Op-Ed: Doctor challenges Canadian health law over private insurance ban

The basic question involved in the court challenge is whether patients should be able to pay for care in private clinics if they cannot get care in the public system. Day’s aim is to strike down the ban on the sale of private insurance for “medically necessary” care as outlined in the Medicare Protection Act and also strike down the law that disallows a physician from practice in both the public and private systems.

The role of private insurance and private delivery of services in the Canadian health care system is actually rather complex. We actually do not have one system but different provincial systems but all of which must conform to requirements of the Canada Health Act(CHA). Much care is not insured in our system such as drug costs, and much eye and dental care. There are supplemental provincial plans covering some of these areas but to a limited degree. The degree of public payment for medical care in Canada is actually less than the average of the 35 member Organization for Economic Cooperation and Development (OECD): As care has moved from hospitals to home and community, it increasingly has been moving beyond the terms of the CHA. International data shows that approximately 70% of Canadian health expenditures are paid from public sources,[4] placing Canada below the OECD average.[5] However, health insurance covers surgery and services, including psychotherapy, in clinics and doctors’ offices as well as dental surgery at dental offices and laboratory tests.

There is already plenty of private insurance available for services not covered under the CHA.

There are also many private clinics most operating under the terms of the CHA but there are others outside the system. Doctors are not required to practice within the system. However, different provinces have different rules for opting out. In most provinces opted out physicians must collect from the patients but are allowed to set their own rate of compensation. In all provinces there are disincentives to opting out: In Manitoba, Nova Scotia and Ontario the financial incentive to do so is significantly dulled because opted-out physicians cannot bill more than they would receive if they were working within the public plan. In every other province, opted-out physicians can set their fees at any level. However, as the status disincentive row in Table 1 shows, all of the remaining 7 provinces except Newfoundland and Prince Edward Island have in place measures that prohibit the public purse from subsidizing the private sector. In other words, patients of opted-out physicians are not entitled to any public funds to subsidize the cost of buying their services privately.

Back in 2005 a Supreme Court of Canada ruling, the Chaoulli case, struck down a ban on private insurance for medically necessary care, but the ruling applied only to Quebec under the Quebec Charter of Rights and the ruling said that the ban was justified if waiting times were not unreasonable. The ruling did not result in a huge jump in sales of private health insurance for “medically necessary care”. There was not sufficient market demand since everyone was covered by the provincial health plan. The number of private clinics who charged patients for services did grow however.

The ruling sheds light on what is one real problem in our system and that is ensuring that patients do not wait unreasonable lengths of time for services. Allowing for private care of the sort that Day recommends would not really solve the problem but make it worse. Day would argue that the private insurance and practice would provide an alternative service. But it would do so only for those who have money to pay for the services. It promotes freedom for those with money to jump queues. At the same time since there would be better compensation in the private sector, doctors in the public sector would have an incentive to spend more time in their private practice.

In a Globe article that favors “opening up” our system to more private delivery government points out that public sector institutions are top clients for work done by private clinics: While both the provincial and federal governments are fighting to maintain the ban on private access to medically necessary care, ironically (or perhaps hypocritically is a better word), most of the surgery done at private clinics is contracted by public-sector institutions such as WorkSafeBC, the Canadian Armed Forces, the RCMP, Indigenous and Northern Affairs and Correctional Service Canada.

Governments give lip service to the CHA and our system but undermine it in practice both by inadequate funding and through encouraging private developments. Governments actually are eroding the system rather than improving and extending it. At the same time, lip service will be paid to it because it is quite popular politically. Even Stephen Harper vowed to support it. The Globe solution is to have more private insurance in the system. This would help the private insurance industry whether it improves the system or not. There will be money to made by providing insurance for medically necessary care.

Edith McHattie, co-chair of the BC Health Coalitiion said: “Today Brian Day is launching a lawsuit against our Canadian health care system. He wants doctors to be able to charge Canadians whatever they want for medical procedures. If Brian Day is successful with this lawsuit, we could see a total surge of private insurance companies that are just waiting to make money.”

Colleen Flood, a law professor at the University of Ottawa, claims that Day’s case is one of the most important constitutional cases ever saying: “Basically, medicare is being put on trial, and will likely be found wanting in many regards. But the question is whether the cure for what ails medicare is more privatization. That’s what Dr. Day is arguing. I don’t think so myself and I think the weight of the evidence is against that.”

Another issue is at stake as well, one that is crucial to our understanding of the rationale behind our healthcare system. Access should be based on medical need not on whether you are rich or poor.Adam Lynes-Ford of the BC Health Coalition said: “.. making space for private health care flies in the face of the core Canadian value that people should have access to medical care based on need, not on ability to pay.” He claims that acceptance of Day’s proposals would mean longer wait times for average Canadians while those with money to pay extra would wait less long.

Day argues that his proposals would lead to shorter wait times in the public system but this is debatable. However, Day is correct in that the present system often involves wait times that are unreasonable, but Dr. Michael Klein a board member of Canadian Doctors for Medicare said: “The system is under stress, but his cure, to insert private health care into the system, is worse than the disease. The waiting lists need to be addressed, but to address them by increasing private health care will increase the waiting lists for those who can’t afford to pay. Because every time a patient jumps the queue, a doctor jumps the queue as well, and that doctor is therefore unavailable in the public system. And this has been true in New Zealand, Australia and elsewhere.”

Klein has practiced medicine in both the US and Canada. The Day case is expected to last about six months.

The wait time issue certainly needs to be addressed but that can be done in part through better funding of the system. A recent summary of wait times in Canada indicates that the situation is not as bad as one might think from the isolated horror cases often used in press reports to show how poorly off we are. The article also suggests ways in which the situation can be improved.

This opinion article was written by an independent writer. The opinions and views expressed herein are those of the author and are not necessarily intended to reflect those of DigitalJournal.com

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