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Supreme Court Decision on Private Insurance

Country: 
Canada
Partner Institute: 
Canadian Policy Research Networks (CPRN), Ottawa
Survey no: 
(6)2005
Author(s): 
Tom McIntosh
Health Policy Issues: 
Role Private Sector, Political Context, Access, Responsiveness
Reform formerly reported in: 
Guarantee of timely care - implementation delays
Wait List Management
Current Process Stages
Idea Pilot Policy Paper Legislation Implementation Evaluation Change
Implemented in this survey? yes no no yes no no no

Abstract

In June 2005 the Supreme Court of Canada ruled (4-3) that Quebec's legislation banning the purchase of private insurance for services already insured under the public insurance system violated the Quebec Charter of Rights. The court was evenly split (3-3, with one abstention) on the question of whether the Quebec legislation violated the Canadian Charter of Rights (the nation's constitutional bill of rights).

Purpose of health policy or idea

The court decision has re-opened the debate about the appropriate role for private insurers and private payment for services within the Canadian system. Most (but not all) provinces have legislation directly barring individuals from purchasing insurance for those services covered under the public insurance programs (which are funded from general tax revenues plus, in three provinces, premiums paid by individuals). Thus, private insurance was limited to those services not provided by the public system (e.g. prescription drugs received outside of hospitals). 

The court argued that the wait lists experienced by some individuals for some services were so egregiously long that they should be allowed to purchase insurance that would give them access to a private parallel system if the public system could not serve them in a timely manner. However, there are very few private facilities in Canada that could currently provide such services. The longest wait times are associated with joint replacements, cataract removal and advanced diagnostics such as MRIs.

It remains unclear how such a parallel system would work in the absence of such facilities and also whether there is a significant market for such insurance given that individuals already pay to support the public system. 

It is the case, though, that the debate about the necessity and desireability of policy changes that would allow for a parallel private system has begun again in Canada. But given that the Court was evenly split on whether the Quebec legislation violated the Canadian Charter of Rights means that the decision only strikes down the Quebec legislation not similar legislation in other provinces. It will take a subsequent decision on a similar case (likely from another province) to test whether the Court believes the guarantees under the Canadian Charter have also been violated. The Court has also issued a one-year delay in the implementation of its decision to allow the Government of Quebec an opportunity to reformulate its legislative and regulatory framework in a manner that might remove the violation of the Quebec Charter while still limiting, in some manner, access to private insurance.

The Court was also criticized for not taking a look at any of the scientific evidence with regard to wait times in Canada or at the progress being made by provinces in terms of managing those wait times more effectively.

Main points

Main objectives

The Court decision as it stands will only effect the province of Quebec because the legislation was found to violate the Quebec Charter of Rights, not the Canadian Charter of Rights. But it is likely to spur similar cases in other provinces from those wanting to open up the Canadian system more fully to private insurance and to a private parallel system for those with the means to access it.

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Characteristics of this policy

Degree of Innovation traditional rather innovative innovative
Degree of Controversy consensual highly controversial highly controversial
Structural or Systemic Impact marginal rather fundamental fundamental
Public Visibility very low high very high
Transferability strongly system-dependent system-dependent system-neutral

While a parallel private system is not terribly innovative in a comparative sense, it would mark a large departure from the Canadian norm. As such there is significant concern in the public that such a development could occur not as a result of a political decision made by elected officials but as a result of judicial fiat. 

Despite a large amount of public commentary in the immediate aftermath, however, there has not been a great deal of movement on the part of governments to respond directly to the decision.

It is likely that any final determination will have to await a further decision directly dealing with the Canadian Charter which would then have national application.

Political and economic background

All provinces have legislative or regulatory restrictions on private insurance for publicly insured services designed to insure that the "core" of the system (doctor and hospital services) remain publicly financed and administered.  There has, however, been growing pressure to allow a greater role for private insurance and private delivery through private for-profit facilities in some parts of the country. There are a growing number of private diagnostic clinics offering services such as MRI scans in large urban centres which allow individuals to pay out-of-pocket for such scans given the long wait times for MRIs in the public system. There are a few surgical facilities that offer 'day-surgery' for some procedures (e.g. cataracts) but they often rely on Workers Compensation Board clients in order to make a profit as few individuals can or are willing to pay out-of-pocket for the procedure.

Recent national studies, such as the Commisison on the Future of Health Care, recommended renewed investments in the public system to forestall what had been termed the "creeping privatization" of parts of the system.  The federal government and most provinces remain committed to insuring that the public system remains accessible to all regardless of ability to pay, but some provinces, notably Alberta, Quebec and British Columbia, have been more open to allowing private facilities to operate.

Because the Court framed its decision in terms of 'denied access' due to long wait times in the public system, there is an increased focus on how governments have been responding to this issue. In the 2004 First Ministers Agreement, the federal government provided additional funds to the provinces to deal with lengthy wait times  in five key areas. In the wake of the Court decision there have been calls from some stakeholders (e.g. the Canadian Medical Association) to move faster on these issues.

Complies with

The government of Quebec has been given a one-year stay in the application of the Court's decsion to bring its legislation into compliance, but has not yet announced how it will do so.

Purpose and process analysis

Current Process Stages

Idea Pilot Policy Paper Legislation Implementation Evaluation Change
Implemented in this survey? yes no no yes no no no

Origins of health policy idea

The specifics of the case itself revolve around an individual who felt he had waited too long for a hip replacement in Quebec.  He and his doctor challenged the Quebec legislation that barred him from purchasing private insurance that might give him access to such surgery in a private facility -- although no such facility offers such surgery in the province at this time.  The hope was that if there were private insurance available then the facilities to provide the service would follow.

But as already noted, the idea of allowing a parallel private system financed mainly through private insurance for those who can afford has been debated in Canada for the last few decades. There are those who believe that such a system would act as a 'release valve' for pressure on the public system and those who believe it would undermine the integrity and draw resources away from the public system.

Besides the government of Quebec, which defended the legitimacy of its legislation, the federal government also acted as an intervenor in the case on the side of the Quebec government.

Initiators of idea/main actors

  • Government: Both governments defended the legislation
  • Providers
  • Private Sector or Industry

Approach of idea

The approach of the idea is described as:
new:

Stakeholder positions

There had been a relatively strong consensus that since the appellate had lost his case throughout the lower courts in Quebec that he would likely lose at the Supreme Court as well. As such, there was little strong advocacy on behalf of upholding Quebec's legislation prior to the decision and, it should be noted, that attempting to directly influence Supreme Court decisions is difficult to achieve without appearing to be interferring with a neutral body.

At the same time, the Canadian Medical Association was officially neutral in the case -- a reflection of the divisions within the organization on this issue.

In the aftermath of the decision, there has been significant criticism of both the Court and the way the governments involved handled the case by those stakeholders traditionally seen as defenders of the publicly administered and publicly insured system. Health care unions and other health lobby groups, as well as a large number of health policy analysts, have called on governments to find a way around the decision and also to step up activities to bring wait lists under control so as to undercut the ability to use wait times in subsequent cases that might effect other provinces.

Actors and positions

Description of actors and their positions
Government
Federal Governmentvery supportivestrongly opposed strongly opposed
Government of Quebecvery supportivestrongly opposed strongly opposed
Providers
Canadian Medical Associationvery supportiveneutral strongly opposed
Canadian Nurses Assocvery supportiveopposed strongly opposed
Private Sector or Industry
Insurance Industryvery supportivevery supportive strongly opposed

Influences in policy making and legislation

The government of Quebec has been granted a stay in the application of the decision of one year in order to assess its options. It could choose to allow the decision to stand and instead focus on the regulatory framework for private insurance in the province. Alternately, it could seek to amend the legislation such that it would be less restrictive and thus remove the violation of the Quebec Charter. The Court indicated restrictions such as those contained in the legislation could be justified in certain circumstances but did not specify what kind of circumstances or in what way the legislation could be amended to achieve a similar effect without violating the Quebec Charter.

Other provinces with similar legislation are currently seeking legal advice as to whether a successful challenge under the Canadian Charter is possible.  The province of Alberta is looking at what kind of role it might allow private insurers, but despite its past advocacy of a greater private sector role, it has not moved to remove the legislative restrictions it has in place.

There is growing pressure on policy makers to speed up progress on wait time initiatives in order to undercut the desireability of private options.

Legislative outcome

pending

Actors and influence

Description of actors and their influence

Government
Federal Governmentvery strongweak none
Government of Quebecvery strongweak none
Providers
Canadian Medical Associationvery strongneutral none
Canadian Nurses Assocvery strongneutral none
Private Sector or Industry
Insurance Industryvery strongneutral none
Insurance IndustryCanadian Medical AssociationCanadian Nurses AssocFederal Government, Government of Quebec

Positions and Influences at a glance

Graphical actors vs. influence map representing the above actors vs. influences table.

Expected outcome

Given that the outcome of this decision from the Court was generally unexpected, it is difficult to speculate on how this issue will play itself out either in the Courts or in the legislatures in the near future.

Should another case be launched in another province (which is quite likely) then it will face a number of challenges:

1) There will be better efforts to clarify for the courts the nature of the wait time problem in Canada and to marshall the evidence that there is no need to remove the restriction on private insurance;

2) The decision was rendered by only seven justices rather than the full complement of nine because two of the judges were recent appointees who had not heard the arguements put to the Court and thus could not participate in the decision making. How these two justices will come down on the issue is not clear.

3) One of the justices who felt the Quebec legislation violated the Quebec Charter refused to answer the question of whether the Canadian Charter was also violated. Once the legislation fell afoul of the Quebec Charter it was invalid and whether it also violated the Canadian Charter was irrelevant. At the same time, this Justice noted that there were important differences in how the two charters evaluated legislation and the fact that legislation violated the Quebec Charter is no indication of a violation of the Canadian Charter. How she will decide a similar case under the Canadian Charter is unknown.

The overall impact of the decision has been to reignite the debate in Canada over whether a parallel private system should be allowed. Advocates point to such a development as a 'release valve' to take pressure off the public system while critics point to the prospect of resources and personnel being drained from the public system.

Impact of this policy

Quality of Health Care Services marginal rather fundamental fundamental
Level of Equity system less equitable system less equitable system more equitable
Cost Efficiency very low neutral very high

In the immediate short term the decision will only effect the province of Quebec and even there it is not clear what the outcome will be. If private insurers offer coverage to Quebec residents it is likely that there will be few facilities in the province that could provide them (with the exception of high-end diagnostics such as MRIs). And it is likely that such facilities would be limited to the Montreal area where the market might be big enough to sustain them.

If the decision eventually gets replicated across the country then it could mean a much greater level of change to the system. Indeed, one of the biggest concerns is that the decision could allow all ten provinces to create ten potentially quite different regulatory frameworks around private insurance and private delivery of services in private facilities. As such this could result in a further fracturing of the system.

Overall though, it should be emphasized that the decision is neither a clear cut win for those who advocate a parallel system nor a clear cut defeat for defenders of a public financed insurance system. There are still too many variables that can come into play in the coming months and years to make any determination about who has won and who has lost.

References

Sources of Information

For the court decision see:

www.lexum.umontreal.ca/csc-scc/en/index.html, click on "Recent Judgements" and choose "Chaoulli v. Quebec (Attorney General), 2005 SCC 2005.

For further commentary see:

"What the Supreme Court said: the Chaoulli decision", LINKS, Volume 8, Number 3 (Fall 2005) (Ottawa: Canadian Health Services Research Foundation), pp. 4-6 [available on line at www.chsrf.ca]

Tom McIntosh, "No Big Bang: But Wait Times Are Improving" Commentary July 2005, (Ottawa: CPRN) [available on line at www.cprn.org]

Reform formerly reported in

Guarantee of timely care - implementation delays
Process Stages: Implementation
Wait List Management
Process Stages: Policy Paper, Idea, Pilot

Author/s and/or contributors to this survey

Tom McIntosh

Suggested citation for this online article

Tom McIntosh. "Supreme Court Decision on Private Insurance". Health Policy Monitor, October 2005. Available at http://www.hpm.org/survey/ca/b6/4