Thanks to last Friday's Supreme Court decision, Vancouver's Insite safe injection site is now legal. That's a fascinating development in light of regulators' hostility to a comparatively benign, but no less innovative, health-care facility, this one located in Whitby, Ont.
The establishment, the Mom and Baby Care Depot, was founded by pediatrician Dr. Karen Dockrill. OHIP pays just $32 to a doctor for a newborn assessment -- which translates into doctor face-time of perhaps 10 minutes. To improve that, Dr. Dockrill created a program that charged $1,500 annually for a host of baby-related services, including two-hour appointments with Dr. Dockrill and her staff. The College of Physicians and Surgeons of Ontario (effectively a proxy of the McGuinty Liberals in the fight against private care) rewarded Dr. Dockrill's creativity by charging her with dishonourable conduct. She faces a disciplinary hearing next spring.
Here's the thing: The Insite decision hinged on Section 7 of Canada's Charter of Rights and Freedoms -- the one that guarantees an individual's "right to life, liberty and security of the person." But Chief Justice Beverley McLachlin's decision goes further than that. It's based on a "right to health" -- one the federal government would have violated by shutting down Insite and preventing injection drug users from accessing the health services offered.
If this right to health allows Canadian junkies to shoot their drugs under medical supervision, doesn't the same right to health allow Canadian parents to raise their kids under medical supervision? And if the public system can't guarantee that right, don't those parents have the right to ensure the health of their babies by paying a little extra?
There is no question that the Mom and Baby Depot improved newborn health. According to statistics provided by Dr. Dockrill, 90 per cent of infants in the general population visit an emergency room before they reach six weeks of age. Of the parents who enrolled in Dr. Dockrill's program, only two per cent went to the ER by six weeks. Only 11 per cent of all five-month-old babies in Mom and Baby Depot's Durham region are exclusively breast-fed, which promotes long-term health by decreasing things like infections. Meanwhile, the proportion of babies exclusively breastfed in Dr. Dockrill's practice was 70 per cent.
Back in 2005, the Supreme Court of Canada cited a similar right to health in the Chaoulli decision, a Quebec case where an individual wanted to purchase a hip replacement that the province couldn't provide him with in a reasonable time period. This ruling opened the way for Quebecers to purchase private health insurance in the face of long wait times. Now the Court is criticizing government's attempts to shut down Insite because it created marked health benefits for its community of users "with no discernable negative impact on the public safety and health objectives of Canada."
Couldn't something similar be said about the Mom and Baby Depot? In the Insite affair, the Court has once again signalled the strength of an individual right to adequate health care. Our governments should follow the Court's leadership by getting out of innovation's way.
This post originally appeared in the National Post, Tuesday October 4, 2011