The Canada Health Act is not an obstacle to mixed medical practice

Can doctors provide care to patients in the private sector without first having to opt out of the public plan?

Last year, the government of Alberta passed legislation to allow them to do just that, and began rolling out the initiative this June. (Quebec may soon do the same, with two party leaders in their provincial election proposing to introduce mixed practice to the province.)

What’s new about Alberta’s mixed practice approach is that it allows doctors to work additional hours in a private clinic, without having to cancel their enrollment in the public health insurance plan. It is due to this prohibition that Quebecers often see headlines about doctors periodically moving back and forth between the public healthcare system and the private sector.

In an interview for the Toronto Star in August, federal health minister Marjorie Michel said she was “very concerned” following Alberta’s move, stating that the practice may violate the spirit of the Canada Health Act.

But the minister is mistaken, and it’s important to understand why.

First of all, the Canada Health Act does not explicitly prohibit any practices. Rather, it governs the conditions required for provincial healthcare systems to receive their full share of federal health funding.

Nowhere in the legislation is there mention of preventing a physician from working in both the public and private sectors. Rather, prohibitions against dual practice are imposed by provincial laws or administrative procedures.

This is clearly demonstrated by the fact that there are four provinces that have never forbidden mixed practice. Even before Alberta expressly authorized it, Manitoba, Nova Scotia, Prince Edward Island, and Newfoundland and Labrador implicitly allowed it, with no prohibition against it in their legislation. This does not prevent them from receiving the funding they are due.

In fact, if a province like Quebec decided to emulate Alberta and introduce mixed practice, it is not the federal law that would have to change, but provincial provisions. This was proved in 2003 analysis by MEI, based on a legal opinion from the firm Trudel & Johnson. Twenty-three years later, the federal laws governing this matter have not been changed.

Mixed practice respects the Canada Health Act insofar as the care provided in the private sector is excluded from public insurance, but remains free of charge for patients when it is provided in the government-run system. This protects its universality.

Our study concluded that mixed practice respects the Canada Health Act insofar as the care provided in the private sector is excluded from public insurance, but remains free of charge for patients when it is provided in the government-run system. This protects its universality.

In other words, in order to respect the funding conditions stipulated in the Canada Health Act, a doctor could not simultaneously bill both the patient and the government for the same procedure. For example a patient could not go to a public hospital receiving government funding to undergo a surgery from a surgeon receiving government funding, and then pay, $3,000 out of pocket in order to be treated faster than other patients. However, the patient could receive the very same surgery at a medical facility that doesn’t receive government funding and from a surgeon who, at the time of the surgery, is also not receiving any government funding for performing the specific surgery.It is dual funding that would pose a problem, not dual practice.

The question that remains is why a province should allow doctors this additional flexibility in their practice.

The answer is that it is a proven way of increasing their healthcare system’s treatment capacity, which means increasing the number of patients who can receive the care they need in a given period of time.

Even though mixed practice might be seen as new in Canada, it is far from being a novelty internationally. Indeed, among the six countries that ranked ahead of Canada overall in the Commonwealth Fund’s 2024 comparison, none prohibits mixed practice.

A study looking at the number of hours worked by doctors in Denmark—a country whose social-democratic values can hardly be questioned—concluded there was no statistically significant difference between the number of hours worked in public hospitals by doctors in mixed practice compared to doctors working strictly in the public sector. The same is true for their number of hours of overtime and their number of hours on call. The difference is that physicians in mixed practice add an average of 5.2 hours a week working in the private sector, on top of their hours already worked in the public system.

These five additional hours worked represent extra time spent operating, treating, diagnosing, and answering patients’ questions, compared to working solely in the public sector.

The cumulative addition of extra hours worked by numerous doctors, following reforms in numerous provinces, would be a de facto equivalent of adding “new doctors” to the healthcare system as a whole, no matter what the naysayers will say.

Mixed practice in Alberta will help shorten waiting lists in both the public and the private sectors. Let’s hope for the sake of Canadian patients that premiers across the country take note of this measure that has been proven to work around the world.

Michel Kelly-Gagnon is Founding President of the MEI. The views reflected in this opinion piece are his own.