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Robert Silver

The Canada Health Act is dead Add to ...

From Andrew Coyne's latest:

"Enter yet another recent development: last week's Quebec budget, with its provocative inclusion of a $25 user fee for each doctor's appointment. You can argue whether this was technically a violation of the Canada Health Act all you like: it is still extraordinary that this should have raised so little protest out of Ottawa, from either side of the House. Again, this is a sign of things to come. With the cost of health care nearing 50 per cent of provincial budgets, no federal government has any intention of withholding federal transfers in retaliation, from Quebec or any other province. The Canada Health Act is a dead letter."

Our federal leaders don't see it quite that way. Well, from the government's perspective, our "leaders" don't really have anything to say about the Quebec measure. Instead we get to rely upon Canada Health Act expert Dimitri Soudas for his interpretation:

"The Canada Health Act is the law of the land. Provinces and territories have continuously indicated they respect the Canada Health Act and obviously the federal government expects the Canada Health Act to always be respected."

Well if the provinces promise to respect the law of the land, who are we to even question whether the Quebec measures contravene said law.

For some strange reason, our federal Health Minister had an almost identical response - again, through an aide:

"Asked for a legal opinion on the province's move, Josée Bellemare, an aide to federal Health Minister Leona Aglukkaq, said in an email to The Gazette: "The Canada Health Act is the law of the land. We expect the provinces and territories to abide by the act. We have increased (fund) transfers to provinces and territories by six per cent per year so that they continue to meet the health care needs of their residents."

This once again raises the question why we even have a federal Health Minister but no matter.

Michael Ignatieff has taken an almost identical approach to this question. In his speech yesterday in Quebec, he added the following thoughts about Charest's budget:

"La semaine dernière, quand on m'a demandé ce que je pensais du budget du premier ministre Charest, j'ai rapidement reconnu qu'il agissait pour essayer de résoudre un très gros problème : celui du financement du système de santé dans un contexte de vieillissement de la population.

Il faut être ouvert à ce que les provinces puissent expérimenter, dans le cadre des grands principes de la loi canadienne sur la santé. Il faut protéger l'accès au système de santé.

Le gouvernement du Québec le sait et a indiqué qu'il allait situer sa réforme à l'intérieur des paramètres de la loi canadienne. Je salue le fait qu'il lance le débat. C'est de là que vient le progrès."

Essentially provinces should be open to experiments in healthcare so long as they conform with the "principles of the Canada Health Act." We must protect access to health care. The Quebec government knows that and they promise to respect the CHA. I salute them for starting this debate. This is how we achieve progress.

Again - Quebec says their measures are in accordance with the Canada Health Act so who are we (as federal politicians) to disagree or question them.

As a tiny aside, the federal NDP - the great creators and guardians of medicare in Canada? Not a word from Jack Layton or Thomas Mulcair on this issue. Absolute silence.

Look, I'm just a recovering lawyer and I'm certainly no expert on health law, so I have no idea what the following clauses of the Canada Health Act really mean but let me give it a shot:

User charges

19. (1) In order that a province may qualify for a full cash contribution referred to in section 5 for a fiscal year, user charges must not be permitted by the province for that fiscal year under the health care insurance plan of the province.

So I read this section that says no "user charges" are permitted if the province wants to receive full federal cash contribution as meaning the province cannot charge users fees if they want to get federal contributions for health. Again - I'm not an expert and this is complicated stuff.

But this must be one of those empty rhetoric clauses that so often get added to legislation - ones with no consequences, right?

Damn, I just read the next section of the Act:

Deduction for extra-billing

20. (2) Where a province fails to comply with the condition set out in section 19, there shall be deducted from the cash contribution to the province for a fiscal year an amount that the Minister, on the basis of information provided in accordance with the regulations, determines to have been charged in the province in respect of user charges to which section 19 applies in that fiscal year or, where information is not provided in accordance with the regulations, an amount that the Minister estimates to have been so charged.

So it's all on Leona Aglukkaq's shoulders. And of course she has no intention of actually applying the legislation she is responsible for. And you know what - I don't even really have much of a problem with what Charest did in his budget. I just think we should acknowledge that the federal government is now nothing other than an ATM machine for health in Canada with no say on how the provinces provide services.

If it is up to the provinces themselves to determine whether they are in compliance with the Canada Health Act then the legislation is a waste of time.

Maybe that's how it should be and our federal leaders are a bit behind the times.

Back to Coyne for the logical conclusion that flows from this reality that the Canada Health Act is dead:

"In which case, the transfers themselves have lost their raison d'être. If they are no longer conditional, if there are no strings attached, then all that's left is two levels of government spending the same money twice. Which means the way is clear for the feds to make the provinces an offer: in lieu of transfers, we'll hand over the equivalent tax room-tax points, in the language of fiscal federalism-whose value will grow over time."

Andrew proposes the tax points be swapped for support for Senate reform and economic union but in terms of where health care is at in Canada, this is likely the new reality.

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