June 10, 2005

With the Canadian Supreme Court ruling in his hands, George Zeliotis celebrates, following his victory in challenging the Quebec Hospital Insurance Act.

Canada's top court has looked into the eyes of the country's political leaders and called their bluff. For more than a decade, prime ministers and premiers have boasted about how medicare is the best health care system in the world. In election after election, they have pledged to make it even better.

But in a split decision yesterday, the justices of the Supreme Court of Canada exposed that rhetoric for what it plainly is: A lie, a shallow promise, a political tactic employed by the federal Liberals to gain, and retain, the keys to government.

The judgment is truly historic and will transform this country's health system in ways that we still do not comprehend. But this much is clear: Some of the judges were unwilling to let governments twiddle their thumbs any longer, while countless Canadians suffer and die while on lengthy wait lists for medical treatment.

Three of the judges wrote it was best for the court to stay out of a political debate that has been raging in this country for years. But four others clearly did not. Justice Marie Deschamps was the most blunt:

"This is not a case in which the court must show deference to the government's choice of measure," she wrote. "The courts have a duty to rise above political debate. ... Inertia cannot be used as an argument to justify deference.

"When the courts are given the tools they need to make a decision, they should not hesitate to assume their responsibilities. Deference cannot lead the judicial branch to abdicate its role in favour of the legislative branch or the executive branch."

The case was brought to the high court by Dr. Jacques Chaoulli and George Zeliotis, a 74-year-old Montreal businessman who contended he waited too long for his hip surgery in the mid-'90s. They said the waiting lists in the publicly funded system have become so long that they violate the Charter of Rights' guarantee of life, liberty and security of the person. Instead, people should have the right to buy private health insurance and pay for private care rather than waiting in the public queue, they contended.

Others told the court a private insurance system would endanger the public system by draining medical talent and public support away from medicare. It was an argument three of the judges accepted.

But Judge Deschamps and three others -- Chief Justice Beverley McLachlin, Justice John Major, and Justice Michel Bastarache -- concluded those fears are groundless. In their opinion, Chief Justice McLachlin, Judge Major and Judge Bastarache were biting in their criticism of the warning about private insurance that is repeatedly espoused by the federal government.

They wrote that other western democracies have private insurance systems without harming the public health systems.

"When we look to the evidence, rather than to assumptions, the connection between prohibiting private insurance and maintaining quality public health care vanishes."

And ultimately, they wrote, the benefits of Quebec's law banning private insurance do not outweigh its "deleterious effects."

"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. Life, liberty and security of the person must prevail."

And so, the door has been opened for a private health care system in one province -- Quebec. Residents there will be permitted to buy private insurance to get life-saving treatment faster than they would in the public system. An industry will develop. Private insurers that now sell insurance for dental work and physiotherapy will surely add a gold-plated version -- plans, with pricey premiums, to cover everything from hip replacements to heart surgery.

With that development, a new market for Quebec doctors will appear. They will opt out of medicare and set up their own private clinics and hospitals -- only because they now know that there are enough patients who can, with the assistance of private insurance, pay the hefty bills.

Elsewhere in the country, pressure will build on politicians for similar freedoms. Indeed, outside of Quebec there will be more lawsuits from patients -- encouraged by the friendly voices they have heard on the Supreme Court -- to get the legal right to buy their own health care.

And in Ottawa and the provincial capitals, the country's political leaders will search in panic for a solution. They should have long ago seen yesterday's momentous decision coming.

In fact, they were warned by experts that, before long, a patient would convince the courts that Charter rights were being violated because of unduly lengthy waiting lists.

Regrettably, governments of all political stripes allowed medicare to deteriorate throughout the 1990s. Part of the problem was that no one had the political will to implement the reforms that everyone said was necessary. And everyone was obsessed with slashing deficits. As a result, hospitals were closed and the provinces allowed the very backbone of the public system -- doctors and nurses -- to diminish in numbers.

In the 1993 federal election, the Liberals under former prime minister Jean Chretien promised to rescue medicare. They released their famous campaign platform, known as the Red Book which was co-written by Paul Martin.

The Liberals blasted the Mulroney government for slashing health-care transfers, "thus passing costs on to the provinces."

"Economic conditions may change, but the health-care requirements of Canadians will continue," said the Red Book. "It is essential to provide financial certainty and predictability for our health care planning."

"A Liberal government will not withdraw or abandon the health care field. That would be to accept the notion of a two-tier health-care system: one for those living in more advantaged provinces, and an inferior system for those living in the less advantaged provinces. Liberals cannot and will not accept a health-care system that offers a higher quality of care for the rich than for the poor."

By the time Mr. Martin, as the newly installed prime minister, made reducing wait times the central pledge of his campaign in the 2004 election, it was too late. On the hustings, he promised to make the issue the "fight" of his political life.

"For too many Canadians, care delayed is care denied," he said. "That is the challenge of our time and we will meet that challenge. I give you my word."

"We are going to do as a nation what we did with the deficit. We are going to gather together a great national will. And we are going to take on a task that others think is impossible."

But by the time he reached a health accord with the premiers last September, the system had already badly deteriorated.

Mr. Martin gave $41 billion more to the provinces over the next decade, and all governments have vaguely promised to develop "benchmarks" by the end of this year on how long patients should have to wait for various medical treatments.

Once they do that, they will develop "multi-year targets" on how it will take them to reduce wait times to those benchmarks. In other words, it could be years before wait times are significantly reduced. And for those provinces that refuse to meet their own targets, there is no threat of punishment from the federal government.

In reacting to yesterday's court decision, Mr. Martin played down the consequences.

"We're not going to have a two-tier health care system in this country," he said, reciting the standard Liberal pledge. "Nobody wants that."

However, few people are buying Mr. Martin's rhetoric any more, particularly in light of the court ruling which will clearly allow two classes of patients in Quebec -- those who can afford private insurance, and those who can't.

By comparison, nobody was disputing Mr. Martin's other observation: that the court ruling will "accentuate" how important it is for governments to move on their pledge from last September.

Indeed, Dr. Albert Schumacher, president of the Canadian Medical Association, was the most succinct: "We're far behind getting a solution. This is going to crank up the speed of the treadmill significantly."

And Senator Michael Kirby, who led a Senate committee that examined medicare, said many of the key players in medicare -- governments and doctors -- are all to blame for not doing enough to reduce wait times.

"I think governments and service providers will say 'Holy cow, if we want to prevent a parallel private system, we better improve the public system.' It puts a huge sword over their heads."

Just as the courts have determined Canadian public policy on fundamental issues such as gay marriage, judges are now driving the agenda on the future of medicare. They have stepped in where politicians, for far too long, refused to tread.

Health Care at the Crossroads
© The Ottawa Citizen 2005