One Year After Chaoulli - uncertainty and clinical gridlock

Douglas C. Thomson, CEO
Canadian Orthopaedic Association

Dennis Jeanes
Special to the Canadian Orthopaedic Association

It’s been a little more than a year since Canada’s Supreme Court upset the proverbial applecart with its historic decision in the Chaoulli case. The Supreme Court determined that Canadians have a fundamental right to timely delivery of health services - and that the Quebec government’s failure to do so voided its monopoly on health care insurance, because it violated a citizen’s right to security of person.

Quebec was given a year to respond before the judgment came into full effect, which meant either substantially improving timely delivery of care (an impossibility) or making provisions to introduce into the province private health insurance (and by extension, more private health care).

At the time, champions of private medicine in Canada heralded the decision as a precedent-setting triumph of reason over blind faith. Dr. Chaoulli was briefly the talk of the town, and his name is now in the history and law books. For their part, defenders of the public health care system decried the decision and predicted creeping encroachment by a second tier of private medicine catering to the wealthy.

A year later, the Harper Conservatives are in power in Ottawa, committed to the Canada Health Act and care guarantees; Quebec Premier Jean Charest has also played the care-guarantee card and opened the door slightly to private delivery of hip and knee arthroplasty among other services; whereas Alberta Premier Ralph Klein unveiled his “Third Way” and went a step further by proposing limited dual practice.

“There has been more talk than action,” says COA Past-President Dr. Robert B. (Bob) Hollinshead. “Quebec’s formal response, in terms of an expected huge increase in private services, hasn’t come to pass and isn’t likely to in the near future.” And while Hollinshead recalls that during Wait Time Alliance meetings last summer Klein seemed very pleased with the Chaoulli decision and saw it as a positive precedent, the Third Way is nevertheless “a fairly limited response. So far, Klein has really only talked about cataract surgery and hip and knee surgery. There’s a lot of discussion about what the regulations might be for those doctors who would be involved in public and private delivery.”

COA Past-President, Dr. Alain Jodoin with CMA Past-President Albert Schumacher address the media after the Chaoulli ruling last year.

Any uncertainty about the proposal is not likely to be resolved until the Alberta Conservatives elect a new leader: front-runner Jim Dinning has publicly expressed doubts about dual practice, while darkhorse candidate Preston Manning is on record as saying a mix of public and private health care is inevitable. Meanwhile, Prime Minister Harper has duly stated his misgivings about dual practice in a letter to Premier Klein, who says he is calculating whether Alberta can afford possible penalties for breaking the Canada Health Act.

For the time being, the most immediate impact of the Chaoulli decision seems to be the First Ministers’ 2004 Health Accord, which in effect anticipated the decision and tried to buttress the failing public health care system with a robust, predictable cash flow and designated funding for reducing wait times. “I think if the Chaoulli case hadn’t been in the pipeline,” says Hollinshead, “the First Ministers conference wouldn’t have resulted in the initiative in the five priority areas. We wouldn’t have seen the increased activity in hips and knees across Canada. However, many of these initiatives are running on a year-to-year basis, and unfortunately they haven’t spread to other disciplines within orthpaedics and, indeed, not to other disciplines in medicine outside the five targeted areas.”

There’s good reason for concern, according to Dr. Michael J. Goytan, director of the Winnipeg Spine Programme at the city’s Health Sciences Centre. Overwhelmed by patient demand, he and his colleague Dr. Michael G. Johnson proposed to Manitoba’s ministry of health a multi-disciplinary screening clinic that could care for the nine out of 10 spine patients who don’t need surgery - thereby significantly reducing wait time for consultation. Despite the fact that they have some 2000 patients on their waiting lists for consultation, Goytan says, “the plan was just thrown away. We’ve been left by the wayside, basically.” And he suspects it was largely because hip and knee arthroplasty has become such a hot-button issue that it precludes all others.

Dr. Alastair S.E. Younger, director of the BC Foot and Ankle Clinic at Vancouver’s St. Paul’s Hospital, has also tried to convince hospital administration of the necessity of instituting a screening clinic and has also experienced similar frustration: “What a lot of general practitioners need is a foot and ankle medicine consult, but there’s nowhere for them to turn to get it.” Despite having three specialist surgeons at the Clinic (one of the highest concentrations of foot surgeons in the country), “we’re all overloaded,” says Younger. “We’re almost all at three years’ wait time for consultation.” Aside from institutional indifference, the other confounding factor is the increased incentive to do hips and knees as a result of the 2004 Health Accord: “The change in resource has had tremendous impact at our end of the world. It’s taken general orthopaedic surgeons away from doing some foot and ankle to doing practically none. And so those patients are trying to get in to see us. We’ve had to block the list. We simply can’t see them. We’re totally and utterly inundated.” Worse still, says Younger, such a massive wait list is a significant financial drain: “I may spend about $50,000 out of my practice income just managing the wait list because I have to employ two secretaries, one of whom spends her entire time on the telephone telling people that we can’t look after them.”

Such hopeless clinical gridlock as Goytan and Younger are experiencing certainly make private practice an attractive alternative, and Younger admits there have been days when he’s contemplated a jump to the relatively benign world of servicing Worker’s Compensation and other private patients who would otherwise add their numbers to an already unmanageable situation. Indeed, even though Goytan could never move his practice to the private sphere, he would “support a private option in order to free up some of those health care dollars for patient groups, such as spine or paediatrics, who depend on the public system.”

It’s worth noting that Alberta’s 2006-07 health budget will apply the lessons learned from the highly successful Alberta Hip and Knee Replacement Project, with its emphasis on accurate screening and working to optimal standards, to other clinical areas such as breast cancer care, coronary artery bypass surgery, MRIs and CT scans, as well as prostate cancer care. While he admires the Project’s work, calling it “a breath of fresh air,” Bob Hollinshead feels it’s no panacea: “I think the new efficiencies, central intake, optimizing pre-op management, smoothing the patient pathway as much as possible are all important things to do, but I still maintain the health human resources - orthopaedic surgeons, nurses and others - and infrastructure are the keys to improving access to care in Canada for bone and joint patients.”

Currently Hollinshead is part of a CMA taskforce examining the public/private medicine debate and notes that the group is moving toward developing different scenarios: “We have some clear policy principles that I think can help to inform the public and guide the profession with regard to a public/private mix. Ultimately, we might even give some comfort to the nay-sayers about the role of private health care in Canada.”

If anything can be said about the first anniversary of the Chaoulli decision, it’s that talking about private medicine in Canada is no longer a taboo topic, and the debate may have significantly advanced by its second anniversary. Certainly the CMA will be tracking closely any shifts in public opinion as the public discussion expands beyond learned circles to everyday Canadians. Says Hollinshead: “I think the COA could do the country a great service by informing the public. The COA needs to step up to the plate and not only react to public policy shifts but also try to provide some direction to public policy.”

Please note that the Alberta government decided not to proceed with the ’Third Way’ subsequent to the completion of the article – Ed.