Health Care

Canadian Federalism and Public Health Care: The Evolution of Federal-Provincial Relations

Jay Makarenko — Wed, 30 Jan 2008 11:15:18 -0700

One of the most critical issues in Canadian federalism since the 1950s has been the delivery of public health care. This article provides an introduction to the nature and evolution of federal and provincial relations in the area of health care policy, with particular focus on the fiscal and policy aspects and their impact. Included is a discussion of the basic division of powers in health care, Canadian federalism and the introduction of public health care, and shifts in this federal-provincial relationship since the 1950s.

Division of Powers and Health Care Policy in Canada

An overview of federal-provincial constitutional powers in the area of health care

Canadian Federalism and the Introduction of Public Health Care

Federal-provincial relations and the creation of the public health care system

Canadian Federalism and Public Health Care 1970-2000

Federal-provincial relations and public health care over three decades

Recent Trends in Canadian Federalism and Public Health Care

Shifts in federal-provincial relations in public health care between 1999 and 2004

Sources and Links to Further Information

List of article sources and links to more on this topic

Division of Powers and Health Care in Canada

An overview of federal-provincial constitutional powers in the area of health care

The Constitution, Federalism, and Health Care

The Canadian Constitution is the premier political institution in Canada. It sets out the basic structure and functions of government. Central to the Constitution is the establishment of a federal system in Canada, where there are two autonomous orders or levels of government: the federal (national) government and the provincial (regional) governments. The Constitution provides these different levels of government with their own constitutional powers and jurisdictions. As such, the Constitution, and its system of federalism, plays a central role in the context of health care policy; the Constitution established the role and powers of each level of government in creating and administering key elements of Canada’s health care system.

For more information on the Constitution and Federalism in Canada:

Mapleleafweb: The Canadian Constitution: Introduction to Canada’s Constitutional Framework

Provincial Powers in the Area of Health Care

Under the Constitution, the provincial level of government is granted the majority of legislative power in the area of health care. Section 92(7) of the Constitution Act, 1867 grants the provinces exclusive authority over the “establishment, maintenance, and management of hospitals, asylums, charities, and eleemosynary institutions in and for the province, other than marine hospitals” (Department of Justice Canada, Constitution Acts 1867 to 1982). In other words, only the provinces, not the federal government, may pass laws regarding the creation and administration of hospitals and mental health facilities.

Canada’s modern health care system, however, involves much more than simply the establishment and operation of hospitals. In response to this, the courts have interpreted the provincial power over hospitals in a very broad manner, extending provincial legislative authority to almost all areas of health care delivery. This includes areas such as health care insurance regulation, the distribution of prescription drugs, and the training, licencing and terms of employment for health care professionals, such as dentists, doctors, and nurses. This judicial interpretation has resulted in provincial dominance in the area of health care, at least with respect to the power to create laws concerning how health care is delivered to the majority of Canadians.

Federal Powers in the Area of Health Care

While the provinces enjoy the majority of legislative authority in health care, the federal government nevertheless has some important powers which enable it to play an important role in the development and implementation of health care policy.

First, the federal government is constitutionally empowered to legislate in select areas of health care, including marine hospitals, quarantines, and the oversight of food, pharmaceutical, and medical device safety. The federal government is also constitutionally responsible for health care delivery to certain groups in Canadian society that fall exclusively within the federal jurisdiction. This includes First Nations peoples living on reserves, the Inuit, serving members and eligible veterans of the Canadian Forces, members of the Royal Canadian Mounted Police (RCMP), inmates in federal penitentiaries, and refugee protection claimants.

Furthermore, the Peace, Order and Good Government section of the Constitution Act, 1867 (commonly referred to as the “POGG clause”)grants the federal government the power to legislate in areas outside its normal jurisdiction in times of national emergency. In the context of health care, this would include the power to legislate whenever health issues affect the nation as a whole or becomes a problem beyond a province’s ability to deal with it, such as in the event of a widespread epidemic. Under such circumstances, the federal government may assume control over health care delivery temporarily.

One of the federal government’s most important health-related powers, however, is its spending power. This refers to the constitutional right of a government to spend money in areas outside its normal constitutional jurisdiction. This spending power is available to both levels of government. It is, however, a much more powerful tool in the hands of the federal government, as Ottawa typically has a sufficient fiscal capacity to spend in its own areas of jurisdiction, as well as those of the provinces. Most provincial governments, by contrast, do not enjoy the same financial ability.

This spending power represents a key lever for the federal government as a means of exercising authority over the provinces and, indirectly, influencing health care policy. Each year, the federal government gives the provinces billions of dollars to support the delivery of provincial health services and programs. In so doing, the federal government regularly places conditions on the provinces in conjunction with this funding. It may require the provinces to spend the money on certain health services or programs, or to deliver health care according to specific federal standards and objectives. A province may, of course, refuse the federal funding and the conditions that come with it. However, most provinces are highly dependent upon Ottawa for health care funding dollars and simply cannot afford to forgo these funds.

Territories, Cities, and Health Care

Constitutionally speaking, neither territories nor cities have any powers in the area of health care. This is because neither is granted autonomy under the Canadian Constitution. Territories fall under the jurisdiction of the federal government and are creations of federal legislation; cities are under provincial jurisdiction and owe their existence to provincial legislation.

Even though the territories do not have any constitutional powers over health care, they nevertheless have control over the delivery of health care services for their own residents. This is because the federal government has provided territorial governments with powers and responsibilities similar to those held by the provinces (although, these powers are recognized only in federal legislation and not in the Constitution). Like their provincial counterparts, the territories oversee the creation and regulation of hospitals and other health-related facilities; distribution of prescription drugs; and the management of training, licencing, and terms of employment for health care professionals. While the federal government does not intervene directly in the health policy of the territories, it does exercise considerable influence through the financial transfer of funding, as it does with the provinces.

In the past, municipalities in Canada have played a large role in health care. Indeed, at one time, in some provinces, municipalities were charged with the responsibility for creating, funding, and administering hospitals. Since the introduction of public health care, however, the role of cities has been reduced considerably. Today, most hospitals are operated by provincial governments or health boards created and controlled by provincial governments. Nevertheless, some municipalities, especially in large urban cities, will deliver limited health services and programs, either independently or in cooperation with their respective provincial governments.

Canadian Federalism and the Introduction of Public Health Care

Federal-provincial relations and the creation of the public health care system

Early Health Care in Canada

Canada’s early health care system was drastically different than it is today. Prior to the 1940s, health care services were predominantly provided by private or charity hospitals and clinics. Canadians, generally, paid for their health care services, either directly, through charitable donations, or private forms of health insurance. Health care professionals, such as doctors, primarily operated as private businesses, either independently or in association with a particular hospital or clinic. There tended to be very little direct government involvement in health care delivery, although this did vary from province to province.

Introduction of Provincial Hospital Care Plans

Beginning in the late 1940s, Canadian health care began to take on aspects of its modern public form. In 1947, the Government of Saskatchewan, helmed by Premier Tommy Douglas, introduced the first universal hospital care plan. Under this plan, the provincial government assumed hospital-related costs for its residents. The government financed the plan through a combination of annual health premiums charged to residents and general provincial revenues. By 1949, Alberta and British Columbia had also introduced similar hospital care plans for their residents.

In 1957, the federal government became directly involved in public health care through passage of the Hospital Insurance and Diagnostic Services Act. This federal legislation committed the Government of Canada to financing 50 percent of the cost of provincial hospital care. In addition to providing federal funding for pre-existing plans in Saskatchewan, British Columbia, and Alberta, the federal government used the Act to negotiate publicly-funded hospital care plans in the remaining provinces. By 1961, agreements were in place with all provinces, providing hospital care coverage across Canada.

Introduction of Nationwide Medicare

The introduction of provincial hospital care plans meant that Canadians were covered for those medical services received within hospitals. This coverage, however, did not extend to the services of physicians received outside hospitals. The majority of Canadians, instead, were required to pay for these services, either directly, through private insurance schemes, or through non-universal public plans.

In 1962, the Government of Saskatchewan introduced universal coverage for physician services delivered outside of hospitals. Under the plan, physicians billed the government directly for the services they provided to their patients. Doctors, however, were free to practice outside the public system, and to charge higher fees than those reimbursed by the government (a practice called “extra billing”).

In 1966, the federal government introduced the Medical Care Act. Under this legislation, it committed to sharing costs with the provinces for all physician services, regardless of whether they were provided in a hospital. Moreover, the Act stipulated certain criteria which a province would have to meet in order to gain this federal funding.

The Act required that a province’s health plan be administered by a non-profit government agency (or some agency accountable to government); provide coverage for all medically necessary services rendered by a physician or surgeon; be universally available to all provincial residents on equal terms and conditions; and provide portability of benefits when the insured resident was temporarily outside of the province. Moreover, the Act stipulated that insured services were to be provided in a manner that did not preclude reasonable access to those services due to either direct or indirect charges. This limited the provinces’ discretion in charging health care premiums or to allow user fees and extra-billing by hospitals and doctors.

The federal government used the Medical Care Act as the basis for negotiating a nationwide public health care plan with the provinces (this nationwide system is commonly referred to as “Medicare”). By 1972, each province had established its own system of free access to medical services. While these provincial systems were framed by the basic conditions set out in the federal Act, there nevertheless existed significant differences from one province to another. Each province set up its own system of publicly administering hospitals. Moreover, there existed significant differences in terms of the services covered from province to province, as well as how each government paid for its public system. Some provinces, for example, introduced health premiums (annual payments made by individuals to the government to cover some of the costs of health care services). Other provinces paid for their public health plans exclusively through general tax revenues.

The introduction of national Medicare established the federal government as key player in health care policy. Under the Medical Care Act, the federal government committed to paying a significant portion of the costs associated with provincial Medicare plans (provided they met the criteria set out in the Act). During the period immediately following the introduction of Medicare, the federal government committed to paying one-half of whatever the provinces spent on health care coverage. Not only was the federal government a financial partner in public health care, but it was also able to indirectly influence provincial policy in this area through the conditions it attached to federal health funding under the Medical Care Act.

Federal-Provincial Inter-relationship in Public Health Care

Canada’s system of federalism had a significant influence on the manner in which public health care was instituted in Canada. Legislative authority for health care falls predominately within the hands of the provinces. As a result, Canada did not create a national health care system, at least in the sense of being centrally administered and completely uniform across the country. Instead, Canada’s public health care system is constituted by set of provincial regimes, which were instituted at different times and administered in different manners by their respective provincial governments.

Nevertheless, today, Canada’s public health care system can be considered ‘national’ in two important senses: a) through the use of its spending power, the federal government was able to encourage the implementation of some form of public health care across the entire country; b) as a financial partner in health care delivery, the federal government has been able to ensure basic criteria for the operation of these different provincial health care systems. While Canadians do not enjoy exactly the same public health care plans from coast to coast, provincial systems are uniform in terms of being publicly administered, relatively comprehensive, universal, portable, and without significant financial or other barriers to access.

Canadian Federalism and Public Health Care 1970-2000

Federal-provincial relations and public health care over three decades

The period between the 1950s and 1970s saw the federal and provincial governments put into place the basic framework for public health care in Canada. The decades that followed, however, saw increasing levels of tension and animosity between the two levels of government over public health care policy. This was due in large part to two main factors. The first were changes in federal funding to provincial health care plans, which saw the federal government withdraw from its earlier commitment to cover one-half of whatever the provinces spent. The second was the enforcement of federal criteria on how the provinces could operate their health plans.

Changes to Federal Health Care Funding

With the introduction of Medicare, the federal government committed to funding one-half of any provincial health care program which met the criteria set out in the Medical Care Act (see previous section). In the 1970s, however, the federal government became concerned over the rapidly escalating costs of social services, such as Medicare, and its ability to continue covering half of whatever the provinces spent.

As a result, in 1977, the federal government changed the nature of federal funding for public health care. It removed the detailed conditions placed on the provinces in order to receive federal monies. Provinces were no longer required to meet the criteria first established in the Medical Care Act. In return, the federal government announced that it would no longer pay one-half of the provincial program costs. It would, instead, only increase its funding to the provinces by a certain annual percentage – which would not necessarily cover one-half of the overall costs.

The 1980s and 1990s saw, again, a tightening of federal funding for health care, this time due to efforts by the federal government to control ballooning budget deficits. The most substantial development in the health care funding equation came in 1995, when the federal government introduced the Canada Health and Social Transfer (CHST). Previously, most federal funding for provincial social programs came in the form of Established Program Funding (for post-secondary education and health insurance) and a program called the Canada Assistance Plan (social assistance and welfare services). With the creation of the CHST, however, these federal transfers were merged into one block grant with few conditions on how the provinces spent the money.

Under the CHST, the Government of Canada reduced its overall financial transfers to the provinces. The CHST also altered the very nature of these transfers. Previously, many federal commitments, such as those dealing with provincial health care plans, were supported through cash payments to the provinces. Under the CHST, however, there was a greater reliance on tax point transfers for funding. Tax point transfers (better known as tax points) involve a reduction (or capping), by the federal government, of its taxation levels in order to provide additional ‘room’ for the provinces and territories. Accordingly, provincial/territorial governments are able to increase the amount of tax they charge to citizens and, in turn, raise new revenues to support their social programs.

These changes under the CHST had serious consequences for the provinces and their public health care systems. This was particularly true in have-not provinces – those that were highly dependent on federal cash transfers in order to pay for their health care plans. Not only were these provinces faced with reductions in overall federal transfers, but the shift to a greater reliance on tax points also posed challenges. With weaker tax bases, have-not provinces tended to benefit more from the transfer of dollars than from tax points. Consequently, many provinces faced a fiscal crunch due to rising health care costs and a reduction in the federal contribution to help offset those costs.

The result of these changes to federal funding: the provinces and territories were required to bear a greater share of the costs for social programs, such as Medicare. This resulted in a high level of animosity between the two levels of government, with the provinces regularly arguing that the federal government was not contributing its fair share to Canada’s public health care system.

Introduction of the Canada Health Act, 1984

Another important development to occur during this period was the introduction of the Canada Health Act in 1984. Originally, the federal government regulated the basic framework of provincial health care plans through the criteria outlined in the Medical Care Act. Following its 1977 decision to stop paying for one-half of health care costs, however, the federal government announced it would no longer place any conditions on federal funding in support of health care. As such, the provinces were free to administer their health care plans as they deemed fit.

This led to the introduction of a number of controversial measures by some provinces during the late 1970s and early 1980s, particularly user fees and extra-billing. User fees refer to the charges a patient is billed for specific medical services, such as a hospital visit; extra-billing (or double-billing) involves a practice where doctors charge patients fees for services in addition to seeking reimbursement for the provision of those services from the provincial government.

In response, the federal government introduced the Canada Health Act in 1984. The legislation re-established conditions that the provinces would have to follow in order to receive federal health care funds. Central to the Act was the prohibition of user fees and extra-billing, and the establishment of five basic criteria deemed essential for the operation of provincial health care services. These criteria closely matched those first introduced under the 1966 Medical Care Act, and required provincial plans be: publicly administered (administered by a public agency); comprehensive (cover all medically necessary services); universal (cover all provincial residents); portable (ensuring continued coverage when persons are temporarily outside of their home province); and accessible (reasonable access to health services without financial or other barriers).

For more information on the Canada Health Act:

Mapleleafweb: The Canada Health Act: Provisions & Administration

Additionally, the Canada Health Act included a penalty regime, under which the federal government would hold back funding to those provinces that failed to meet any of the Act’s criteria. While not widely used, this penalty regime has been applied in several instances. Immediately following the Act’s introduction in 1984, the federal government announced it would be applying penalties to those provinces that permitted user fees and extra-billing (the federal government later released the money it had held back, but only once the provinces had eliminated these practices). In the 1990s, the federal government applied the penalties on several occasions, mostly when provinces permitted the application of user fees in private medical clinics.

From the perspective of the federal government, the introduction of the Canada Health Act was an important instrument to maintaining certain national standards in public health care. From the perspective of the provinces, however, the federal action was viewed as an encroachment on provincial authority and jurisdiction. This concern was magnified, moreover, by the fact that the federal government had significantly, and unilaterally, reduced its financial commitment to provincial public health care plans.

Recent Trends in Canadian Federalism and Public Health Care

Shifts in federal-provincial relations and public health care between 1999 and 2004

Towards the end of the 1990s, tensions between the federal and provincial governments in the area of public health care were high. Yet another shift in the nature of federal-provincial relations would take place – influenced largely by the fact that the federal government had restored order to its fiscal house, bringing its budget deficits under control, and posting larger and larger annual surpluses. Moreover, the federal government showed signs it was willing to constrain use of its spending powers in areas of provincial jurisdiction, and work with the provinces to address health care-related issues.

1999 Social Union Framework Agreement

The first significant change came in 1999, when the federal government, provinces (except Quebec), and territories signed the Social Union Framework Agreement (SUFA). SUFA provides a framework through which the two levels of government can collaborate on Canada-wide priorities and objectives in the area of social programs.

For more information on the Social Union Framework:

Government of Canada: Social Union

Central to this framework were several key commitments by both levels of government. The provinces and territories agreed to eliminate residency-based policies that constrained access to social programs for migrants, and to use funds transferred from the federal government for agreed-upon purposes – which included health care policy. In return, the federal government agreed to limit the use of its spending powers by, for example, consulting with provincial and territorial governments prior to renewing or altering existing social transfers; not introducing new social programs funded through intergovernmental transfers without the agreement of a majority of provincial governments; and providing prior notification before introducing new Canada-wide social programs funded through direct transfers to individuals. The first two of these commitments are highly relevant to health care, as they require that the federal government work with the provinces and territories before making significant changes to the basic funding or framework of the public health care system.

In addition to its commitments under SUFA, the Government of Canada also announced a multi-billion dollar increase in transfers to the provinces in the 1999 federal budget. This increase was intended to alleviate some of the financial burden on the provinces vis-à-vis the rising costs of social programs, including health care.

2002 Romanow Commission on Health Care

Another key development in this story on health care policy: the Royal Commission on the Future of Health Care, headed by former Saskatchewan premier Roy Romanow. Formed in 2001, the Commission’s mandate was to review federal, provincial, and territorial policies in health care and recommend possible measures for reform. The Commission’s final report, tabled in November 2002, comprised 47 detailed recommendations, touching on a wide range of health care-related issues. Central to the Commission’s report was the recommendation that Canada should continue to pursue a public health care system where the cost of medical services was covered by governments.

In the broader federalist context, the Commission recommended significant changes to federal-provincial/territorial relations within the realm of health care policy. Generally speaking, the Commission suggested a collaborative relationship between the levels of government – a relationship where each level of government was an equal partner in the public health care policy. Additionally, the Commission recommended enacting a Health Covenant which would have set out a national vision and framework for public health care, and be binding on all governments. It also recommended that a Health Council of Canada be created, with the goal of fostering collaboration between levels of government.

The Commission also recommended dramatic changes to federal financial support of provincial health care plans. This included creating a new federal transfer, which would solely target health care. (At the time, federal transfers for health care were lumped together with monies for other social programs under the Canadian Health and Social Transfer.) The Commission suggested this new transfer be cash-only, rather than consisting of a combination of cash and tax transfer points. Finally, the Commission recommended the federal government increase its share of federal funding for health care to a minimum of 25 percent of provincial/territorial costs. This represented an increase over existing federal funding levels at the time, but was still significantly lower than the 50 percent promised by the federal government when Medicare was first introduced.

Another Commission recommendation: the broadening of Canada’s public health care system to include uniform national coverage for prescription drugs. This included the introduction of provincial/territorial drug plans, which would be paid for, in part, by a new federal ‘Catastrophic Drug Transfer.’

For more information on the Romanow Commission:

Mapleleafweb: Romanow Commission on the Future of Health in Canada: Findings and Recommendations

2003 Accord on Health Care Renewal

While the Romanow Commission’s report was not binding on any of the governments, some of its recommendations were enacted through subsequent federal-provincial/territorial agreements on health care. The first of these was the Accord on Health Care Renewal, agreed to by all governments in 2003. The Accord constituted an action plan to improve timely access to quality health care for all Canadians. Under this plan, the federal government committed $34.8 billion dollars in additional funding for health care over the five-year period from 2003-04 to 2007-08. In 2004, the federal government added an additional $2 billion, bringing the total to $36.8 billion over the five-year period.

In addition to this increase in federal funding, the Accord also led to several other key initiatives. Under the Accord, governments created the Health Council to monitor and make public reports on the Accord’s implementation. The federal government also split the Canada Health and Social Transfer into two block grants: the Canada Health Transfer (CHT) and the Canada Social Transfer (CST). The objective in this division was to enhance transparency and accountability, both with respect to the amount of money transferred by the federal government for health care and how that money was spent by the provinces and territories.

As part of this Accord, the governments committed to ensuring Canadians would have reasonable access to catastrophic drug coverage by the end of 2005-06, with part of the $36.8 billion in new funding to be committed to new provincial drug plans. As of December 2007, however, little action had been taken on establishing national catastrophic drug coverage.

For more information on the 2003 Accord on Health Care Renewal:

Government of Canada: 2003 First Ministers’ Meeting on Health Care Renewal

2004 Agreement on the Future of Health Care

A year later, federal, provincial, and territorial governments agreed to a new 10-year plan to sustain the public health care system. Under the agreement, the federal government committed to provide an additional $18 billion to the provinces and territories over the next six years for health care. The federal government also guaranteed a 6 percent annual increase in federal health transfers after that until 2015. According to the federal government, this amounted to $41 billion in new funding over 10 years. This new money is in addition to the $36.8 billion agreed to in the 2003 Accord.

In return, the provinces (except Quebec) and territories agreed to a number of federal demands in the area of waiting times and home care services. This included setting common benchmarks for measuring waiting times across the country, and achieving agreed upon reductions in waiting times for medical treatment in five key areas (cardiac care, cancer treatment, diagnostic imaging procedures, joint replacement, and sight restoration). The provinces/territories also agreed, by 2006, to increase funding for certain home care services, such as short-term acute and mental health care, and for longer term end-of-life care.

In order to bring Quebec into the new health care arrangement, the federal government agreed to a separate agreement with the province, official entitled Asymmetrical Federalism that Respects Quebec’s Jurisdiction. Under this deal, Quebec promised to reform its home care services in its own way. The province also agreed to set its own benchmarks and indicators for waiting times that would be comparable to those implemented by the other provinces.

Another important element of the 2004 health care agreement was the establishment of a mechanism for resolving future disputes regarding the Canada Health Act. Originally part of the 1999 Social Union Framework Agreement and agreed to in a 2002 letter of intent, the purpose of the new mechanism was to minimize inter-governmental conflict over the interpretation and application of the Act’s basic criteria for provincial health care plans. In addition to a commitment by all governments to work together to avoid disputes before they occur, the new mechanism also included specific procedures for dispute resolution, most notably the establishment of a third-party panel to review disputes and make recommendations. It is important to note, however, that the decisions of the third party panel are not binding, meaning that the federal government retains final authority to apply the Canada Health Act.

For more information on the 2004 Health Care Agreement:

Government of Canada: First Minister’s Meeting on the Future of Health Care

Renewed Federal-Provincial Partnership in Health Care

The period between 1999 and 2004 saw a significant shift in federal-provincial relations in the area of health care. That said, the basic structure of federalism and public health care remains, with the provinces and territories responsible for administering their own public health care plans and the federal government acting as financial partner and enforcer of basic uniform, national standards. Nevertheless, the tone of the relationship between the two levels of government has changed from the highly combative situation of the 1970s, 80s, and 90s. This was due, in large part, to significant increases in federal funding for public health care – a critical demand for the provinces and territories. Moreover, through several agreements, including the Social Union Framework Agreement, the 2003 Accord on Health Care Renewal, and the 2004 Agreement on the Future of Health Care, the governments established key commitments and mechanisms for dealing with health priorities while minimizing inter-governmental conflict.

This, however, is not to suggest a complete absence of federal-provincial tension in health care. Continued rising costs and differences of opinion between governments on such issues as the Canada Health Act, waiting times, home care, and pharmaceutical coverage, will all continue to be potential sources of animosity between governments into the foreseeable future.

Sources and Links to Further Information

List of article sources and links for more on this topic

Sources Used for this Article

Dyck, R. Canadian Politics: Critical Approaches, 3rd Edition. Scarborough, Ontario: Nelson Thomson Learning., 2000.
Jackson, R. & Jackson, D. Politics in Canada: Culture, Institutions, Behaviour and Public Policy, 6th Edition. Toronto: Pearson Education Canada Inc., 2006.
Guest, D. The Emergence of Social Security in Canada: 3rd Edition. Vancouver: UBC Press., 1999.
Jackman, M. “Constitutional Jurisdiction Over Health in Canada.” Health Law Journal. 2000. 11 December 2007. <http://www.law.ualberta.ca/centres/hli/pdfs/hlj/v8/jackmanfrm.pdf>.
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Houston, S. “Hospital Services Plan.” The Encyclopedia of Saskatchewan. 11 December 2007. <http://esask.uregina.ca/entry/hospital_services_plan.html>
“1957 – Advent of Medicare in Canada: Establishing Public Medical Care Access.” Government of Canada. 11 December 2007. <http://www.canadianeconomy.gc.ca/english/economy/1957medicare.html>
“Canada’s Health Care System.” Health Canada. 07 June 2006. 11 December 2007. <http://www.hc-sc.gc.ca/hcs-sss/pubs/system-regime/2005-hcs-sss/back-context_e.html#2>
“The 2003 Accord on Health Care Renewal: A Progress Report.” Health Canada. 09 May 2006. 11 December 2007. <http://www.hc-sc.gc.ca/hcs-sss/delivery-prestation/fptcollab/2004-fmm-rpm/fs-if_01_e.html>
“First Ministers’ Meeting on the Future of Health Care 2004.” Health Canada. 09 May 2006. 11 December 2007. <http://www.hc-sc.gc.ca/hcs-sss/delivery-prestation/fptcollab/2004-fmm-rpm/index_e.html>
“2006 Annual Report: Pharmaceutical Management.” Health Council of Canada. 11 December 2007. <http://www.healthcouncilcanada.ca/en/index.php?option=com_content&task=view&id=79&Itemid=80>

Links for Further Information

2002 Mazankowski Report on Health Care in Alberta

Jay Makarenko — Sun, 01 Apr 2007 01:00:00 -0600

In 2002, several key reports on the future of health care were released, each of which outlined visions for reforming the Canadian health care system. At the federal level, there was the Report of the Commission on the Future of Health Care in Canada (the “Romanow Report”) and the Report of the Senate Standing Committee on Social Affairs, Science and Technology (the “Kirby Report”). At the provincial level, the Government of Alberta released the 2002 Report of the Premier’s Advisory Council on Health (commonly referred to as the “Mazankowski Report”). This article provides background on the Mazankowski Report, as well as an overview and analysis of its themes and recommendations.

Background on the Mazankowski Report

What is the Mazankowski Report?

Mazankowski Report Themes and Recommendations

What are the key conclusions and recommendations of the Report?

Analysis of the Mazankowski Report

How does the Report fit into the general debate on public health care?

Sources and Links to More Information

Lists of article sources and links for more on this topic

Background on the Mazankowski Report

What is the Mazankowski Report?

Premier’s Advisory Council on Health

The Mazankowski Report was produced by the Premier’s Advisory Council on Health, established, in August 2000, by former Alberta Premier Ralph Klein. The Council had a mandate to review the Alberta provincial health care system and make recommendations for both short- and long-term reform.

The Council had 12 members, including former politicians, health professionals, and academics. The Council was chaired by Donald Mazankowski, who had served in the federal cabinet of the former Progressive Conservative government helmed by Prime Minister Brian Mulroney. Since retiring from federal politics, and prior to his appointment to the Council, Mazankowski had participated in the health field, serving as chairman of the Institute of Health Economics (an Alberta-based research centre) and chairman of the Canadian Genetic Diseases Network.

For more information on the Council’s members:

Government of Alberta: Premier’s Advisory Council on Health

The Council published its final report, A Framework for Reform, in January 2002. The report is commonly referred to as the “Mazankowski Report,” reflecting the key role played by Mazankowski in its development. It is important to note, however, that the report’s final recommendations were the result of consultation with all Council members and with different organizations and individuals in Alberta’s health care field.

Council’s Mission and Activities

In preparing its report, the mission of the Council was to “provide strategic advice to the Premier on the preservation and future enhancement of quality health services for Albertans and on continuing sustainability of the publicly funded health system.” Within this context, the Council was asked to:

Assess the sustainability of the health system
Propose potential approaches and strategies
Make recommendations on a preferred vision and propose a strategic framework for health and health services in Alberta, consistent with the principles of the Canada Health Act.

In pursuing this mission, the Council:

Met with over 60 different organizations and numerous individuals representing various aspects of Alberta’s health system
Reviewed hundreds of reports and studies on health care
Reviewed information about health systems in other countries
Prepared a series of context papers on such topics as how the Alberta health system operates, how long patients wait for health services, and the views of Albertans on the health care system.

(Source: A Framework for Reform, Report of the Premier’s Advisory Council on Health)

Mazankowski Report and the Debate on Public Health Care

The creation of the Council and the release of its report occurred during a period of intense debate on the future of public health care, at both the national and regional levels. Much of this debate stemmed from concerns about the quality of public health care, including concerns about increasing waiting times for some medical services, as well as the public system’s overall financial sustainability. Tensions were high between different levels of government, with the provinces/territories demanding greater federal funding for public health care. In this context, some politicians, health professionals, and academics began to question the very foundations of Canada’s public health care system, calling for greater participation by private insurance companies and health providers.

In addition to the Mazankowski Report, several other key studies on the future of public health care were released during this period. The most ambitious was the 2002 federal report produced by the Commission on the Future of Health Care in Canada (commonly referred to as the “Romanow Commission,” as it was headed by former Saskatchewan Premier Roy Romanow). The Commission’s final report, entitled Building on Values: The Future of Health Care in Canada, was based on extensive public and expert consultation and comprised of 47 detailed recommendations.

For more information on the Romanow Report on Health Care:

Mapleleafweb: 2002 Romanow Commission on the Future of Health Care: Findings and Recommendations

Another key report to be released that year was the 2002 report of the federal Senate Standing Committee on Social Affairs, Science and Technology, commonly referred to as the “Kirby Report” (named after the Committee’s chair at the time, Senator Michael Kirby). All three of these reports, the Mazankowski, Romanow, and Kirby, contained significantly different recommendations and visions for reforming public health care.

For more information on the Kirby Report on Health Care:

Parliament of Canada: The Health of Canadians – The Federal Role

Mazankowski Report Themes and Recommendations

What were the conclusions and recommendations of the Report?

The Mazankowski Report outlines a broad range of themes and recommendations on reforming health care in Alberta. The following provides a summary of what the Report offered.

For complete details of the Report’s recommendations:

Alberta Health: Full Text of the Mazankowsi Report (PDF)

Key Themes of the Report

The Mazankowski Report identified 10 key themes regarding the Report itself and health care reform in general. These included:

Long-Term Reform: The Report is not about quick fixes or reducing costs in the short term. Instead, the objective is to reform the system over a longer term. Moreover, the Report is not about broad general ideas or approaches, but attempts to provide practical ideas and solutions to address the sustainability of the Alberta health care system.

Equitable Health Care: A central position of the Report and its recommendations is that Albertans should have fair and equitable access to health services. No one should be denied access to essential health services because they are unable to pay.

Promoting Health: The Report posits that the best long-term strategy for sustaining the health system is to encourage people to stay healthy. If Albertans and policy-makers focus simply on treating people when they get sick, the increasing costs of new treatments and technology could bankrupt the system.

Rejecting Rationing: The answer doesn’t lie in rationing health care services. People are concerned about access to health care services and rightly so. All Albertans should have access to the very best health care when they need it. And it should be available to everyone on equitable terms.

More than Efficiency: There is a need to extract maximum value for every dollar spent on health care. Such measures alone, however, will not be sufficient to match increasing demands and costs in the health care system.

New Ways of Paying: The burden of health care on the tax system is growing and will continue to grow with new treatments, new cures, new drugs, and growing demand. As such, there is a need to explore new ways of paying for health care.

Re-thinking Medicare: It’s time to think carefully about what medical services should be covered by public health insurance. The system was never designed to cover all aspects of health services, but people have come to expect that it will – and at no cost to individuals.

Innovation and Competition: There is a need to innovate. It is time to open the system up, allow health authorities to try new ideas, encourage competition and choice, and see what works and what does not.

Patient-orientation: There is a need to develop a patient-oriented system that encourages empowerment, accountability, and continuous quality improvement.

Made-in-Alberta Approach: There should not be a mimicking of other health care systems, be it those of the United States, the United Kingdom, or Sweden. Albertans and policy-makers must create their own alternative – one that preserves the best of the current system while also ensuring it can be sustained into the future.

Recommendations of the Report

In addition to the key themes identified above, the Report detailed 10 sets of recommendations for reforming Alberta’s health care system:

Staying Healthy: The first recommendation is a commitment towards healthy Albertans. Specific reforms include increased support for children in poverty, providing better public health awareness, reducing tobacco use, and providing incentives for people to stay healthy.
Putting "Customers" First: This recommendation involves understanding patients as "customers." Reforms include providing a 90-day guarantee of access to selected health services and providing more choice in the health care services they receive and where they receive them.
Reducing Services Covered by the Public Health System: The third recommendation calls for a reduction in the services a person would receive through his/her public health insurance plan. An expert panel would be established to review services currently insured and whether coverage should continue. Once a service was "de-listed," coverage would have to be through the private sector.
Invest in New Technology: This recommendation focuses upon the importance of new technology (in particular information technology) in making the health system more efficient and cost-effective. Reforms include the development and implementation of an electronic health record, and a debit-style electronic health card to track and improve health outcomes.
Encourage Choice, Competition and Accountability: The fifth recommendation would impose greater choice, competition, and accountability in the health system. Specific reforms include making regional health authorities more accountable and specialized, and blending private health care with public systems.
Diversify the Revenue Sources: This recommendation sees governments as the primary financial contributors to health, but also views funding from additional revenue sources as a viable alternative. Suggested reforms include increasing health care premiums and allowing regional health authorities to raise additional revenues.
Attracting, Retaining, and Making the Best Use of Health Providers: Suggested reforms include developing a "workforce plan" that defines the roles of various health providers and anticipates future demands on post-secondary education, improving morale, and introducing new approaches for paying physicians.
Make Quality the Top Priority for Alberta's Health System: Suggested reforms include the establishment of an "Outcomes Commission" which would measure outcomes, track progress, and report results.
Promote Alberta's Health Sector as an Asset to the Province: This crux of this recommendation is to enhance the economic benefits and spinoffs of the health care industry. Suggested reforms include the development of provincial centres of excellence in health research, and the commercialization of new products and services developed through medical research.
Establish a Clear Transition Plan: The final recommendation is administrative. Specifically, it calls for continued studies concerning the implementation of the reforms, informing the public when changes occur, and addressing barriers to implementation.

Analysis of the Mazankowski Report

How does the Report fit into the general debate on public health care?

Comparison to Current Health Care System

Does the Mazankowski Report represent a radical shift in health care policy, or does it simply involve making current approaches better? The answer is not that clear. On the one hand, the Report explicitly states that it is committed to the principles of Canada’s contemporary health care policy, in particular, the tenets of the Canada Health Act. Yet, on the other hand, the Report makes some recommendations which, if adopted, would seem to radically alter the health care system.

The Report’s mandate was to make recommendations for reform that were consistent with the Canada Health Act. The Act prohibits user-fees and extra-billing while requiring provincial/territorial health insurance plans to be publicly administered, comprehensive, universal, portable, and accessible. Generally speaking, then, there seems to be a commitment to the basic tenets of Canada’s contemporary health care system.

For more information on the Canada Health Act:

Mapleleafweb: The Canada Health Act: Provisions and Administration [insert link when published]

Moreover, the Report explicitly states that Albertans should continue to have fair and equitable access to health services, while regarding governments as the primary funders of health care in the province. Again, these are basic tenets of Canada’s contemporary health care system (although, the Report does not clearly define what it means by such things as “fair” and “equitable,” or governments being the “primary” funders of health care). The Report also highlights several non-controversial reforms, which, if implemented, would not radically alter the current public health care system. These include reducing health costs by promoting the general health of Albertans, searching for ways to maximize health care dollars (without reducing quality of service), and investing in new technologies to increase system efficiencies.

The Report does, however, make several key recommendations that might significantly alter the foundation of the current public health care system. For example, the Report suggests that more competition should be introduced in the system as a means of improving innovation, quality, and patient choice. Moreover, it suggests that increased participation by private medical providers would enhance this competition. Such a reform, however, pushes the boundaries of the traditional Canadian health system, which is, to a large extent, a public-monopoly of government health insurance plans and health providers (at least, in the context of medically necessary and hospital-provided health services).

The Report also makes several recommendations that may, in fact, be construed as violating the Canada Health Act. For example, the Report suggests that health authorities should be allowed to diversify their revenue streams beyond direct government funding. One might perceive this as opening the door to user fees, which are prohibited under the Canada Health Act. The Report also recommends re-thinking what services would be provided under Alberta’s public health insurance plan. Extensive de-listing of medical services could be a violation of the comprehensive requirement of the Canada Health Act.

Market-consumerism and Health Care

It is also important to draw attention to the basic language used by the Report, which provide some indication of what sort of health care system it is advocating. In several places, the Report discusses health care in terms common to market economics and consumerism. For example, it often talks about patients as “customers” of health care, whom should be provided with greater “consumer choice.” Moreover, it often references the health care system in terms of market dynamics, with different health providers “competing” with one another for “customer business.”

This type of language differs significantly from other approaches that view health care more in terms of a publicly provided, citizenship-based good. Under this alternative view, the focus is not on market competition and consumer choice, but on “social cooperation” and “citizen entitlements” to a certain standard of health care. Moreover, this sort of language is more closely associated with health care systems that are funded and administered by public entities (such as governments), than those based on competition between private medical service providers.

The point here is not to condemn or praise the Report for this language of market-consumerism, but simply to raise attention to the fact that there are different means of talking about health care. Moreover, these different languages often involve very different priorities for the health care system. The Mazankowski Report uses the language of market-consumerism, and, as a result, seems to place great emphasis on elements such as consumer choice and market competition in its suggested approach to reforming Alberta’s health care system.

Sources and Links to More Information

Lists of article sources and links for more on this topic

Article Sources

Premier’s Advisory Council on Health. “A Framework for Reform: Report of the Premier’s Advisory Council on Health.” Alberta Health. December 2001. 10 May 2007. <http://www.health.gov.ab.ca/resources/publications/PACH_report_final.pdf>
“Premier’s Advisory Council on Health Releases Comprehensive Report on Health Reform.” Government of Alberta. 8 January 2002. 10 May 2007. <http://www.gov.ab.ca/acn/200201/11771.html>

Links to More Information

Mapleleafweb: The Canada Health Act: Provisions and Administration [insert link when published]
Mapleleafweb: 2002 Romanow Commission on the Future of Health Care: Overview of Findings and Recommendations [insert link when published]
Alberta Health: A Framework for Reform: Report of the Premier’s Advisory Council on Health (PDF)
Government of Canada: Report of the Premier’s Advisory Council on Health (Alberta) – An Overview

The Charter & Health Care in Canada

Jay Makarenko — Fri, 01 Jul 2005 00:00:00 -0600

The issue of waiting lists in Canada's public health care system has given rise to a new national debate: the nature of health care rights under the Canadian Charter of Rights and Freedoms. In June 2005, the Supreme Court of Canada rendered a politically controversial decision in the case of Chaoulli v. Quebec (Attorney General), finding that citizens had a right to access private health care when the public system failed to provide adequate health services. This article discusses the Supreme Court of Canada's decision in that case, as well as its potential impact on Canada's health care system.

Background on the Chaoulli Case

How did the case come about and what does it involve?

The Charter & Health Care Policy

Section 7 of the Charter and its relationship to health care

Decision of the Supreme Court of Canada

What did the Supreme Court decide in the Chaoulli case?

Analysis of the Supreme Court’s Decision

What are some consequences of the Supreme Court’s decision for health care?

Links to More Information

A list of links for more information on this topic

Background on the Chaoulli Case

How did the case come about and what does it involve?

The following provides an introduction to the Chaoulli case, including the facts of the case, a description of the laws that were being challenged, the major issues, and its judicial history.

Facts of the Case

The case involves two individuals, a patient and a doctor.

Georges Zeliotis is a 70-year old salesman and a resident of the province of Quebec. In recent years, Zeliotis has suffered from several health conditions requiring he undergo medical treatment, including heart surgery and several hip operations. With respect to his hip surgery, Zeliotis was placed on a hospital waiting list in Montreal for nearly a year before he was able to receive his medical treatment. While he was on the waiting list, Zeliotis made enquiries to determine if he could pay to obtain hip surgery through a private health care facility. He also wanted to ascertain whether he could purchase private health care insurance in the event that he should require similar treatment in the future. Obtaining hip surgery by means of a private facility, as well as purchasing private health care insurance, however, were both actions prohibited by Quebec law.

Jacques Chaoulli is a physician in the province of Quebec. In his practice, Dr. Chaoulli provided medical services to many of his patients at their homes. For several years, Chaoulli has been in a dispute with the Quebec provincial government. Chaoulli had appealed to the Government of Quebec to cover the costs of the home medical treatment offered to his patients. He also requested that the province grant him the right to establish a private and autonomous hospital. The province denied both of Chaoulli’s requests.

Which Laws Were Challenged?

It is important to be clear on the nature of the laws that were challenged in this case.

In 1997, when the case began, there were two main pieces of legislation governing health care in Quebec, the Hospital Insurance Act (or HOIA) and the Health Insurance Act (or HEIA). The HOIA regulated access to health services and the organization of hospitals in Quebec, while the HEIA regulated the provision of health care insurance in the province.

Zeliotis and Chaoulli challenged specific sections of these laws. With regard to the Hospital Insurance Act, they challenged Article 15, which prohibited private insurance for services covered by the government’s insurance plan. Article 15 did not, however, prohibit private insurance completely. It only prohibited private insurance for medical treatments that were already insured under the government’s public insurance plan (for example, basic medical services and surgeries). Accordingly, with regard to basic medical treatment, patients could only purchase government insurance. For all other health services they could choose from different private insurance plans, or no insurance at all.

With respect to the Health Insurance Act, Zeliotis and Chaoulli challenged Article 11, which prohibited private contracting for medical services in hospitals by physicians who were non-participants in the government insurance plan. Whereas the first law had to do with patients and how they could pay for medical services, Article 11 had to do with doctors and how they could charge for medical services. It prohibited those doctors who chose not to participate in the government’s public insurance plan from setting up private hospitals and then charging directly for their medical services.

The effect of the two laws was to put severe restrictions on private medical insurance and services in Quebec.

What Are The Issues of This Case?

The view of Zeliotis and Chaoulli was that patients should be free to purchase private health insurance, or choose to receive medical services through private health providers. The matter of private vs. public delivery of health care services, however, constituted only one issue at play. There was another salient concern in this case: the growing impact of waiting lists in public service health care delivery in Quebec. Increasingly, patients have found themselves waiting extended periods of time before being able to access required medical services. In this context, Zeliotis himself had to wait nearly a year before receiving hip surgery through the public health system.

The issue of access to private health care was debated within this larger context of waiting lists. The question for the courts was simply whether Canadians should have the freedom to buy private health insurance and services. Instead, it became about the state of public health care in Canada, and whether it is right for governments to prohibit private medicine when so many patients are facing long delays for medical treatment in the public health system.

Judicial History

Three different courts heard this case, two in Quebec, followed by the Supreme Court of Canada.

In 1997, Zeliotis and Chaoulli went to the Superior Court of Quebec, asking it to strike down Article 15 of the Hospital Insurance Act and Article 11 of the Health Insurance Act. One of their main arguments was that the limited access to private medical services violated the rights to life, liberty, and security of the person under Section 7 of the Canadian Charter of Rights and Freedoms.

See the Background on Section 7 of the Charter section of this article for an introduction to the Section 7 rights to life, liberty, and security of the person.
Also see the Section 7 and Health Care section of this article for more on how Section 7 is relevant to the health care debate.

The Superior Court of Quebec disagreed. The Court concluded that the Quebec government’s decision to limit access to private health care was constitutional under the Charter; it dismissed the case.

Zeliotis and Chaoulli appealed that decision to the Quebec Court of Appeal. Again the two made the argument that a limited access to private medical services violated individual rights enjoyed under Section 7 of the Charter. The Quebec Court of Appeal, however, upheld the Superior Court’s decision, and dismissed the case.

See the Decisions of the Lower Courts section of this article for more on how the Quebec Superior Court and Court of Appeal decided this case.

Zeliotis and Chaoulli again appealed the decision, this time to the Supreme Court of Canada, the nation's highest court. In June 2005, a majority (four of seven judges) on the Supreme Court overturned the decisions of the two Quebec courts. The ruling by the Court found that restricting access to private medical services was illegal vis-à-vis the significance of wait lists for treatment under Quebec’s public health system. The decision immediately set off fierce debate about the future of health care in Canada.

See the Decision of the Supreme Court of Canada section of this article for more on how the Supreme Court decided this case.

The Charter & Health Care Policy

Section 7 of the Charter and its relationship to health care

The Chaoulli case centred on Charter rights in the context of health care policy, in particular, Section 7 of the Charter. Before discussing the Court's decision in that case, it is important to be clear on the nature of the Section 7 right and its relationship to health care policy.

Section 7 of the Charter

Section 7 of the Charter states that Canadians have the right to three key things:

Life: Canadians have a right to be alive and not to be killed.
Liberty: They also have right to be free from the interference of the government in their actions.
Security of the person: Finally, they have the right not to be harmed physically, mentally, or psychologically.

While Canadians are entitled to life, liberty, and security of the person, Section 7 does not grant these rights absolutely. Instead, the Section states that these rights may be taken away if, and only if, done so in a manner that is consistent with the principles of fundamental justice. In other words, these rights may be violated if it is done in a "just" manner.

Example of Section 7 in Action

It might be helpful to use a hypothetical example to work through the ideas of Section 7. Let’s say you are arrested for stealing a car. The police formally charge you for the crime and you are quickly sent to trial. At the trial, you are able to present evidence in your defence and question the prosecution’s witnesses. However, your defence is not strong enough and you are convicted and given two months in prison.

Have your rights under Section 7 been violated? On one level they have. Section 7 states that you are entitled to life, liberty, and security of the person. The fact that you now find yourself in prison is a definite violation of one of those entitlements — the right to liberty. Remember though, Section 7 allows the government to take away your life, liberty or security of the person if it does so in a manner consistent with the principles of fundamental justice. Have you been treated "justly" in your case? Indeed you have. While your liberty was taken away, certain principles of fundamental justice were followed. You were given a timely and fair trial, and your punishment reflected the severity (or lack thereof) of your crime. Hence, there is no violation of Section 7.

Let’s consider a slightly different scenario. You are arrested for stealing the car, but this time you are left in jail for two years before receiving a trial. When you do get to trial, you discover that you are not allowed to defend yourself in any way at all. Further, the judge states at the outset that he hates car thieves and can’t wait to make an example out of you, regardless of whether you are in fact guilty or not. You are convicted of the crime and the judge sentences you to life in prison.

In this scenario we see a clear violation of Section 7. As in the first case your right to liberty has been violated by the fact that you are now in prison. What is different though, is that your liberty has been deprived in a manner contrary to the principles of fundamental justice. You were not given a timely trial, nor was it conducted in a fair or impartial manner. Moreover, the punishment meted out was too extreme for the crime.

Section 7 & Health Care Policy

So what is the relationship between Section 7 and health care policy?

In their case, Zeliotis and Chaoulli argued that limits on access to private medical services, which forced patients onto waiting lists in the public system, violated their Section 7 rights to life and security of the person. With regard to “life,” it was argued that delays in medical treatment resulted in a higher chance that the patient’s illness or injury could become fatal. This higher risk of death, it was suggested, was a violation of the right to life. As for “security of the person,” it was argued that the delays (in being able to receive medical treatment) resulted in a higher chance that a patient’s illness or injury would become permanent, and that patients who had to wait for medical treatment consequently experience great psychological suffering. In the view of Zeliotis/Chaoulli, both of these factors suggested a clear violation of the right not to be harmed physically, mentally, or psychologically.

Remember though, Section 7 permits governments to violate rights to life and security of the persons, if it does so in a "just" manner. Zeliotis and Chaoulli, however, argued that the Quebec government’s prohibition of access to private health care, the cause of the violation of the Section 7 rights, did not meet this condition/standard.

An important principle of fundamental justice is that any violation of a person’s life, liberty, or security of the person should not be committed arbitrarily. That is, such a violation should not occur on a whim, or without due reason or necessity. Whenever the government puts the life, liberty, or security of persons at risk, it must have reason to do so. Zeliotis and Chaoulli argued that the government’s decision to limit access to private health care was in fact arbitrary. According to them, there was no valid reason for the government to stop people from seeking out private medical treatment when the alternative was to rely on a public system characterized by wait lists and, in their view, increased risk of suffering and death.

In contrast, the Government of Quebec asserted that it had good reason to maintain such a prohibition. It argued that the protection of the public health system, and its ideal of health care based on need rather than wealth, was an important government objective. Moreover, to protect the public health system, it was necessary to restrict access to, and the growth of, private health care.

Decision of the Supreme Court of Canada

What did the Supreme Court decide in the Chaoulli case?

The Supreme Court of Canada allowed Zeliotis and Chaoulli’s appeal. However, it was very divided on the issue, with only four of the seven justices allowing the appeal. The following provides an overview of both the majority and minority's decisions in this case.

The View of the Majority: The Position of Justices McLachlin, Major, and Bastarache

While a majority of the seven judges agreed that Zeliotis and Chaoulli’s appeal was to be allowed, they did so for different reasons.

Three judges, McLachlin, Major and Bastarache, concluded that limitations imposed by the Government of Quebec on access to private health care, and in particular the prohibition of access to private health care insurance, violated Section 7 of the Charter. Moreover, the judges deemed that the violation was not justifiable under Section 1 of the Charter.

Highlights of the decision are as follows:

Violation of Section 7 Rights

For McLachlin, Major, and Bastarache, the evidence showed that waiting lists in Quebec’s public health care system — and the associated delays in treatment — to be widespread and severe. In the estimation of the judges, this lack of patient access to timely health care was viewed as a key factor with the potential to cause serious psychological and physical suffering in patients — and in some cases, perhaps even death. In their view, where there is the risk of patient suffering, the Section 7 right to security of the person under the Charter is deemed to have been violated. Where there is the risk of patient death, the Section 7 right to life is deemed to have been violated.

The three judges also found a link between the actions of the Quebec government and the violation of the Section 7 rights. The failure of the government to deliver timely health care in the public health system, in addition to the limitations imposed by the government on access to private insurance, increased the risk of patient suffering and death.

Contrary to the Principles of Fundamental Justice

McLachlin, Major, and Bastarache further concluded that prohibition on private insurance was arbitrary and, hence, contrary to the principles of fundamental justice. For them, there was no clear evidence that the prohibition was connected to maintaining quality public health care. In their view, any prohibition on private insurance was viewed as a violation of Section 7 of the Charter.

Not justified under Section 1 of the Charter

McLachlin, Major, and Bastarache also found the violation of Section 7 could not be justified under Section 1 of the Charter. This Section permits the government to violate a right or freedom guaranteed under the Charter if the government could show good or sufficient reason. The judges accepted the Quebec government’s argument that it should be allowed to protect the public health system. However, they disagreed that the ban on private health insurance was necessary to meet this objective. For them, the integrity of the public health system could be maintained even if Quebecers were allowed to purchase private health insurance.

The View of the Majority: The Position of Justice Deschamps

While Justice Deschamps agreed with Justices McLachlin, Major, and Bastarache that the appeal should be allowed, she did so using a very different approach: she decided the case under the Quebec Charter of Human Rights and Freedoms, rather than the Canadian Charter of Rights and Freedoms.

Before moving on to her reasoning for allowing the appeal, it is important to discuss the Quebec Charter. The two charters referenced are not one and the same. The Canadian Charter is part of the Canadian Constitution; it applies to all people and governments in Canada (including Quebec). In contrast, the Quebec Charter is provincial legislation passed by the Quebec legislature that applies only within the borders of Quebec. In effect, then, Quebecers have two charters protecting their rights and freedoms.

While there are great similarities between the two documents, the Quebec and Canadian charters do differ somewhat in terms of the rights and freedoms they guarantee. Hence, a decision made under the Quebec Charter is not automatically binding under the Canadian Charter — unless explicitly stated.

In the Chaoulli case, the Supreme Court reviewed legislation passed by the Government of Quebec. Accordingly, the Court could review the legislation under both the Quebec and the Canadian charters. In this regard, however, if the Court found that the legislation violated one of the charters, there would be no need to make an assessment under the other. The legislation would be struck down, and the Court would not have to weigh in as to whether or not the legislation would have violated the second charter.

This is exactly what Deschamps did. She struck down the legislation under the Quebec Charter, and did not explicitly state whether she would have rendered the same verdict under the Canadian Charter.

In terms of her specific conclusions, Deschamps found the following:

Violation of Quebec Charter Rights

For Deschamps, the evidence showed that delays in medical treatment caused by waiting lists, coupled with limited access to private medical treatment, increased a patient’s risk of mortality, and the risk that his/her injuries would become irreparable, or the risk of pain and suffering while waiting for treatment would increase. This “increased risk” violated the rights to life, and personal inviolability, under Section 1 of the Quebec Charter.

Not Justified Under the Quebec Charter

Deschamps concluded the violation of the rights to life and personal inviolability under Section 1 of the Quebec Charter was not justified under Section 9.1 of the Quebec Charter. For her, the Quebec government’s decision to prohibit private health insurance had an important purpose: namely, to protect the integrity of the public health system. However, in her view, the evidence did not show why it was necessary to have an absolute prohibition on private insurance. According to Deschamps, there were alternative methods available to the government that would have protected the public health system without violating an individual’s right to life and personal inviolability so severely.

The View of the Minority: The Position of Justices Binnie, LeBel, and Fish

Three judges, Binnie, LeBel, and Fish, disagreed with the majority and concluded that Zeliotis and Chaoulli’s appeal should be disallowed. For them, the Quebec government’s prohibition on private health insurance neither violated Section 7 of the Canadian Charter, nor was it illegal under the Quebec Charter.

It is also important to note that the minority expressed strong concern over the implications of the majority’s decision — and particularly, that the majority was being too active in Canadian health care policy and debate.

The following is an overview of the minority’s conclusions:

Possible Violation of Section 7 Rights

The minority judges concluded that the current state of the Quebec health system, linked to the ban on access by Quebec residents to private insurance, was capable of putting patients at risk of suffering and death. This represented a violation of the rights to life and security of the person under Section 7 of the Charter.

Binnie, LeBel, and Fish, however, found the prohibition of private insurance to be in accordance with the principles of fundamental justice and, hence, in their view, there was no violation of Section 7 overall. They disagreed that the Quebec government’s decision to prohibit private insurance was arbitrary and, accordingly, contrary to the principles of fundamental justice. For them, the prohibition was directly related to Quebec’s desire for a strong single-tiered, needs-based, public health system. Prohibiting private insurance discouraged the expansion of private health services and protected the integrity of the public system.

The judges who ruled in the minority also pointed out there was no clear evidence to suggest wait lists would be improved if the Government of Quebec permitted private health insurance and health care service delivery. In their view, the development of a parallel private system could trigger reduced funding of the public system by government, and actually worsen waiting lists in the public system overall.

As, in their view, there was no Section 7 violation, the minority found the prohibition of private health insurance by the Quebec government to be constitutional under the Canadian Charter. Using similar rationale, the minority also found there to be no violation of Quebecers’ rights under the Quebec Charter.

Criticism of Majority Decision

The minority did more than simply disagree with the majority. Justices Binnie, LeBel, and Fish went on criticize the majority for pushing the courts much too far into Canadian health care policy. In their view, the decision of the majority pushed the judiciary into new territory — in the sense of determining, in constitutional terms, the scope and nature of “reasonable” health services. Not only would it be very difficult, in practical terms, for the courts to address this standard in constitutional terms, but also the minority felt that such an issue was best left to democratically elected politicians.

Analysis of the Supreme Court’s Decision

What are some consequences of the Supreme Court’s decision for health care?

In the end, the Supreme Court of Canada struck down the Quebec laws that prohibited private insurance for services covered under the government’s public insurance plan and also limited patients’ access to private medical treatment. The consequences of the Supreme Court decision, however, are very complex. The following provides a discussion of what the decision means to health care in Canada.

Private Versus Public Health Care in Canada

There may be a tendency to conclude the Supreme Court decision has opened the door wide to the delivery of private health care services across Canada. However, closer analysis shows this is not quite the case.

What the court was concerned with were the delays faced by patients in receiving medical treatment. For the majority of the Supreme Court of Canada, these delays caused a higher risk of suffering and death to patients and violated rights under the Canadian and Quebec charters.

Furthermore, the majority contributed this problem to a combination of two things: waiting lists in the public system and limited access to private medical treatment. It was asserted that these two factors drastically reduced the ability of patients to receive timely health care. On one hand, they had to endure waiting lists in the public system. On the other, they could not bypass the waiting lists by accessing private medical treatment.

The majority decided that something had to give. The delays in medical treatment faced by patients were unacceptable and the causes of these delays had to be eliminated. However, the court did not paint the Quebec government into a corner. It did not conclude that the government must allow greater access to private medicine no matter what. It only stated that greater access must be allowed if patients could not receive timely treatment in the public system.

What this means is that the government can continue to limit access to private medicine if it takes care of the problems in the public system. It must reduce waiting lists and ensure that patients in the public system receive medical treatment in a timely manner. If not, then Canadians should be able to bypass waiting lists through private health care.

In the end, the Supreme Court has left much room in the debate on private versus public health care in Canada. While it has rejected the current state of health care, and is demanding governments to act, it has not forced their hand in one direction or the other.

For more information on the debate over the future of health care in Canada:

Health Care Rights Under the Charter

One of the most important implications of the Chaoulli decision is that the courts have strengthened health care rights in Canada. Traditionally the courts have granted very limited health care rights to Canadians under the Charter. They have preferred to let elected legislatures decide how and when Canadians could access medical treatment.

However, the Chaoulli case suggests that may no longer be the case. The majority of courts have recognized the right of Canadians to enjoy “timely access” to health care. Canadians can make a claim against governments whenever they are faced with delays in receiving the medical treatment they need. Governments must act in a manner that ensures this timely access.

It is important to note, however, that the precise nature and scope of this whole issue remains far from clear. While the Chaoulli case illustrates that waiting lists would be a violation of this right, it remains to be seen whether other problems, such as an inability to pay for medical treatment, would also qualify as a violation of the right to timely health care access.

Moreover, the constitutional status of this right is not yet clear. Only three of the seven judges (Justices McLachlin, Major, and Bastarache) explicitly stated that there was a right to timely access under Section 7 of the Charter. The judges in the minority (Binnie, LeBel, and Fish) were not explicit on this issue. The other majority judge (Justice Deschamps) decided the case under the Quebec Charter, remaining silent on whether there was a right to timely access to health care under Section 7 of the Canadian Charter.

Finally, it is important to mention that none of the judges suggested a Charter right to private health care. The key issue for the Court was waiting lists.

Role of the Courts in Health Care Policy

The Chaoulli decision also has the potential to evoke major change in the role that courts play in determining Canadian health care policy. The courts have traditionally steered clear of interfering in government decisions regarding health care. Past court decisions have shown a strong preference to leave decisions concerning health care within the domain of the democratic process and elected politicians.

However, now that a right to “timely access” to health care has been established, the role of the court may be significantly broadened. The minority judges highlighted this new role for the court in their decision. They asserted that the courts would now be responsible for determining what “timely access” means and whether it exists in the health system or not. In this context, anytime patients feel their right to timely access has been violated, they can turn to the courts for a judgement. If the courts find that standards are not met, they can force the government to change its policies accordingly.

Health Care

Canadian Federalism and Public Health Care: The Evolution of Federal-Provincial Relations

An overview of federal-provincial constitutional powers in the area of health care

Federal-provincial relations and the creation of the public health care system

Federal-provincial relations and public health care over three decades

Shifts in federal-provincial relations in public health care between 1999 and 2004

List of article sources and links to more on this topic

Division of Powers and Health Care in Canada

The Constitution, Federalism, and Health Care

Provincial Powers in the Area of Health Care

Federal Powers in the Area of Health Care

Territories, Cities, and Health Care

Canadian Federalism and the Introduction of Public Health Care

Early Health Care in Canada

Introduction of Provincial Hospital Care Plans

Introduction of Nationwide Medicare

Federal-Provincial Inter-relationship in Public Health Care

Canadian Federalism and Public Health Care 1970-2000

Changes to Federal Health Care Funding

Introduction of the Canada Health Act, 1984

Recent Trends in Canadian Federalism and Public Health Care

1999 Social Union Framework Agreement

2002 Romanow Commission on Health Care

2003 Accord on Health Care Renewal

2004 Agreement on the Future of Health Care

Renewed Federal-Provincial Partnership in Health Care

Sources and Links to Further Information

Sources Used for this Article

Links for Further Information

2002 Mazankowski Report on Health Care in Alberta

What is the Mazankowski Report?

What are the key conclusions and recommendations of the Report?

How does the Report fit into the general debate on public health care?

Lists of article sources and links for more on this topic

Background on the Mazankowski Report

Premier’s Advisory Council on Health

Council’s Mission and Activities

Mazankowski Report and the Debate on Public Health Care

Mazankowski Report Themes and Recommendations

Key Themes of the Report

Recommendations of the Report

Analysis of the Mazankowski Report

Comparison to Current Health Care System

Market-consumerism and Health Care

Sources and Links to More Information

The Charter & Health Care in Canada

How did the case come about and what does it involve?

Section 7 of the Charter and its relationship to health care

What did the Supreme Court decide in the Chaoulli case?

What are some consequences of the Supreme Court’s decision for health care?

A list of links for more information on this topic

Background on the Chaoulli Case

Facts of the Case

Which Laws Were Challenged?

What Are The Issues of This Case?

Judicial History

The Charter & Health Care Policy

Section 7 of the Charter

Example of Section 7 in Action

Section 7 & Health Care Policy

Decision of the Supreme Court of Canada

The View of the Majority: The Position of Justices McLachlin, Major, and Bastarache

Violation of Section 7 Rights

Contrary to the Principles of Fundamental Justice

Not justified under Section 1 of the Charter

The View of the Majority: The Position of Justice Deschamps

Violation of Quebec Charter Rights

Not Justified Under the Quebec Charter

The View of the Minority: The Position of Justices Binnie, LeBel, and Fish

Possible Violation of Section 7 Rights

Criticism of Majority Decision

Analysis of the Supreme Court’s Decision

Private Versus Public Health Care in Canada

Health Care Rights Under the Charter

Role of the Courts in Health Care Policy

Links to More Information

Mapleleafweb Links

Government Links

Legislation Links

Research Links