Feds balk at tribunal's demand that health services be approved for Indigenous children before ‘case conferencing’

The federal government will ask a court to decide whether it is reasonable that it follow the orders of the Canadian Human Rights Tribunal to process claims for health services for First Nations children within 12 to 48 hours without "case conferencing."

Although the tribunal appears to have been talking about conferencing between bureaucrats, Indigenous Affairs Minister Carolyn Bennett and Health Minister Jane Philpott say the ruling could also affect discussions between doctors.

The Ministers said in a joint statement on Friday that the requirement that the claims be processed within the tight time frame and before case conferencing could mean the children do not get the best care and that they will "seek clarity" from the Federal Court about the tribunal's order.

In some cases, processing requests for service within 12 to 48 hours without case conferencing "is entirely feasible, but in other more complex cases, consultation with health care professionals is essential to ensuring children receive the most appropriate and best care available," the ministers said. "Ensuring the best health care and social services requires teamwork with patients and family members to assess, develop a treatment plan, and make the right service arrangements."

The tribunal ruled in January of last year that Ottawa is discriminating against native children by delaying the approval of required health services while different levels of government squabble over who is going to pay the bill.

Since then, it has found on a number of occasions that the government is still not meeting the terms of what is known as Jordan's Principle, which says no child should be denied treatment while bureaucrats fight over costs.

Most recently, on May 26, a tribunal panel found the new process introduced last year by Indigenous Affairs to adhere to Jordan's Principle "still imposes delays due to exchanges among federal government departments, whether it is called case conferencing, policy review or service navigation."

The panel ordered that the government had to stop delaying health services due to case conferencing, "or any other similar administrative procedure before funding is provided."

In its original ruling in January, 2016, the tribunal found that approvals for health services have "delays inherently built into them by including a review of policy and programs, case conferencing and approvals from the Assistant Deputy Minister, before interim funding is even provided."

Jordan's Principle was named after Jordan River Anderson, a five-year-old boy from the remote Norway House Cree Nation in Manitoba who suffered from a rare muscular disorder. The doctors agreed that he could return home after spending the first two years of his life in a Winnipeg hospital. But because neither the federal nor the provincial government would agree to cover the costs of home care, he remained in the institution and died there in 2005 at the age of 5.

In its original ruling, the tribunal said: "It should be noted that the case conferencing approach was what was used in Jordan's case, sadly, without success."

Dr. Bennett said in a telephone interview on Friday that case conferencing often provides more than what was originally asked for when the health services were initially requested.

"I totally understand the people who think this is red tape or it's a delay tactic," the minister said . "But what it really is is making sure that there is no unintended consequences of an approval that was made without the context of that child and family by bringing together all the health providers who are involved in this case."

Since July 1, 2016, when the department changed its policies to meet the tribunal's original ruling, payments for 8,800 health services have been approved for First Nations children, which is more than 99 per cent of all requests, Dr. Bennett said.

But "if we removed the case conference and met the stricter time lime on the complex cases," she said, "that may not be in the best interest of the child and the family."