-Elect Albert
Schumacher says “care guarantees” may help solve problems referred
to in the Chaoulli case. “CMA believes that timely access to
medically necessary care is a fundamental health care issue and that
governments should turn their minds to the ‘care guarantee’ concept
as an option for resolving the excessive waiting time conundrum.”
In its joint presentation, says
Schumacher, the CMA and COA will present a position “which they
believe best protects the public health care system, while at the
same time recognizing that failures in that system” may represent a
breach of the Canadian Charter of Rights and Freedoms.
The presentation will also
remind the court that under section 31 of the CMA Code of Ethics,
all physicians must “recognize [their] responsibility … to promote
fair access to health care resources.” The CMA and COA will then
argue that “timeliness is an essential element of fairness.”
Another intervener is the
Senate’s Standing Committee on Social Affairs, Science and
Technology, which completed a multiphase study of Canada’s health
care system in 2002. In his affidavit, Senator Michael Kirby also
takes a middle-of-the-road approach, arguing that the committee
“strongly supports” the current single-payer system.
“However, we also recognize that
the status quo of long waiting times across the country for access
to medically necessary health care is unacceptable, as in many cases
it causes the health of the patient waiting for treatment to
deteriorate further.”
A decision following the one-day
hearing in June is not expected until 2005.
What the affidavits say
Many groups filed affidavits to
support their applications for intervener status in Chaoulli and
Zeliotis v. Quebec. Following are some unedited excerpts from some
of them and from notices of motion filed with the applications.
- “Poor people and members of the
Canadian Health Coalition have a substantial interest in the
issues before the court. … The case raises the question of
whether and in what manner sections 7 and 15 of the Charter
should be applied so as to protect and guarantee the right to
health care in Canada. It will have far-reaching implications
for disadvantaged groups that rely on courts to ensure that
their fundamental human rights are protected in health policy.”
— Charter Committee on Poverty Issues and Canadian Health
Coalition
- “In August, 2003 a $5 million
expansion of CSC [Cambie Surgery Centre] was completed resulting
in a 17,000 square foot facility that is more than double its
original size. The new facility now has six operating rooms
[OR’s], rather than three, one more than the nearby UBC
Hospital.” — Affidavit of Dr. Brian Day, Vancouver
- “In particular, we are vitally
concerned that the creation of a parallel or second tier of
health care service would seriously and adversely affect the
allocation and availability of resources within the publicly
funded system. This would happen because privately funded health
care does not exist in isolation from the public system, but
invariably relies upon staff and facilities that are also
engaged in providing publicly funded care.” — Canadian Labour
Congress
- “I am completely disillusioned
with our medical system, a system that essentially gambles with
people’s lives.” — Affidavit of Dennis Radage, cardiac patient,
Vancouver
- “CMA further believes that
Canada is well-positioned to break new ground in the
implementation of care guarantees based on Canadian experience
with the study and management of wait times.” — Affidavit of Dr.
Albert Schumacher, president-elect, CMA
- “Statistics compiled by the
Calgary Health Region offer a telling picture. In April 2000 …
there were 578 patients waiting for total knee or total hip
replacement surgery. As of December 1, 2003, the total number of
patients waiting for [this] surgery was 1,253. Moreover, on
average patients must wait nine to 10 months for their initial
consultation.” — Affidavit of Dr. Robert Hollinshead, president,
Canadian Orthopedic Association
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