"IN SEARCH OF A MANDATE?" BY ROY ROMANOW

In Search of a Mandate?

The Supreme Court’s Decision on Chaoulli v. Attorney General of Quebec

by the Honourable Roy J. Romanow P.C., O.C., Q.C.

September 16, 2005

“Access to Care, Access to Justice: The Legal Debate Over Private Health Insurance in Canada”

Faculty of Law, University of Toronto

[1] Introduction

I want to begin my remarks by thanking Colleen Flood, Kent Roach, Lorne Sossin and the Faculty of Law in the University of Toronto for organizing this very important and timely conference. They have done a wonderful job in assembling leading academics and practitioners who have a particular interest in the legal dimensions of health care policy. So, it’s indeed a great honour to share the stage with these accomplished individuals. 

Friends, let me be clear at the outset. In my view, there is no better window on the future of our nation, than the manner in which we collectively deal with medicare. How we handle the issues arising from the recurrent debates on the provision of health care provides us with a glimpse of our future together — or not! Is the federation to become an association? Will a particular ideology prevail, despite the preponderance of evidence that its tenets are contrary to Canada’s core values? Will this decision end the great social experiment known around the world as Canada? Are we seeing a disruption of our special balance between individual and community, and a movement against nation and toward enterprise?

Whatever may be the eventual answers to these questions, we are at yet another serious crossroads in both health care and its contribution to nation building, Canadian identity, and, not least, health outcomes.

As we know, this conference focuses on the legal debate concerning the role of private health care insurance in Canada, particularly in light of the Supreme Court of Canada’s majority decision of June 9, 2005, in Chaoulli v. Attorney General of Quebec.[1] Now I must admit, that based on the evidence I have examined, as well as my understanding of the fundamental principles of health policy, and my involvement in the implementation of the Canadian Charter of Rights and Freedoms, this decision came as a surprise to me. That four of the seven Supreme Court sitting justices would rule in favour of Mr. Chaoulli, a physician looking to practice privately, and Mr. Zeliotis, a patient who had to wait for a hip operation, and essentially tell the Quebec government that its ban on private health insurance was in violation of Quebec’s Charter and by clear implication the Canadian Charter, as well, was in the words of one health policy expert, “astonishing”.[2]

The Court basically said that the prohibition of private health insurance enacted by a democratically elected provincial government was bad public policy – indeed, they described it as “arbitrary”.  Despite this, according to a June 2005 Statistics Canada report, where over 80% of Canadians, including Quebeckers, are satisfied with the quality of health care they receive.[3]

This decision also touches upon a longstanding and related issue with respect to Canadian politics. Quebec has consistently held the position that the delivery of health care is an area of exclusive provincial jurisdiction. This view holds that provinces may deliver health care in the fashion they deem desirable. I do not subscribe to this view myself because I believe there is a constitutional and national role for the federal government to ensure that all Canadians in all regions have citizenship rights to equal access to medicare services. But this decision —needlessly — has fuelled further the debate about which level of government is responsible for what policies and programs in Canada.

We witnessed the Court move from deciding questions of constitutional law to matters of major public policy. Why? Were a few members of the Supreme Court in search of a mandate to venture into the world of politics? Seems so, and they did it in such a thunderous way! This remarkable level of activism on the part of the Court troubles even many of those who are sympathetic to the end result.[4]

That said, as we take a closer look at the issues arising from this somewhat startling decision, I want to suggest a touch of caution. It is my view that we need to distinguish between what the various justices have actually written and the intended or unintended permission that some proponents of private health care — high on ideology and low on evidence — have gleaned, even exploited, from this case.

[2] The Expansion of Section 7 of the Canadian Charter of Rights and Freedoms?

Section 7 of the Canadian Charter of Rights and Freedoms is well known to everyone in this audience, but at the outset of this conference it is perhaps worthwhile to restate what it says. Section 7 states: “Everyone has the right to life, liberty, and the security of person and the right to not be deprived thereof except in accordance with the principles of fundamental justice.”[5] 

Originally, the constitutional and political negotiators involved in the debate over the Charter and its entrenchment raised concerns over the meaning of this section and, in particular, the words “in accordance with the principles of fundamental justice” as revealed by section 7. To Mr. Justice Barry Strayer, representing the federal government as counsel at the time, these words would “…cover the same thing as what is called procedural due process…it…does not cover the concept of what is called substantive due process, which would impose substantive requirements as to the policy of the law in question.”[6]

Even for those who maintained their apprehensions about an entrenched Charter, this interpretation found favour. It reflected the consensus of the Constitutional negotiators. I know because I had the extraordinary experience of serving as co-chair with Jean Chretien over an extended period of time during which politicians, academics, and legal experts debated the policy, the details, implications, and proposed compromises to be recommended to the First Ministers.

One compromise was section 1, which mandated the courts to carefully balance their views with those of the elected lawmakers. It is a constitutional reminder for the courts that they need to establish an appropriate balance between the interests of the individual and society when deciding cases of this nature.

The Charter, when finally accepted by all governments except Quebec, was understood to be a constitutional vehicle that would protect our most vulnerable communities, as medicare does for those who cannot pay individually for their health care needs. Thus, as originally intended, and as court cases previous to Chaoulli have confirmed, “section 7 did not protect against economic deprivations or guarantee benefits that might enhance life, liberty or security of person.”[7]

In fact, prior to the Supreme Court’s decision on Chaoulli and even the gradual expansion of the applicability of section 7, the principles of fundamental justice were understood to reflect commitments to due process, sanctity of life, and domestic and international human rights guarantees.[8]

In the Quebec Court of Appeal’s majority decision on Chaoulli, Delisile, J. stated that, “access to medicare was a fundamental right under section 7 and it was clear that the provision of health care did not extend to a right to purchase private health insurance since it was an economic claim not fundamental to human life.”[9]

Despite this, all seven Supreme Court judges sitting on the Chaoulli court found that long waiting times in the public sector may, at least in some circumstances, engage section 7. But Justice Binnie, LeBel, and Fish, in their dissenting opinion, were not persuaded that even when waiting engaged section 7 that the principles of fundamental justice were breached.  They wrote:  “The courts can use s.7 of the Canadian Charter to pre‑empt the ongoing public debate only if the current health plan violates an established ‘principle of fundamental justice’. That is not the case here.”[10]

The net legal effect of the Chaoulli decision is that in grappling with medicare, the Court has ventured beyond constitutional and legal principles and into complex social policy, an area that has traditionally been in the domain of elected lawmakers.

I argue that the whole of the history of Section 7 jurisprudence has been marked by high sensitivity to the potentially expansive content of “security of the person” and “principles of fundamental justice.”   The constrained context in which the Court has heretofore allowed these terms to be pleaded has served to preserve a healthy separation of legislative and judicial powers.

But not here! Here, there is a loose connection between any health care condition and the idea of a constitutionally protected “security of the person.” 

Here, justice is calculated by personal preference while broader social need is ignored.

Here, the imperative of markets and consumerism defines “justice”, not the logic of responding equitably to human need and suffering.

Section 7, I can tell you with complete assurance, was not designed to expel broad social need from the forums of good government!

The implications of this decision could signal further attempts to seek major reversals to other public policies and programs. Will this lead to further attacks on the fundamental values of Canadians, which favour redistribution and social justice? As Professor John Whyte has written, “the program of state distribution has been followed by an explanatory philosophy which has explicitly explored this political behaviour in terms of the idea of justice…it is now commonplace to think of the state’s imposition of burdens and benefits as either promoting social justice or on the contrary, being fundamentally unjust.”[11] Not both.

[3] Where’s the Evidence?

There is another perplexing dimension to this decision. The majority found Quebec laws banning private health insurance to be arbitrary and they did so based on the evidence they had before them.  But the evidence they heard was not from the millions of Canadians who receive great health care from public Medicare and who, notwithstanding their concerns about its future continue to support it.

Rather the evidence they reviewed came from others for example, the Canadian Medical Association and individual physicians unhappy with the constraints of public Medicare. Granting intervener status to Senators, armed more with opinion than evidence, was odd in this regard since they have a parliamentary forum in which to argue their views. In the majority opinion, McLachlin, CJ and Major J, write, “the evidence that the existence of the health care system would be jeopardized by human reactions to the emergence of a private system carries little weight.”[12] However, we are entitled to ask on what specific evidence is this statement made. Were unsubstantiated opinions offered by some interveners taken as fact?

Let’s consider a few of the major studies that have chronicled the health care system in the United States; a system which, according to 2003 data compiled by the OECD, spends 15% of its GDP on health care. In Canada, by contrast, this figure amounts to 9.9% -- despite the fact that our vast geography and uneven demographics do us few favours in terms of economies of scale.

What’s the result? One example in a study on medical bankruptcies in the United States, which account for half of all bankruptcies in that country, Himmelstein, et al, report that in 2001, between 1.9 and 2.2 million Americans filed for bankruptcy because of medical causes.[13] Moreover, another study reveals that, in 1999, the cost of paper work for healthcare in the United States amounted to US$1059 per capita, per year while in Canada, the figure was US$307 per capita, per year.[14] These differences demonstrate the inefficiencies associated with private for-profit delivery and, more precisely, how it would impact on, in the words of some of the justices, on, in their words, “human reactions.” Why?  Simply put, single-payer systems offering universal coverage obviate the need of thousands of hours being spent designing employee health benefit plans, selecting which HMO or provider to contract with and for what basket of services, variable deductibles, eligibility of family members for benefits, the costs of signing people on- and off - benefit plans based on their employment, and on and on.  And that’s before we get to the unique challenges of insuring those who frequently change employer or who go from job to job, or who are simply too ill to work.

The implied conclusion that timely access to health care services will be improved with the establishment of a parallel private scheme flies in the face of all of the evidence with which I grappled for 18 months as Royal Commissioner. The evidence that I speak of was gathered from numerous independent studies on this particular topic and others by some of the world’s foremost experts. In addition, the evidence was gathered in round table deliberations of experts in London (UK); Paris; Washington, D.C; meetings with OECD representatives in Ottawa in 2001; through actual sight visits to hospitals and clinics both here in Canada and abroad in countries such as France and Sweden; and most importantly, from listening to thousands of Canadians about their concerns, solutions and values.

This gathering of evidence also closely examined those schemes that sought to graft the private onto the public. Today, this is described as the so-called “Third-Way,” neither public nor private, but a mixture of both. It has arisen because we are told that no one wants the American model. However, the proposed ‘Third Way’ model has been tried and found wanting.

Don’t simply take my word for it. Commenting on this particular type of health system, Ted Marmor explains that:

…the experience of private supplementary insurance in Europe is that parallel financing persistently raises questions of fairness. They are a never ending source of complaint as illustrated by the controversies over pay beds in British NHS hospitals, private insurance coverage of co-payments in France, and the exiting from the public insurance “pool” of those in Germany’s top 10 percent of income earners.[15]

Still, proponents of private delivery advocate more of it, citing European — often non-existent hybrid ― examples.

The evidence that mixing and matching private and public with respect to the payment and delivery of health care services leads to the conclusion that, based on economics, health outcomes, and fundamental values, this type of system is very unlikely to succeed. As Marmor, who has studied these models, cautions: “evaluating Canada’s ban involves matters of judgement about what is fair and less costly, not what is simply possible to do.”[16]

The key point is this: if the ultimate objective is to inject substantial change in medicare, then there needs to be evidence to justify these changes. The mantra of “more choice” is insufficient. We know that Mr. Zeliotis’ one-year wait for hip surgery was unreasonable in the eyes of the Supreme Court, yet the Court did not say what a reasonable wait time is. And, it did not say what should be a reasonable wait time in other individual cases for this procedure? What’s more, it was loudly silent on the wait times associated with the thousands of other medical procedures and treatments that exist today. 

And, whenever private pay is layered upon a public system, there has been a drift of human resources to the private side, providing timely care for the few, and making it worse for the many.

Accordingly, one may ask, does the Supreme Court of Canada now replace the professional health care providers in making these complicated determinations?

[4] Closing: Where are we Headed? Conference Thoughts

To paraphrase noted British political scientist, Richard Rose, the best answers come from the questions we ask. Although this conference has been framed in terms of considering the legal debate over access to justice and care, to me, the Chaoulli decision encompasses much broader issues. What is the political impact of this decision? How does it conform to public values? What is the effect on national unity? Will Canada be strengthened by the decision in the future?

We know that in November of this year, ardent supporters of the Chaoulli decision will meet to discuss how to expand on this decision, legally and politically, in order to develop a parallel private health care system. Yet, when I delivered my health care report, it was made clear that “Canadians embrace medicare as a public good, a national symbol and a defining aspect of their citizenship” and as such, there was little appetite for the inclusion of a parallel private system.[17] This sentiment, in fact, was expressed through an open and democratic process, which received input by Canadians from all walks of life. This indeed has to mean something. 

Predominantly, the Chaoulli decision suggests that the measure of a good health care system is centred on the amount of time that someone is on a waiting list. While this is important, I believe a values-based health care system encompasses much broader criteria.

Take, for example, the characteristics of a good and fair health care system as laid out by the World Health Organization (WHO). The WHO suggests that health consists of: (a) overall health—meaning the population is relatively healthy; (b) fair distribution of good health—meaning citizens have access to services regardless of where they happen to reside; (c) high degree of responsiveness—in terms of responding to people’s expectations; and (d) a fair distribution of health care financing — meaning that people are not excluded from receiving adequate service because they are unable to pay for it.[18] 

The wait list issue must be seen and dealt with in the context of overall reforms and health outcomes.

In sum, the Court’s decision should be a clarion call to all — practitioners, policy experts, legal experts, and especially the public and the politicians they elect --- to get on with badly needed reforms to medicare before those clamouring for its destruction gather more momentum.  That may have been what the Court intended.

Now, whether you agree or disagree with my comments, I hope one idea forms the basis of common purpose today: health care is not an economic or legal construct, but rather, a political construct informed by fundamental values. And it is this view that has given medicare its legitimacy. “We all know,” as Greg Marchildon writes, “that the demand for health care services is potentially limitless. After a protracted debate, we long ago decided, that at least for medicare services, rationing should be based upon urgency of need rather than ability to pay.”[19] The outcome of that debate signified that medicare is, in fact, a public good and not an economic commodity.

Hopefully the Court will recalibrate in this direction and that this decision was an aberration, not a move towards a broader mandate.

In closing, Martin Luther King Jr. once said: Of all the forms of inequality, injustice in health care is the most shocking and inhumane. I believe that Canadian’s overwhelmingly share this sentiment. As a result, the rumours regarding the death of medicare are greatly exaggerated. I believe Canada will find the courage to reform and sustain its most cherished social program.

Thank You!