Public health system's delays invalid: top court
Government bans on private health insurance have increased the risk to the life and health of Canadians, the Supreme Court of Canada ruled Thursday.
In a narrow 4-3 ruling, the court said that prohibitions on private insurance are invalid since the public system has failed to deliver medical in a timely, reliable way.
The Court majority agreed with a challenge from a Quebec patient and doctor who argued that prohibiting private health insurance jeopardizes the well-being of people who desperately need treatment.
The ruling struck down Quebec laws that guarantee a virtual monopoly on medical services for the public health system, and it placed other, similar schemes in great doubt.
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”The evidence in this case shows that delays in the public health-care system are widespread, and that, in some serious cases, patients die as a result of waiting lists for public health care,” Chief Justice Beverley McLachlin and Mr. Justice Jack Major wrote on behalf of Mr. Justice Michel Bastarache.
”The evidence also demonstrates that the prohibition against private health insurance and its consequence of denying people vital health care result in physical and psychological suffering that meets a threshold test of seriousness.”
Chief Justice McLachlin said that experience of several other western democracies with public health-care systems is that allowing limited private care can provide benefits to the public.
This global track record ”refutes the government's theory that a prohibition on private health insurance is connected to maintaining quality public health care,” she said.
Madam Justice Marie Deschamps – whose concurring reasons gave Chief Justice McLachlin the majority she needed – said: ”The evidence shows that, in the case of certain surgical procedures, the delays that are the necessary result of waiting lists increase the patient's risk of mortality or the risk that his or her injuries will become irreparable.
”The evidence also shows that many patients on non-urgent waiting lists are in pain and cannot fully enjoy any real quality of life,” Judge Deschamps said. ”The right to life and to personal inviolability is therefore affected by the waiting times.”
Constitutional expert David Stratas stressed in an interview that the majority did not register disagreement with the concept of medicare.
”Far from it,” he said. ”Nor, does the decision mean that it is open season for private insurance. Government can still regulate access to private insurance and can probably regulate it in such a way that it is just a ”top-up” to be resorted to only in defined circumstances.
”It will now be up to government to go back and reassess their systems, making sure that their systems do not bar Canadians from seeking timely health care,” Mr. Stratas said. ”And the courts will be looking over their shoulders every step of the way. The Court is not dictating to government how to do it, but it is saying ”do it!”
The narrow court majority was all the more meaningful in light of the reduced court complement. (Mr. Justice Frank Iacobucci and Madam Justice Louise Arbour left over the past year.) Future challenges to the unavailability of specific medical services – litigation that is now inevitable – could go in unexpected directions, with two new judges who will have since joined the court.
A coalition of the federal and provincial governments had argued in the case that a private system would drain money and physicians from the public system, forcing those without wealth to accept second-class care.
In cautionary dissents, Mr. Justice Ian Binnie, Mr. Justice Louis Lebel and Mr. Justice Morris Fish warned that the court majority is treading where judges ought not stray.
”This issue has been the subject of protracted debate in Quebec and across Canada through several provincial and federal elections,” they said. ”The debate cannot be resolved as a matter of constitutional law by judges.”
The dissenting judges said that the Quebec legislation outlawing private health insurance was a reasonable, proportionate attempt to create a public health-care system accessible to all, while avoiding the development of a two-tiered system where wealthy have access to medical services.
They said the public policy objective that lies behind universal health care – ”health care to a reasonable standard within a reasonable time” – does not constitute a legal standard.
Nor, they said, has any societal consensus evolved as to what the phrase really means.
”It will be very difficult for those designing and implementing a health plan to predict when judges will think its provisions cross the line from what is ‘reasonable' into the forbidden territory of what is ‘unreasonable,' ” the dissenting judges warned.
They added that, considering Quebec's objective was to provide high quality, efficient health care at a reasonable cost for as many people as possible, opening the doors to private health care will not necessarily help achieve the province's goal.
”An overbuilt health system is no more in the larger public interest than a system that on occasion falls short.”
Canada's top court has struck down Quebec's bans on private health care insurance, citing an increased risk to the life and health of Canadians. 

The Supreme Court of Canada ruling looked into a patient's right to pay for faster service in a system that currently treats patients on the basis of equal access to medical care, regardless of income. 

Quebec patient George Zeliotis, a chemical salesman who waited in pain for more than a year in 1997 to have his hip replaced, said he should have had the right to pay for surgery.

Under public health care, it's forbidden to pay for services covered under the system.

Despite free medical treatment, there are often long waiting lists for operations and services with current public health care.

Together with physician, Dr. Jacques Chaoulli, Mr. Zeliotis launched a challenge to the Supreme Court of Canada, after losing their fight in Quebec's lower courts, arguing that having to wait for surgery violates a patient's constitutional right to life, liberty, and security of the person. 

Mr. Zeliotis and Dr. Chaoulli argued that being able to pay for private medical services wouldn't be detrimental to the public health care system.

The Quebec Superior Court and the Quebec Court of Appeal had dismissed the case, ruling that the provincial law's intent was not to discriminate among patients and to provide health care based on need rather than a patient's ability to pay.

The Canadian Medical Association said the Superior Court of Canada ruling could "fundamentally change the health-care system in Canada as we now know it" but declined to comment any further until it had time to study the decision.