There is a major question that is seldom raised by the expensive commissions that have recently examined Canadian health care. It is this: why are Canadians denied the freedom to purchase private health services and health insurance so they can safeguard their own health and that of their family members, regardless of what health services or insurance are provided by the state?
This politically incorrect question has been asked in the courtrooms of the Palais de justice in Montreal, however, the scene during the past five years of a quiet but determined constitutional challenge. The aim of the challenge is to invalidate two provisions in Quebec's health legislation that infringe upon freedom and choice and create government monopolies in health care and health insurance. The outcome may be more significant than the deliberations of Mr. Romanow and his colleagues.
The plaintiffs are Jacques Chaoulli, a young family physician who has acquired an extensive knowledge of constitutional law and court procedures, and George Zeliotis, a 70-year old salesman.
Mr Zeliotis suffered on hospital waiting lists in Montreal for nearly a year before securing pain-relieving hip surgery in 1997. While waiting, he inquired to see if he could pay to obtain private surgery to relieve his suffering, and if he could buy private health insurance in case he needed similar treatment in the future. He was appalled to discover that if his requests for private medical services and health insurance were granted, in the eyes of Canadian health legislation such action would be illegal and a penal offence for him, the surgeon, and the private insurer.
On December 9, 1997, the plaintiffs presented the Superior Court of Quebec with a Motion for Declaratory Judgment to invalidate Article 15 of the Quebec Health Insurance Act, which prohibits private health insurance for services covered by the government insurance plan, and Article 11 of the Quebec Hospital Insurance Act, which prohibits private contracting for medical services in hospitals by physicians who are non-participants in the government insurance plan. Some volunteer professionals are assisting the plaintiffs, including this author who is acting as their expert witness.
After six weeks of court proceedings, numerous witnesses, and heated arguments, Judge Ginette Piché dismissed the plaintiff's motion, with expenses, on February 25, 2000 (Chaoulli & Zeliotis c.P.G. (Québec )& P.G. (Canada), Feb. 25, 2000, Montréal, 500-05-035610-979 (C.S.)). She did, however, provide a consolation prize to the plaintiffs and to Canadian jurisprudence by declaring that the prohibition of private health insurance and medical services in hospitals by non-participating physicians did constitute an infringement on life and security, but that this conformed to the principles of fundamental justice. She added that the right to purchase a private insurance policy to cover health care, and the right to pay from one's own pocket to receive such health care in a hospital, are incidental economic rights protected by the Canadian Charter of Rights and Freedoms.
Accordingly, the state could only reach its objective of insuring "equal and adequate" access to all Quebeckers if the quasi-totality of health care resources existing in Quebec is placed at the disposal of the whole population of Quebec. Thus, the establishment of a private parallel health system would threaten the integrity, the functioning, and the viability of the public system. In an aside, Judge Piché noted that the revision of health system models is a matter for the legislators and the political order, not the courts.
In the plaintiff's appeal against this Superior Court judgment, heard on November 27, 2001, the appellants' lawyers claimed that the contested provisions in Quebec's health and hospital insurance acts were excessive. They argued that less restrictive provisions, short of prohibition, would still allow the government to meet the objective of the law, i.e., to establish a universal health insurance plan for Quebeckers, but would also safeguard the rights and freedoms of Mr. Zeliotis.
Their arguments were based on the experience of parallel and mixed health systems in continental Europe, and on Canada's unused capacity in the provincial health systems because of budget cutbacks. These arguments contradicted the claim of the federal and provincial governments that the presence of a parallel private health system would undermine the public system. On April 22, 2002, the Quebec Court of Appeal delivered its judgment and upheld the lower court's judgment of February 25, 2000, with expenses (Chaoulli & Zeliotis c.P.G. (Québec) & P.G. (Canada), April 22, 2002, Montréal, 500-09-009432-006 and 500-09-009431-008 (C.A.)).
Less than two months later, Chaoulli and Zeliotis requested leave from the Supreme Court of Canada to appeal the judgment of the Quebec Court of Appeal. At the time of writing, they are awaiting the court's reply. Several errors in law made by the Quebec Appeal Court judges form the basis of the appellants' request to be heard by the Supreme Court. These include a misinterpretation of Section 7 of the Charter relating to its protection of pure versus incidental economic rights, the latter having been infringed by section 15 of the Quebec Health Insurance Act and section 11 of the Quebec Hospital Insurance Act according to the first court's judgment. Moreover, differing interpretations of the level of threat required (real, potential, or imminent) to qualify as a section 7 infringement of the right to life, liberty and security were not taken into account in the lower court judgment.
The appellants also question the lower court's contention that the prohibitions of sections 15 and 11 represent a choice by Quebec society that cannot be questioned by the court because it is a legislative matter. Rather, the infringements found by the first court conformed to the principles of fundamental justice, and should be upheld.
Finally, the court failed to analyze the infringements in light of section 1 of the Charter of Rights, which guarantees the rights and freedoms subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
The questions of law raised by this case are of national importance; they will lead the Supreme Court to determine to what extent the state can prevent individuals from using their own resources to purchase health care when it is not available in a suitable manner in the public system.
A decision to uphold the Quebec Appeal Court's judgment would make it virtually impossible to develop a private health system in Quebec. A favourable decision for Chaoulli and Zeliotis, on the other hand, would apply to provinces with similar health and hospital insurance provisions as Quebec, and would prevent others from imposing similar prohibiting legislation.
Clearly, a judgment in favor of Chaoulli and Zeliotis will not replace or harm the publicly-funded health insurance plans. A favourable judgment would simply restore to Canadians the pluralistic public and private mix of health system, with all its advantages and choices, that all Europeans, and in fact most people of the world enjoy. This case is of great political and social importance to all Canadians; ordinary citizens as well as lawyers should watch it attentively.
J. Edwin Coffey MD is associate researcher with the MEI and co-author of Better Medicine: Reforming Canadian Health Care, and Universal Private Choice: Medicare Plus.