Private health insurance litigation

The most strongly held views on the appropriateness of private health insurance are likely to arise in court challenges to provincial bans this year.

With governments often slow to make substantial changes in the health system, it’s the legal realm that looks set to stir the pot in the health-care debate.

In any discussion on the efficacy of prohibitions on private health insurance, it appears that the strongly expressed opinion of the Supreme Court in Chaoulli v. Quebec (Attorney General) should have been the last word, but that hasn’t been the case so far.

In that case, the majority on the court said: “The physical and psychological suffering and risk of death that may result from the prohibition outweighs any benefit — and none has been demonstrated here — there may be to the system as a whole.”

In a reflection of the polariz-ation of the debate across the country, the minority expressed itself just as strongly in support of the opposite opinion that the expansion of private health care would undoubtedly have a negative impact on the public health system and that shifting the design of the health system to the courts isn’t a wise choice.

Many advocates of health-care reform had hoped governments would read Chaoulli and amend their prohibitions in response. Instead, the provincial governments took the decision as an incentive to improve wait times but haven’t tackled overall reform. Now, the issues will surface once again with court cases proceeding in Ontario and British Columbia.

McCreith & Holmes v. Ontario (Attorney General) and Cambie Surgeries Corp. v. British Columbia (Medical Services Commission) both look set to reach trial later this year.

Even some lawyers see litigation as a waste of public resources they would rather see spent on health. But given the lack of political will, individual litigants are using the court system to address what’s essentially a matter of public policy.

Jim Viccars is the principal of Acure Health Corp., which offers private health insurance supplemental to the public system. He believes there’s no point in waiting for the people who created the problem to fix it.

“In the last seven years, there have been at least a dozen health-care initiatives that have had no great effect,” he says. “Some provinces’ services have grown worse.”
He hopes the lawsuits will force the provinces to be more flexible.

Viccars believes that if private medical insurance was widely available, it would alleviate a lot of expenses and allow people to fully use the existing facilities. “Someone looking for knee surgery in Canada waits 12 to 18 months. In Australia, which offers private health insurance, the wait is 46 days. It’s a huge difference.”

His stance continues to meet considerable opposition. Professor Colleen Flood, Canada research chair in health law and policy at the University of Toronto, articulates a completely divergent view.

“Rights to private health care only benefit the well to do,” she says. “It’s not the same as a right to timely treatment that would work for everyone. Lots of rich people aren’t actually that sick. They just don’t want to wait.”

Flood doesn’t think private health insurance will free up treatment for everyone when there aren’t enough doctors available. “Doctors can’t treat millions of people. If they are treating more private patients, they have less time for public patients.”

Flood thinks the current lawsuits aren’t representative of a groundswell of dissatisfaction. “There will always be some patients who fall through the cracks, but the pressure is not from them.

Most of the pressure is coming from disgruntled physicians who look to benefit from further privatization like Dr. Chaoulli in Quebec and Dr. Brian Day in B.C. They do try to find a sympathetic plaintiff patient.”

Lawyer Chris Schafer, executive director of the Canadian Constitution Foundation that’s financially supporting the Cambie clinic and McCreith cases, couldn’t be more diametrically opposed to Flood’s viewpoint.

Schafer points out that Canada is the only country within the Organisation for Economic Co-operation and Development with a ban on private health insurance.

“We’re the outlier,” he says. “If anyone is doing things differently and doing it poorly, it’s Canada. We want to be doing the things that other OECD countries do. These are good comparative countries that allow the purchase of private insurance along with copayments and other measures.

Their waiting lists are shorter and their outcomes are better. Private and public systems can coexist.”

Viccars suggests Canadians are beside themselves with worry about their health. “The public system can’t provide the care in a reasonable time,” he says. “We need better access to specialists, scans, and surgery for non-life-threatening conditions from minor things to heart bypasses.”

Schafer is frustrated that the issue is often a debate about rich versus poor. He points out that the two plaintiffs in the Ontario litigation are ordinary people as one of them owns an auto-body shop and the other is a self-employed mediator.

“They believe the monopoly in health care could have killed them. They are pursuing the court case so other Canadians don’t have to go through the same thing. The fact is that health care isn’t serving the poorest segment as well as it could.”

Even so, Flood is unconvinced. “The idea of jetliners full of Canadians heading for the U.S. to avoid wait times is wrong. People travel from all over the world to the Mayo Clinic. That’s not an argument for a two-tier health system in Canada. It may be an argument for the development of a Mayo Clinic in Canada.”

Flood says it’s important to take into account that there’s already significant use of private health insurance in Canada for things like prescription drugs and home care.

“When you think about liberalizing the laws, the courts must consider that we already have a deep penetration of private health insurance,” she says.

“If you suddenly opened it wide up, the effect would be greater and much more systemic than a country like Sweden that has three per cent. It requires economic modelling, which the courts may not be able to do. It is deeply complicated and fraught with dangers.”

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