MICHELLE MANN:
A sacred cow no more
CBC News Viewpoint | June 9, 2005 | More from Michelle Mann
Michelle Mann is a Toronto-based consultant and freelance writer, specializing in social justice, human rights and Aboriginal issues. A lawyer with many years of practice behind her, Michelle now dedicates herself to consulting on and writing about legal, political and policy issues, particularly those with social justice implications.
Tommy Douglas, the "father" of medicare and chosen by CBC-TV viewers as the greatest Canadian in history, must surely be spinning in his grave the way some interests are spinning the Supreme Court of Canada's decision in Chaoulli v. Quebec.
Jacques Chaoulli, a Quebec doctor interested in operating private medical services, and his patient, George Zeliotis, who had spent a year on a waiting list for a hip replacement, successfully argued that the Quebec ban on buying private medical insurance for publicly available medical services ran afoul of Quebec's Charter of Human Rights and Freedoms.
Quebec's charter provides in Section 1 that "every human being has a right to life, and to personal security, inviolability and freedom." It’s similar (but not identical) to Section 7 of the Canadian Charter of Rights and Freedoms, which provides "everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice."
A majority of the Supreme Court justices who heard this case concluded that the Quebec charter had been unjustifiably infringed, with the court divided on whether there had been an infringement of the Canadian charter.
The argument essentially is that an exclusively public system must be able to deliver before it can forbid getting medical services elsewhere; otherwise it puts patients at risk; bringing charter-protected interests into play.
Which is, at first glance, pretty much what the Supreme Court appears to have said: "In sum, the prohibition on obtaining private health insurance is not constitutional where the public system fails to deliver reasonable services," the court found.
The majority pointed to widespread delay in the public health-care system, and extensive waiting lists that in the most serious cases result in death. Not to mention the physical and psychological suffering experienced by those waiting longer than they should for treatment.
Thus, the Quebec ban on private insurance was an unjustifiable infringement of Quebecers’ rights under Section 1 of their charter. As noted by Justice Minister Irwin Cotler, the decision is limited to Quebec, though it clearly indicates that public medicare won’t be treated as a sacred cow by the highest court, as it frequently is by politicians and the public.
This case sends a clear message that medicare, where exclusive, must reasonably meet the health-care needs of the public. Even the prime minister admitted as much: "Let me just say to you what today's decision does do, however, is accentuate how important it is to act immediately, how urgent this situation is," he said, pointing to the $41-billion health-care accords reached with provinces last fall and meant to combat waiting times.
And, as noted by numerous advocates for the public system, the case brought by Dr. Chaoulli and Mr. Zeliotis originated in 1997, well before these federal-provincial health-care agreements.
Ultimately, the court doesn’t appear to condemn the validity of having a public health-care system, and the Canada Health Act, with its guiding principles for the provinces of health care accessibility and universality remains law, though it may be headed for a showdown with the charter or even the division of powers in the Constitution Act.
Yet, there’s still no way of knowing what the court might do with a further Section 7 Canadian charter challenge to the public health-care monopoly.
The court was divided, even on the issue of a violation of the Quebec charter, and ultimately didn’t decide the national charter question. Due to vacancies on the bench when the case was heard, only seven, rather than nine judges decided. Add in those other two, and we might have seen a very different decision.
And, as noted by the three dissenting judges, courts are traditionally loath to stray into public policy debate that hangs at least partially on spending public money.
What of the government argument that creating a private insurance system allows the wealthy access to medical services while draining physicians from the public system, creating second-class public care?
Clearly, we must think little of our doctors if we assume that none would be interested in servicing a public system, assuming that the best would, like rats from a sinking ship, turn to for-profit care, with little regard for the wellbeing of their fellow citizens.
Regardless, the Chaoulli case is likely only the opening parry. Quebec looks poised to answer it, announcing that it will seek a stay of the court's decision while it ponders invocation of the notwithstanding clause, among other options.
Challenges to the adequacy of the entire public health-care system are likely to become more pervasive, what with opinion polls indicating that health care remains a top priority across the country and baby boomers continuing to age, generating pressures on medicare that even its founders could not have foreseen.
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