Doug Thomson
CEO, The Canadian Orthopaedic Association &
The Canadian Orthopaedic Foundation

Here's an all-too familiar story: A Quebec man (let's call him Patient X) is told that he will have to wait two years to receive the hip replacement his family physician, Dr. Chaoulli, says he needs. Finding the delay unacceptable, Patient X buys himself private health insurance to cover the costs of the surgery. His doctor refers him to the local clinic, which refuses to provide service, citing the prohibitions of the Canada Health Act.  

Now here's where the story takes an unpredictable turn: Outraged by his inability to receive necessary care, Patient X and Dr. Chaoulli take the Quebec government to court, arguing that the government's health-care insurance monopoly for core services had unfairly infringed on the doctor's ability to offer treatment and the patient's right to receive care.

Government lawyers won the case in both lower and higher Québec provincial courts. The Supreme Court of Canada decided to review the case, and what has been described "as the health-care court-case of the decade" is set to start this December.

The case is expected to attract many parties seeking to argue the constitutionality of a privately funded second-tier of medicine (or the unconstitutionality of single-tier health care). And, indeed, the appeal may become a test case for forcing a revision of the Canada Health Act. However, some legal experts suspect that the Supreme Court's interest in this case stems from it's unease about the lower-court rulings, which may have set the precedent that government is not responsible for timely delivery of care, despite its being the sole source of operating funds and personal coverage for core services. If so, then government's degree of due diligence would be virtually unaccountable to taxpayers and consumers.

In his parliamentary report on health care, Senator Michael Kirby argued that government should be required to offer care guarantees, which is really another way of saying: 'timely delivery of service'. And that's why, after receiving several legal opinions, the COA is considering applying for intervener status. We believe we can add a new perspective to the debate, outlining the problems and recommending solutions. The latter will be a first test of the COA membership's ability to reach a consensus about what should be done.

Given the profession's need to have such pressing issues as waiting times and access to ORs addressed, a presentation to the Supreme Court would be a very high-profile way to have the COA's key messages placed on the public record and would carry considerable weight in the wider court of public opinion.

Of course, such an undertaking is immensely labour-intensive and would normally cost hundreds of thousands of dollars. For example, the translation expenses, alone, would be in excess of $25,000. As of this writing, we are working on an agreement with the Canadian Medical Association, which will provide its constitutional lawyers pro bono to do the research and preparation. We are also seeking other partners to help with the financial burden of this initiative.

The next step will be to seek approval from the COA Board of Directors to carry on with this initiative. We'll keep you posted.