September 2001
Canada's Health Care System & Section 7 of the Charter
by Andrea Karr
Much has been written about the inability of Canada's public health care system to consistently provide us with the health care services we need, when we need them. Up until now, the debate has focused primarily on the social and political merits of our present health care system, and has resulted in little apparent consensus on how to move forward. While there seems to be a consensus that our present health care system is not meeting the basic health care needs of Canadians, solutions remain elusive, in part due to the somewhat narrow view that many take of available policy alternatives (Gibson, 2000).
Specifically, Canadian politicians continue to defend health care legislation that imposes, in effect, an absolute prohibition on private financial contributions to the health care system. Such intransigence makes little sense from a policy perspective considering that Canada's growing, aging population, along with rapid technological advancements in medical care, will both continue to increase the costs of delivering medical care for the foreseeable future. Meanwhile, we continue to hear about people suffering immeasurable physical and emotional trauma waiting to receive necessary health care services. As a compassionate society, we cannot allow the status quo to continue.
One way to overcome this political inflexibility is to transfer the policy debate from the political to the legal arena, where we can conduct a debate based on logic and reason rather than emotion and political motive. While politicians appear unlikely to voluntarily change our health care legislation to allow for private contributions to the health care system, the possibility of achieving such change through a constitutional challenge is an option worth considering. Specifically, a strong argument can be made that provincial legislation that governs the delivery of health care services and provides for an effective prohibition on private payment for health care services, violates the right to life, liberty, and security of the person protected by section 7 of the Charter of Rights and Freedoms (the Charter) (Karr, 2000).
The legislation
The Hospital Insurance Act
In British Columbia, the Hospital Insurance Act governs the delivery of hospital services and provides that all of the province's residents are entitled to "general hospital services." However, this entitlement is limited if the hospital is unable to provide "suitable accommodation." The financing provisions of the Act provide for financing from the Ministry of Health, and prohibit the hospital from seeking additional payments. Thus, the availability of "general hospital services" and "suitable accommodation" depend exclusively on the level of government funding.
The Medicare Protection Act
In British Columbia, the Medicare Protection Act governs compensation for physician services. The provisions of the Act operate, both directly and indirectly, to prohibit individuals from paying for physician services outside the government established Medical Services Plan. A physician may charge a patient directly for insured services only if either the patient or the physician is not enrolled in the plan. However, the Act provides strong incentives for both the patient and physician to enroll, so that compensation for physician services virtually always takes place within the plan. The courts have recognized that, as a practical matter, virtually all health care received from British Columbia doctors is paid for exclusively under the plan (Wilson, 1998).
The combined effect of the two statutes is to create a government monopoly in health care services—a virtually unregulated monopoly, with no obligation to provide an adequate level of services to health care consumers.
Section 7 of the Charter of Rights and Freedoms
Section 7 of the Charter provides:
Everyone has the right to life, liberty, and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
A strong argument can be made that, when the services available under the publicly funded system become insufficient to meet the basic health care needs of Canadians, this legislative prohibition on private payment for health care services results in a violation of the patient's right to life, liberty, and security of the person in a manner that is not in accordance with the principles of fundamental justice. It should be emphasized here that if the government adequately finances and properly manages funds for health care, so that all who need care receive it in a timely manner, the legislative prohibition on private payment for health care services does not violate section 7 rights. However, once the level of service drops to a point where the system cannot meet the basic health care needs of Canadians in a timely fashion, the legislative restriction results in a violation of a patient's Charter rights.
Is there a Violation of Section 7 Rights?
The Right to Life
There is limited jurisprudence on the right to life guaranteed by section 7. A successful Charter challenge is more likely to engage the right to liberty or security of the person. That said, an argument can be made that the legislation also violates the right to life when failure to obtain treatment in a timely fashion results in death. However, the direct link between delay in treatment and cause of death is more difficult to establish than the direct link between delay in treatment and physical and/or emotional suffering. Therefore, this analysis will focus on how the legislation engages the right to liberty and the right to security of the person.
The Right to Liberty
The right to liberty extends beyond the traditional notion of physical liberty to protect an individual's personal autonomy over important decisions that intimately affect their private life (R. v. Morgentaler (No. 2). In determining whether a decision falls into this protected class, the courts will consider such facts as whether the decision is influenced by intimate personal considerations and whether the choice might have a determinative effect on the quality of one's life (Godbout v. Longueuil (hereinafter Godbout)). Examples of decisions falling into this protected class include a woman's decision whether to terminate a pregnancy (R. v. Morgentaler (No. 2)), a parent's decisions concerning the care of a child (New Brunswick (Minister of Health and Community Services), and an individual's decision concerning where to establish a home (Godbout). Arguably, the decision whether to acquire health care services privately when the public system is inadequate is also a protected decision. The availability of a choice with respect to whether to pay privately for health care services can have a determinative effect on the quality of one's life if it means receiving life-affecting health care services sooner. The decision is one that is informed by intimate personal considerations, as the nature and impact of any given illness or injury will vary and will influence the priority the individual places on receiving prompt medical treatment.
The Right to Security of the Person
A further argument can be made that the right to security of the person in section 7 encompasses the right to acquire health care services outside the public system when the public system fails to provice adequate service. The right to security of the person encompasses freedom from both physical and psychological state-imposed stress. When the level of services provided by the public system fails to serve basic life and livelihood needs, the legislated prohibition on private payment for health care services engages both the physical and psychological elements of the right to security of the person.
It unnecessarily prolongs the physical pain associated with the illness or injury and may also cause the symptoms to worsen and, in doing so, cause the patient serious emotional trauma. An analogy can be drawn with the decision of Morgentaler (No. 2), in which the Supreme Court of Canada held that the Criminal Code provisions outlining the administrative procedures by which a woman could obtain a legal abortion violated the woman's physical and psychological security of the person. The Court held that by creating significant administrative delays in obtaining the abortion, a woman's physical safety was threatened. Moreover, the code's provisions caused the woman to suffer psychological stress as a result of the indecision created by its procedural requirements.
Is the violation in accordance with the principles of fundamental justice?
Note that the Charter allows legislation to infringe an individual's section 7 Charter rights if it does so in a manner that is consistent with the "principles of fundamental justice." These principles are found in the "basic tenets of the legal system." They cannot be exhaustively defined and will take on new meaning as the courts address alleged violations of section 7. In Godbout, Mister Justice La Forest observed that, in determining the principles of fundamental justice, the courts are often engaged in "the more general endeavour of balancing the constitutional rights of the individual against the countervailing interests of the state." The proposed balancing process is contextual: the right asserted, the extent of the infringement, and the state interest will depend on the unique facts of each case. Mister Justice La Forest proposed a three-stage analysis: first, is the state interest sufficiently compelling to justify the infringement of the claimant's right? Second, will the means chosen to achieve the objective necessarily have the desired effect? Third, can the goal be easily pursued by less drastic means? Using this analysis, a strong argument can be made that the principles of fundamental justice are not served by an absolute prohibition on private payment for health care that deprives an individual of the opportunity of receiving medical treatment that may save them from unnecessary suffering or death.
As mentioned, the approach to defining the principles of justice is highly contextual. In this instance, the social context of the legislation is likely to influence the level of deference the courts will award to the legislature. On the one hand, Canadians consider universal medical care a defining feature of our society. It represents the importance we place on collective social security. To the extent the legislation protects these values, the courts will act with deference. However, the courts must also be mindful of the fiscal and social changes that have occurred since the Canada Health Act was introduced. The Canada Health Act was introduced at a time when the level of government spending on social programs appeared sufficient to meet the public demand for these services. Since that time, however, we have witnessed a growing gap between government spending and public demand for funding of universal medical care, a gap that will further expand as our population continues to age and medical technology continues to advance. As well, universal medical care was introduced at a time when the public had more faith in the efficacy of government spending and demographics favored wide-reaching social spending. The fiscal and social context in which medicare was built no longer exists and, to this extent, the argument for deference is weakened.
Stage 1: Is the state interest sufficiently compelling?
The state interest will be sufficiently compelling if the legislative objective is "pressing and substantial." The outcome of this test often depends upon how the courts characterize the legislative objective. The broader the objective, the more likely it is to be pressing and substantial. The disputed legislation could be characterized narrowly as the creation of a health care system in which access to care is based on need and not wealth. However, support can also be found for a broader characterization of the objective, that being the promotion of the physical and mental well-being of British Columbians. There can be little doubt that a court would find either objective pressing and substantial.
Stage 2: Will the means chosen have the desired effect?
In answering this question, the court will ask whether the legislative measures are "rationally connected" to the legislative objective. The threshold for this test is generally quite low. When stated narrowly, the measures in the legislation that prohibit private payment for health care services appear to serve the purpose of ensuring that health care services are provided on the basis of need and not wealth. However, the present lack of government funding results in a situation where all British Columbians—rich and poor—are denied access to needed health care services. To the extent that the objective of equal access to health care has become meaningless, the measures prohibiting private payment for health care are no longer rationally connected to it.
When the legislative objective is stated more broadly as the promotion
of the physical and mental well-being of British Columbians, an even stronger
argument can be made that the means are not having the desired effect.
In fact, it can be said that the means actually conflict with the stated
objective. The prohibition on private payment for health care services
prevents the expansion of the financial resource base for delivery of services,
precluding any narrowing of the gap between the demand for health care
services and the funds available to supply them. If more funds were available,
the supply of services would almost certainly rise, increasing the overall
physical and mental well-being of British Columbians. The legislative prohibition
serves to widen the gap between health care supply and demand, decreasing
the overall well-being of British Columbians and hampering the objective
of the legislation.
Stage 3: Can the goal easily be pursued through less drastic means?
There are two elements to this stage of the analysis: first, do the legislative means impair the right more than necessary to achieve the desired objective? Second, does the law have a disproportionately severe effect on those to whom it applies?
In answering the first question, the courts will not find legislation overbroad provided it rests within a range of reasonable alternatives. That said, it is significant that the legislation provides for an absolute prohibition on private payment for health care services. In other words, this is not a case of the courts attempting to override the legislature with respect to the best way to minimize an infringement of a Charter right; rather, this is a case of the courts being asked to recognize that the legislature has made absolutely no effort to minimize the infringement of a Charter right. The courts generally make it more difficult for a government to justify an absolute infringement on a Charter right, as opposed to a partial infringement. In R.J.R. MacDonald Inc. v. Canada (Attorney General), Madam Justice McLachlin (as she then was) suggested that "a full prohibition will only be constitutionally acceptable under the minimal impairment stage of the analysis where the government can show that only a full prohibition will enable it to achieve its objective" [emphasis added].
If the legislative object is stated narrowly, the government will argue that an absolute prohibition on private payments for health care is necessary to create a health care system based on need and not wealth. However, the existence of other industrialized nations that offer private systems alongside a publicly-funded system weighs heavily against this argument. In fact, outside Canada, the only other countries that prohibit all private health care payments are Cuba and North Korea. This experience suggests that it is reasonable to expect that government can offer the option of private payment for health care services while still ensuring that those with limited means have access to necessary health care services.
If the legislative goal is to ensure the physical and mental well-being of British Columbians, then the absolute prohibition clearly defeats that goal when the level of public health care service is inadequate.
Turning to the second question, the courts must balance the negative effects
of the infringement with the positive benefits associated with the legislative
goal. The assessment of the negative effects of the infringement is contextual
and must take into account the impact that reduced health care spending
has had on the system's ability to deliver care. Many patients suffer severe
pain unnecessarily, over extended periods of time. Others die needlessly.
The infringement clearly affects Charter rights in a severe and uncompromising
way. Clearly, the legislative goal— framed in either a broad or narrow
fashion—is commendable. However, when the level of service drops such that
rich and poor alike suffer needless pain, and sometimes even death, its
benefits are outweighed by the intolerable level of suffering that results
from the infringement of Charter rights.
Conclusion
Canada's health care system is not working, and Canadians are suffering, even dying, as a result. Recent infusions of government money and promises for sustained increases cannot be expected to meet current or future demands for health care. Governments must seriously consider restructuring health care legislation to provide for private payment for services. With legislators unlikely to lift current restrictions voluntarily, changes to the system may necessitate legal action, with a constitutional challenge to the current system being one option worth considering. The above analysis suggests that, when public health care is insufficient to provide Canadians with necessary health care services in a timely fashion, there is potential for a successful challenge based on section 7 of the Charter.1 While the creation of a health care system that serves everyone equally, regardless of their wealth, is truly a laudable goal, the importance of that goal is now considerably outweighed by the harm that its unqualified pursuit entails.
Notes
1 This question was put before the Quebec Superior Court in Chaoulli c.
Quebec (Procureur General) [2000] J.Q. No. 479 (C.S.) (Piche J.). A thorough
consideration of this case by the writer is pending its English translation.
References
Charter of Rights and Freedoms. Part I of the Constitution Act, 1982. Being Schedule B to the Canada Act 1982 (U.K.) 1982, c.11.
Gibson, Gordon (2000), "Politicians Tiptoe Through Health Care Politics." Fraser Forum: December.
Government of Canada (1996). "Medicare Protection Act." Revised Statutes of British Columbia, c. 286.
Government of Canada (1996). "Hospital Insurance Act." Revised Statutes of British Columbia, c. 204.
Karr, Andrea (2000), "Section 7 of the Charter: Remedy for Canada's Health Care Crisis?" Part I: The Advocate 363, 58:3 and Part II: The Advocate 531, 58:4.
Wilson v. Medical Services Commission (1988), 30. British Columbia Law Reports (2d) 1 at 14.
R. v. Morgentaler (No. 2), [1988]. 1 Supreme Court Reporter 30. Per Wilson J.
Godbout v. Longueuil (City), [1997]. 3 Supreme Court Reporter 844.
New Brunswick (Minister of Health and Community Services) v. G.(J.), 1999. Supreme Court Judgments, no. 97.
R.J.R. MacDonald Inc. v. Canada (Attorney General) [1995]. 3 Supreme Court Reporter 199 at 332.
Chaoulli c. Quebec (Procureur General) [2000]. Judgement du Quebec, no. 479 (C.S.) (Piche J.).
Andrea Karr (andreakarr@hotmail.com) graduated from the University of British Columbia with a Bachelor of Commerce (Hon.) in 1993, specializing in Industrial Relations Management. She obtained her Bachelor of Laws from UBC in 1998 and articled at the Vancouver law firm of Campney & Murphy. While studying law, she developed a special interest in health law, particularly related to the issue of timely access to health services under a government funding monopoly (monopsony). Andrea was called to the B.C. Bar in September 1999 and then moved to practice at the Vancouver office of Schiller Coutts Weiler & Gibson, a boutique labour and employment law firm. Her article, "Section 7 of the Charter: Remedy for Canada's Health Care Crisis," appeared in The Advocate as a two-part series in May and July of 2000. She now works as a consultant in the health care field, combining her dual interests in labour and health-related issues.
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