Canadian Supreme Court upholds right to take out private health insurance

A surprise ruling of the Supreme Court of Canada that struck down a Quebec prohibition on private health insurance in that province has raised fears that a two tier health care system will arise to replace the whole country's universal publicly funded system. Until now, Canadians have not been allowed to buy health insurance to cover services provided by the publicly funded system, even though there are long waits for some of these services. The decision of the court is likely to result in residents of other provinces also challenging the ban.

The court judgment was given in a case brought by Jacques Chaouilli, a Quebec doctor whose patient, George Zeliotis, had waited nearly a year for hip replacement surgery. Dr Chaouilli and Mr Zeliotis argued that Quebec's ban on buying private insurance for services already covered by the public system yet not readily accessible violated both Quebec's Charter of Rights and Freedoms and Canada's Charter of Rights and Freedoms.

The court agreed: “In sum, the prohibition on obtaining private health insurance, while it might be constitutional in circumstances where health care services are reasonable as to both quality and timeliness, is not constitutional where the public system fails to deliver reasonable services.”

The ruling is being interpreted in different ways by different interest groups. The Canadian Taxpayers Federation claimed the ruling signals “the end of medicare as we know it” (Toronto Star 2005 Jun 10: A26). But international affairs columnist Jeffrey Simpson of the Toronto Globe and Mail pronounced “the sacred trust—or sacred cow—of public only medicine is finished” (Toronto Globe and Mail 2005 Jun 10: 1)

But champions of the present universal system are insisting that it will survive. Prime Minister Paul Martin said, “We're not going to have a two tier healthcare system in this country. What we want to do is to strengthen the public healthcare system.” Mr Martin and Health Minister Ujjal Dosanjh say that $C41bn (£18bn; €27bn; $33bn) in additional financing to the healthcare system over the next 10 years will solve the waiting list problem (BMJ 2004;329:704).

Federal officials, trying to quell widespread public anxiety about the fate of their most popular social programme, have characterised the court's narrow, four-three decision as “a wake-up call” to end the long waiting times for treatment that caused it.

The controversy brings to head long standing complaints that Canada's healthcare system is underfunded and staggering under escalating costs, staff shortages, and increasing demands for services.

Albert Schumacher, president of the Canadian Medical Association, which has long urged governments to consider allowing some provision of private services, said, “The feds are trying to take some first steps in this, but look, we're far behind getting to a solution. This [decision] is going to crank up the speed of the treadmill significantly.”

The present situation in Canadian health care is complicated by the fact that some private services are already available. If, for example, a Quebec citizen does not want to wait many months to get publicly paid cataract surgery, private services can be obtained—at a cost. He or she can also find private clinics that will provide magnetic resonance imaging, for example, where equipment in the public system is in short supply.

Alberta already provides some private services and has been considering adding more. The public system guarantees access only to “approved” medical and hospital services, which differ in availability from province to province. This results from a time in the 1960s when the national system was set up and when “healthcare services” meant predominantly those provided by doctors and hospitals, although other services have been added since.

Canada's constitution provides a “notwithstanding” clause that allows provinces to override a ruling of the Supreme Court, but the Quebec government says that it will not invoke this clause, asking instead that the Supreme Court delay the effect of its ruling. Jean Charest, Quebec's premier, says that his government eventually will comply with the ruling and that it can do so without undermining the public healthcare system. “We are going to look at all the details of the ruling, but we are certainly going to do what we have to do to preserve the healthcare system in which we believe.”