On Saturday, the Coalition of Family Physicians of Ontario will hold its Annual Conference featuring a number of prominent speakers and a panel discussion on private vs. public health care delivery. In the first of three columns from participants in the conference, Dr. Jacques Chaoulli discusses his case for private health insurance in Quebec.
Last June, the Supreme Court of Canada ruled that, because waiting lists within the Quebec single-payer health care system caused patients undue suffering and in some cases death, the system stands in violation of our constitutional rights to life, security and liberty of a person. The decision invalidated two Quebec legislative measures prohibiting any Quebec resident from entering into a contract for private insurance in the province for services already covered under medicare.
I began arguing against Quebec’s prohibition on private insurance for health services covered under medicare in 1997. I lost the case in front of two lower courts but prevailed at the Supreme Court. The Court captured the essence of my argument when Justice Marie Deschamps wrote: « The prohibition on private insurance creates an obstacle that is practically insurmountable for people with average incomes. Only the very wealthy can reasonably afford to pay for entirely private services. » And so did Chief Justice Beverley McLachlin and Justice John C. Major (with Justice Michel Bastarache concurring), when they wrote: « It is common ground that the effect of the prohibition on insurance is to allow only the very rich, who do not need insurance, to secure private health care in order to avoid the delays in the public system. »
Out of a bench of seven, four justices struck down the Quebec prohibitions on the basis of the Quebec Charter of Human Rights and Freedoms; three of them also struck them down on the basis of the Canadian Charter. Since one of the four, Justice Deschamps, ruled only on the Quebec Charter, some legal experts have contended that the judgment shouldn’t apply to similar prohibitions in other Canadian provinces. I respectfully disagree with their opinion.
Justice Deschamps wrote that there is an equivalence between the analysis of the common good under the Quebec Charter and under the Canadian Charter. In other words, if a ban on private health insurance is not necessary in the name of the common good under the Quebec Charter, it will not be necessary under the Canadian Charter, either.
Indeed, there is no reason the standard established in the decision should not be applied nationally. In the Court’s words: « The prohibition on obtaining private health insurance … might be constitutional in circumstances where health care services are reasonable as to both quality and timeliness. » In other words, to keep the ban on private health care, a government should have to ensure that no individual’s rights are violated with undue suffering due to excessive waiting times or poor service. No provincial government in this country could deny that at least one plaintiff – and in reality, many more – has faced such suffering under their jurisdiction.
Moreover, so far as the issue of low-quality services goes, the constant advancements in expensive medical technology ensure that no state monopoly could ever provide for all its citizens the highest level of quality in health care services. As a result, a given service delivered under a monopoly by the state is likely to qualify as a low-quality service next to other services available elsewhere. Those who still believe that a government can meet the standards set for it by the Court are still using the socialist utopia thinking that inspired Quebec’s prohibition on private insurance in the 1960s.
In fact, all seven justices were unanimous in ruling that the waiting times constitute an infringement on Quebecers’ rights; the difference was that only the majority justices ruled that the government had failed to prove that the infringement was necessary in the name of the common good. The other three were prepared to accept continued suffering and death in return for maintaining a system that fits their socio-political philosophy. In their words: « It is Quebecers who have the money to afford private medical insurance … who will be the beneficiaries of the appellants’ constitutional challenge … Those who seek private health insurance are those who can afford it … They will be the more advantaged members of society. They are differentiated from the general population, not by their health problems … but by their income status … The impugned provisions were part of a system which is mindful and protective of the interests of all, not only of some. »
The problem is that, however lofty their goals, the dissenting justices failed to recognize that the government monopoly is incapable of delivering good care for all. Hence many Canadians are subjected to inferior care. And ironically, their attempts at a socialist system lead to gross inequality, with only the very rich having access to the services they need.
The acknowledgment of rights and freedoms has been a necessary step in reforming the Canadian health care system. Now, it’s time for governments to stop trying to find ways around the court’s judgment, and to move us toward a multi-payer system, which is the only way to solve the problems of waiting times, as reported by the OECD.
Jacques Chaoulli est senior fellow à l’Institut économique de Montréal.