Canadian Health Care System Fails Court Test

Published August 1, 2005

On June 9, the Supreme Court of Canada struck down a Quebec law that had banned private health insurance for services covered under Medicare, Canada’s socialized health care program.

“This is indeed a historic ruling that could substantially change the very foundations of medicare as we know it,” Canadian Medical Association President Dr. Albert Schumacher said after the ruling. The ruling means Quebec residents can pay privately for medical services, even if the services also are available in the provincial health care system.

Doctor Challenged System

A Canadian doctor, Jacques Chaoulli, challenged the constitutionality of the ban on private payment. He argued that long waiting times for surgery contradict the country’s constitutional guarantees of “life, liberty, and the security of the person.”

Canada’s highest court ruled a province may not force an individual to endure poor quality health care services or unreasonable waiting times for medically required services, and hence could not prevent individuals from getting access to private health insurance.

“Access to a waiting list is not access to health care,” the court said in its ruling.

Ruling Affects Entire Nation

Chaoulli was joined in the case by his patient, Montreal businessman George Zeliotis, who waited a year for hip replacement surgery.

Zeliotis, 73, tried to skip the public queue to pay privately for the surgery but was told it was against the law. He argued the wait was unreasonable, endangered his life, and infringed on his constitutional rights. The court agreed.

The case involved the Quebec Hospital Insurance Act and directly applies to that province only, but it is expected to affect the other Canadian provinces, where private insurance is also banned.

The court split 3-3 over whether the ban on private insurance violates the Canadian Charter of Rights and Freedoms (the Canadian equivalent of the U.S. Bill of Rights). The court delayed for a year before issuing its verdict.

Chaoulli had persevered in spite of two lower court rulings against him that found the limitation on individual rights was justifiable in order to prevent the emergence of a two-tier health care system.

Private Insurance Market Likely

The decision “will open the market to private insurance in Quebec,” said Sally Pipes, president of the Pacific Research Institute. “I would hope that a type of HSA market will open up at some point as well as private hospitals in Quebec.

“[People in all] of the other provinces are going to have to file suits and win in order to break the system down,” Pipes noted.

“While the Supreme Court’s decision directly impacts only the prohibition of private health insurance in Quebec, it leaves the prohibitions and restrictions in other provinces standing on shaky ground,” said Nadeem Esmail, senior health policy analyst at Canada’s Fraser Institute.

Esmail continued, “If Quebec’s rules violate the right to ‘life, personal security, inviolability and freedom,’ how can similar rules in other provinces not also violate these basic human rights that are a core component of the very fabric of a modern society? The writing is clearly on the wall: The prohibition of private insurance and payment for health care is not legitimate and should not continue anywhere in this great nation.”

Grace-Marie Turner ([email protected]) is president of The Galen Institute.