11/08/2016 11:38 EST | Updated 11/08/2016 11:52 EST

B.C. Patients' Charter Case Will Spur Overdue Health-Care Reform

Tensed father looking at ill son lying in bed at hospital ward
Morsa Images via Getty Images
Tensed father looking at ill son lying in bed at hospital ward

Even after the fall of the the Berlin Wall, it was possible to find apologists for communism who would insist that the political system responsible for immeasurable human suffering wasn't inherently flawed. There was nothing wrong with communism, you see, it was the implementation that had failed. Professor Colleen Flood's defence of Canada's creaking state health-care monopoly in the Huffington Post last week has a similar air of unreality.

Written with the sententiousness of a party tract, but none of the revolutionary élan, I don't expect many readers followed her plodding piece to its perfunctory end. Fortunately, you don't have to get that far to see the problems with her argument (to use the word loosely): each of the first three sentences contains a factual inaccuracy, and the blog goes downhill from there.

The legal case that has agitated Professor Flood does not "challenge ... the publicly funded Canadian health system," nor does it "allege that medicare violates the Charter." The plaintiffs' constitutional challenge is straightforward: if the government does not provide timely medical treatment, then it cannot at the same time legally prohibit patients who are suffering on long wait lists from taking control of their own health care and arranging treatment privately.

The case targets two restrictions within B.C. law. The first prevents doctors who work in the state system from also working in the approximately 60 private clinics that already exist in B.C., even after they have performed their government-allocated quota of surgeries. The second prevents patients from using private insurance, including the disability insurance that almost 70 per cent of British Columbians have through their employers, to pay for medically-necessary procedures. Together, these legal restrictions act as a state limitation on the choices British Columbians can make about their own health. Importantly, neither is required by the federal Canada Health Act, which the plaintiffs are not challenging.

It's been ten years since provinces were put on notice by the Supreme Court that their wait lists were violating patients' Charter rights.

In the 2005 case of Chaoulli v. Quebec, the Supreme Court of Canada held that similar prohibitions violated the rights to life and security of the person, though for technical reasons that decision was limited to the province of Quebec. In Carter v. Canada, the 2015 case that found a right to physician-assisted death, the Court affirmed the "tenacious relevance in our legal system of the principle that competent individuals are -- and should be -- free to make decisions about their bodily integrity."

This principle, first invoked in the Court's 1988 Morgentaler abortion decision, embodies "a notion of personal autonomy involving ... control over one's bodily integrity free from state interference and it is engaged by state interference ... that causes physical or serious psychological suffering."

To put it simply, the government must not arbitrarily limit the choices Canadians can make about their bodies -- especially when they are suffering acute physical pain, mental distress, and financial hardship on wait lists that can extend well over a year.

This principle of fundamental justice is brushed aside by Professor Flood, the state-funded defender of statist absolutism in health care. Her solution, if it's possible to tease one out of her op-ed is more of the status quo, but better implemented. Great. It's been ten years since provinces were put on notice by the Supreme Court that their wait lists were violating patients' Charter rights. And, despite efforts in all provinces to streamline service, to increase funding at choke points in the system, and to provide incentives for efficiency, the wait times are as long as ever. Now, as the Baby Boom generation enters the most healthcare intensive decades of their lives, our already strained system is threatening to collapse.

Professor Flood's only concrete suggestion is to appoint a "Patient Ombudsman in each province -- with real teeth." (Good thing about the real teeth, as dental care isn't covered under Canada's universal public health system). That's it? Another government official to monitor the current government officials? If that's the best idea that the Director of the University of Ottawa's Centre for Health Law, Policy, and Ethics can come up with, you can start to see why the plaintiffs in B.C. felt they couldn't wait for politically-driven change.

After mischaracterizing the patients' constitutional challenge and a half-hearted swipe at the greed of would-be health profiteers (what would a statist treatise be without one?), Professor Flood turns her foggy glasses to comparable national health-care systems.

She doesn't dispute that Canada's health system falls short of international comparators -- nor could she while staying on the right side of the line between fatuity and fantasy. Even the federal Minister of Health accepts this. In a speech to the Canadian Medical Association last August, Minister Jane Philpott explained that "it's a myth that Canada has the best health care system in the world. ... We spend more per capita on health care than many other countries. What's worse is that, while we do this, we get poorer outcomes for our patients."

As evidence, Dr. Philpott cited a report by the independent Commonwealth Fund that "ranked us second from the last in a study that compared Canada to places like Australia, the UK, France, and Germany." (She was referring to a 2014 study, which ranked Canada tenth out of eleven other OECD countries, and dead last in the category of wait times.)

What Canadians used to be taught from the cradle to believe is a source of national pride has become an international embarrassment.

So, if almost every other developed country is doing better than Canada, while preserving a universally-accessible system for everyone who needs it, why wouldn't we welcome the chance to improve? Professor Flood doesn't exactly say, but she spends the second half her article explaining why it would be impossible to adopt either the U.K.'s two-tiered system (tops of the Commonwealth Fund's rankings) or the Netherlands' insurance-based model.

Airily claiming that "it is purposefully naive to suppose that Canada can easily go shopping among the health-care models of western Europe" to "magically give us a 'European' model," Professor Flood tells reformers to give up before they've even started trying. Sure other systems may work better than ours, her logic goes, but that's the U.K. and the Netherlands (and Australia, Denmark, Germany, Switzerland ... I could go on) and ... well, we're Canada. Not exactly Cartesian in its rigour.

She also fails to explain how the even more radical change to our current system was somehow possible or recognize that transformational policy changes, from a new carbon tax to a new CPP benefit to a new child benefit (and all that in one year), hardly seem to daunt the current federal government.

Like a Soviet factory in the waning years of the Cold War, Canada's monopolistic health-care system is sustained only by propaganda, fudged statistics, and ever-higher spending. To the experts at think tanks like the Commonwealth Fund, who trade in evidence rather than myths, Canada's unique prohibition on private care looks increasingly like what it is: ideological adherence to an anachronism. What Canadians used to be taught from the cradle to believe is a source of national pride has become an international embarrassment.

Fortunately, a new generation used to choice and constant innovation in everything from how they communicate to how they hail a taxi, is in the ascendance. How long can our sclerotic state system of rationed healthcare survive in their world, where "evidence-based" is the lodestar of public policy and disruption the preferred method of change?

If Professor Flood's dogged recitation of the party line is the best that true believers can offer in defence of spiralling costs, Charter-violating waiting lists, and legal bans on patient choice, then maybe we won't have to wait too much longer. Until then, however, the five plaintiffs will continue their constitutional fight for patient choice in a B.C. courtroom. Because, when you are suffering, any wait is too long.

Howard Anglin is the Executive Director of the Canadian Constitution Foundation, which is supporting the constitutional challenge in British Columbia. For more information, please see

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