Here we go again. Courts are being asked: Should citizens be allowed to buy private insurance for essential medical services? Or should citizens be restricted by what public health care provides, and when?
This central question at the heart of single-tier public medicine was supposed to be before the B.C. Supreme Court this week. Instead, the provincial government discovered overlooked documents about wait times and asked for extra time.
The delay matters little. Sooner or later, the issue of private health insurance for essential services will be before the B.C. court and then, almost certainly, before the Supreme Court of Canada again.
Dr. Brian Day is a long-time advocate of private medicine and the owner of the Cambie Surgery Centre in Vancouver, which offers surgeries for patients who wish to pay. Dr. Day advertises his clinic outside the province, too, for those from elsewhere wishing to avail themselves of faster treatment than the public system can provide.
Dr. Day has brought this case to court on behalf of patients whose health, he argues, has been imperilled by long wait times. As Dr. Day told The Globe and Mail, "This is a case about patients being able to provide for their own health when the government won't provide it."
Dr. Day is wrong when he asserts that the government "won't provide" service. The issue is rather more about when. How timely will the service be? Do wait times threaten the health of those waiting? Wait times are obviously a form of rationing within the system, but at what point does a person's "right to life," a phrase from the Charter of Rights and Freedoms, become threatened by this rationing?
These questions were central to the Supreme Court's Chaoulli decision in 2005. If, as is almost certain, the B.C. case winds up back in Ottawa, will the court stand by its earlier decision? The 4-3 Chaoulli judgment found that the ban on private insurance violated the Quebec Charter of Human Rights and Freedoms. Three judges said it also violated the Canadian Charter; three judges disagreed and one expressed no opinion.
In other words, the court was conflicted 10 years ago. Its membership has changed hugely in a decade. Who knows what all the new judges appointed since 2005 might decide? And, as we have just seen in its recent assisted suicide ruling, the court is not above reversing itself by overturning previous decisions.
These B.C. and Quebec health-care cases illustrate the legalization of politics that has become such a feature of Canadian public life under the Charter of Rights and Freedoms. No issue has been more debated in Canada, and no public program has absorbed more public money (and attention) than health care. Judges might be unhappy with the results of the debates and decisions, but no one can deny that the issue has been central in Canada's politics.
And yet in the Chaoulli case, a majority dismissed the decisions of elected officials and barged into the health-care field, despite an obvious lack of expertise. Health care – its provision, organization and financing – is an essentially political issue in the broadest sense of the term, but in the age of the Charter, judges can make just about anything into a legal issue. So they did in Chaoulli, and might again when confronted with the B.C. case.
Madame Justice Marie Deschamps, writing for the majority in Chaoulli, declared about the situation in Quebec: "For many years, the government has failed to act; the situation continues to deteriorate." Much has been done since those words were written. More than $40-billion in extra funds have been spent on health care, courtesy of a federal-provincial agreement. The share of the national economy taken by health care has risen since 2005 (although it has dropped in the last two years).
Wait times in some provinces have come down. But have they come down enough to satisfy the Supreme Court, which set itself up as the arbiter of such answers in the Chaoulli case? Many more hip and knee replacements have been done, but wait times have not come down, owing to increased demand.
How long is reasonable? Should a person in distress have the right to spend his or her money to relieve pain, or must they be triaged by the state? It shouldn't be this way, but the courts will decide.