A Case of Fundamental Justice
Health Care Delayed is Health Care Denied

Robert Hollinshead, M.D. FRCSC
President, The Canadian Orthopaedic Association
Calgary, AB

Seen in many quarters as a case that will test the constitutionality of the Canada Health Act, heres a brief recap of events so far: Quebec family physician Jacques Chaoulli refers one of his patients for hip replacement surgery. The patient learns that he will likely have to wait two years to receive the surgery. Finding the delay unacceptable, the patient attempts to purchase private health insurance to cover the costs of the operation. However, no insurance company will offer the policy because the Canada Health Act prohibits them from doing so. Dr. Chaoulli and his patient take the Quebec government to court, arguing that the governments health care insurance monopoly has unfairly infringed on the doctors ability to offer treatment and the patients right to receive care. And even though the plaintiffs give up after losing their case in provincial court and upon appeal, the Supreme Court decides in an extremely rare move to review the case on its own merits.

Much like the other provinces, the Quebec government defines what constitutes medically necessary services, pays for all insured services provided to residents of Quebec, sets out the conditions under which the insured services may be obtained outside the province, and otherwise forbids by law provision of private insurance for comparable publicly insured services. Trouble is, while the Quebec government promises in legislation to provide medically necessary care, that legislative promise doesnt extend to the timely delivery of medically necessary care.

In their factum of March 1, 2004, the CMA/COA contend that, when core treatment services cannot be delivered in a timely manner in the public system (either because of underfunding, manpower shortages, lengthy waiting lists or other factors), the states imposition of legal barriers that stop patients from gaining alternative access to needed medical care breaches Canadians charter rights to life, liberty and security of person.

The Supreme Court has already outlined a three-step process for determining a section seven Charter breach: First, consider whether the infringed individual interests fall within the meaning of the phrase, life, liberty and security of the person; next, identify the principles of fundamental justice pertinent to the case; and finally, decide whether the infringement is inconsistent with fundamental justice.

Citing different studies, reports and precedents that all conclude excessive delay for medical treatment can significantly further compromise a persons health and quality of life, the CMA/COA contend the infringement on life and security is evident. If the sole provider of medically necessary services is consistently unable to deliver treatment within a clinically reasonable timeframe, then it amounts to treatment denied. Moreover, an individuals personal decision about seeking medical care represents a fundamental decision that will affect his/her life and health. Thus, personal choice about seeking medical care should be considered a liberty interest protected under the Charter.

Timeliness is a concept integral to many aspects of fundamental justice. All aspects of health care are intrinsically linked to time prevention, diagnosis, treatment, follow up. And yet, federal and provincial governments choose not to guarantee timely access to medical care as a core principle of the social contract prescribed by the Canada Health Act. Whats more, government prohibits alternative means of access to medically necessary services. Such a stance is inconsistent with the commitments made in section 36(1) of the Constitution to promote opportunities for the well-being of Canadians and to provide essential public services of reasonable quality to all Canadians.

The CMA/COA submit that prohibiting alternative means of access, without assuming the obligation to deliver necessary medical services in a timely fashion, constitutes an arbitrary and irrational use of state power and is contrary to the principles of fundamental justice and therefore the denial of a Charter right to life, liberty and security of the person.

Its worth noting that the CMA/COAs intervention does not seek to establish an economic right (namely, to purchase private insurance for core services). Rather, the intervention focuses on the unconstitutionality of the states compelling patients to wait unreasonably long times for services by prohibiting any other recourse to overcome the delay (short of leaving Canadian jurisdiction).

Although the arguments above seem to open the door to some form of private-sector competition, the CMA/COA prefer to use the possibility as a goad to action. The submission proposes a three-year grace period during which federal and provincial governments would collaborate to achieve timely delivery of core services. Indeed, if services were delivered in timely fashion, there would be no Charter breach or denial of fundamental justice.