Private versus public health care: where do we stand legally?

by Pro Bono and Edward Hyland

April 28, 2023

RABBLE.CA

After the Supreme Court rejected an appeal in a legal challenge over private medical care, where does that leave the legal protection of public health care?

A gurney sits in a hospital corridor.

 Credit: Miguel Ausejo / Unsplash

In early April, the Supreme Court of Canada decided not to hear the appeal of Cambie Surgeries Corporation and its president, Dr. Brian Day, from a decision of the B.C. Court of Appeal. The B.C. Appeal Court upheld the constitutionality of certain provisions of B.C.’s medicare legislation. These include provisions that prohibit extra-billing, user charges, doctors from practising inside and outside the publicly funded health-care system, and private health insurance, and that cap the fees of physicians who opt out of the public system.

Cambie and Dr. Day had argued in the Supreme Court of British Columbia that the provisions were unconstitutional. Cambie claimed the provisions prevent patients in B.C. from accessing private medical treatment (which would otherwise be available to them in the public system) in circumstances where the public system cannot provide such treatment in a timely way — thereby breaching patients’ rights to life, liberty and security of the person under Section 7 of the Charter of Rights and Freedoms. The B.C. Supreme Court dismissed this argument, a decision which the B.C. Court of Appeal upheld.

Protecting the right to health care

With the Supreme Court’s decision not to hear Cambie’s appeal, where does that leave the legal protection of access to health care based on equity and need rather than the ability to pay? The answer is not clear. The reason is a 2005 Supreme Court decision in a constitutional challenge of Quebec’s prohibition of private health insurance (Chaoulli v. Quebec).

The plaintiffs in Chaoulli made a similar argument to Cambie: the prohibition in Quebec of private health insurance created delays in accessing health care resulting in the risk of significant physical and psychological harm, and even death, thereby violating the plaintiffs’ Section 7 Charter right to life, liberty and security of the person. The Quebec Superior Court rejected that argument, holding that the prohibition of private health insurance respected both Section 7 and Section 15 (the equality provision) of the Charter. The Quebec Court of Appeal upheld that decision.

Chaoulli was overturned at the Supreme Court, in a 4-3 decision. Three of the justices in the majority effectively held that there is a right under Section 7 of the Charter to buy private health insurance. This position was rejected by the three dissenting justices, who held that a prohibition against private health insurance was a rational measure to protect a “…public system founded on the values of equity, solidarity and collective responsibility, [where] rationing occurs on the basis of clinical need rather than wealth and social status.”

The Chaoulli decision was split down the middle. Three justices held that Section 7 of the Charter ensures a right to health care based on the ability to pay. Three justices held that legislated restrictions aimed at preserving a health system predominantly based on need rather than wealth or status are in accord with principles of fundamental justice and therefore not in breach of Section 7 of the Charter.

The Charter’s role in health-care rights

How can we think about legal protection of access to a health care based on equity and need rather than the ability to pay? The Chaoulli and Cambie cases are about how the Charter can inform the protection and guarantee of the right to health care in Canada.

On the one side of the debate: the right to health care is guaranteed under Sections 7 and 15 of the Charter. The right to health is necessary for physical and mental well-being, which, in turn, is necessary to the right to life, liberty and security protected by Section 7 of the Charter. The right to equal protection and enjoyment of health care for disadvantaged and vulnerable groups of people is protected by Section 15 of the Charter.

On the other side of the debate, Section 7 of the Charter protects the right to buy private insurance (Chaoulli). It also protects the right to pay extra for health-care services and to permit doctors to practise inside and outside the publicly funded health-care system in order to permit patients to determine how best to address their own health-care needs (Cambie). And Section 15 of the Charter protects against the discriminatory effects, based on age and disability, of legislated restrictions on private insurance and funding (Cambie).

The Supreme Court has not fully considered the scope of health-related rights protected by the Charter. And while the Court, along with lower courts, has declined to hold that Section 7 of the Charter imposes positive obligations on government, including to state-funded health care, the Court has held that Section 7 may someday be interpreted to include a positive obligation to sustain life, liberty or security of the person. The courts have, however, held that Section 15 of the Charter does apply to health-care decisions that affect the equality interests of individuals and disadvantaged groups.

Against this backdrop of the Charter and health care, are Canada’s obligations under the international human rights regime, specifically the International Covenant on Economic, Social and Cultural Rights (ICESCR).

The ICESCR, which Canada ratified in 1976, recognizes the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, and imposes on Canada the obligation to create “conditions which would assure to all medical service and medical attention in the event of sickness.” As well, governments in Canada are obligated “to guarantee that the [right to health care]…will be exercised without discrimination of any kind as to … social origin, property … or other status.”

A missed opportunity

The path was open to the Supreme Court in Cambie to consider the scope of health care as a legally enforceable right. The Court unfortunately passed up the opportunity to spell out the extent to which the life, liberty, security of the person (Section 7) and equality (Section 15) interests under the Charter are engaged in health-care choices that governments make, and to confirm that these choices fall within the purview of Charter review by the courts.

Specifically, this would have been a wonderful opportunity for the Court to confirm an interpretation of the right to life, liberty and security of the person, and of the right to equality for disadvantaged groups, as including the right to adequate health care based on need, not on ability to pay.