Waging war over wait times

Will Canadians win?
February 1, 2004

Belinda Stronach and Ralph Klein have declared open season on the concept of universal health care. Their timing is impeccable. In a matter of months the Supreme Court will entertain just such an argument, perhaps opening the door to permanent two-tier health care.

The upcoming Supreme Court case will test a bid to allow Canadians the right to private health care when they want it - a virtual Pizza Pizza guarantee of 30-minute delivery or it's free.

At issue: A Quebec doctor and his patient claim the provinces are violating the Charter of Rights and Freedoms by blocking access to speedy health care. The law doesn't allow extra billing or private insurance for medically necessary care, even for those Canadians who can and want to pay up front.

The patient claims to have waited too long (about a year) for the public system to provide him with a hip replacement in 1997. While he was on a waiting list, he tried to pay for private surgery in Quebec but was denied.

His doctor, Jacques Chaoulli, has long battled Canada's restrictions to private health care. In 1996, he went on a month-long hunger strike to protest restrictions on his patients' ability to pay to get access to his version of privately funded patient-centred care. His speciality was making house calls 24/7, bringing portable high-end technology such as X-ray machinery out of his medically-equipped van.

He opted out of public health care between 1996 and 1998, long enough to realize that the parallel private system, at that time, was not sufficiently lucrative on its own. It required a foundation of income: the "guaranteed" billings that come along with the public system of guaranteed access to medically necessary services. So he took the case to court.

Chaoulli's arguments for more private health care have been defeated twice, in two courts of law: the Quebec Superior Court and the Quebec Court of Appeal.

But the court of final appeal, the Supreme Court of Canada, has agreed to hear the case in June, and it is poised to become the health care court case of the decade.

The case challenges the fundamental notion behind Canada's universal medicare system: that health care should be equally accessible to everyone, regardless of ability to pay.

Chaoulli's challenge seeks to tilt the balance Canadian law currently ensures between an individual's freedom of choice and society's duty to protect all its members. The case argues that the balance as it exists is wrong, that individual rights need to be enhanced.

Cloaked in the language of freedom and choice, it asserts that patients should have the right to decide how long they are willing to wait for public health care service and have the option to access a parallel private system to pay for faster care, yielding a model similar to the one in the U.S.

What is the hallmark of health care delivery in the U.S.? It gives quickest care to those who have the most money. The focus on 'when' and the focus on 'my choice' is an American focus, regardless of whether the care is necessary, or even ultimately harmful.

That's the opposite of what Canadians said to the Romanow Commission two years ago. The focus then, as now, was on making sure everybody has access to health care, and that the care is appropriate to the person's health needs. No more and no less.

In the wake of Romanow there has been a virtual propaganda campaign focusing on wait times. Can we do better to improve wait times? You bet, but not by creating a parallel universe of private customized care. We need to devote more resources and more strategic planning in the public system to lever change. But when our entire focus is on wait times alone, the trade-offs and the costs are too great.

When the Honourable Madam Justice Ginette Piche decided the Chaoulli case in Quebec, she rejected the core remedy on offer: creating a parallel private system of care. She determined that development would threaten the viability of the publicly funded health care program in Canada. It would, in essence, undermine the system's ability to provide timely, quality public health care... for all Canadians.

"At one time many sick Canadians did not seek medical care because they had no money to pay for it," the judge wrote. "Eliminating the profit motive is the reason why Quebec's health insurance and hospital acts exist." Madam Justice Piche had it right.

The first duty of governments is to protect their citizens, and not some but all. This duty can't be achieved by buying into some version of The Price is Right.

Time and money isn't all that's at stake with the Chaoulli case. Ultimately what's on trial is the principle of universality that made Canada's public health care system the envy of many other nations. This is a critical discussion about values, a reprise of the Romanow Commission's process, minus the public input.

More heated exchanges about the nature of Medicare is now guaranteed in the light of the remarkably aggressive positions taken by Klein and Stronach. The court case simply adds gravitas, making this round of debate more conclusive.

In June, all eyes will be on the Supreme Court's deliberations. The decision will affect us all, as individuals. And it will speak volumes about the type of nation we want to be.

Armine Yalnizyan is an economist in Toronto. Dr. Robert McMurtry was Roy Romanow's chief advisor on the Royal Commission on Health and serves on the Health Council of Canada.