Litigating for Health Care Reform in Canada: a Recap of the MLJH annual Colloquium

Posted By Laura Crestohl and Katarina Daniels – Mar. 28, 2014

The McGill Journal of Law and Health hosted its 6th annual colloquium on February 22nd, 2014. Entitled “Litigating for health care reform in Canada: How new legal challenges aim to extend Chaoulli’s scope, the event attracted a diverse audience including medical students and health care professionals, law students and legal practitioners, political scientists, policy analysts, and members of the general public concerned about health care access.

Part 1 of our recap will cover the first two speakers: Me Philippe Trudel, who represented George Zeliotis in the Chaoulli case and Jasmin Guénette of the Montreal Economic Institute.

PHILIPPE TRUDEL: On the importance of Chaoulli

Me Trudel of Trudel & Johnston started off the colloquium with his reasons for taking on Mr. Zeliotis’ case pro bono: first, that the waiting times in hospitals were unacceptably long, and second, that the wealthy and well-connected were often jumping the list by going through the private system. His research had found that these trends were not isolated, but could be found in all areas of medical practice. Surgeons were wasting their times managing waiting lists instead of treating patients, and resources were not being used effectively.

Me Trudel surprised many who were under the misconception that Mr. Zeliotis and Dr. Chaoulli were seeking privatization of the healthcare system; instead, he clarified that his client was in favour of a public healthcare system that is “complete, efficient, and accessible,” with private care available as a back-up. This contrasted Dr. Chaoulli’s argument for a full free market system, and in fact this conflict of interest led them to part ways. By contrast, Mr. Zeliotis and Me Trudel’s concern was with the province’s preaching of “l’égalitarisme”. A policy shared by communist Cuba and North Korea, the policy states that if you cannot get a service through the public system, you cannot get it at all. He compared it to forbidding children from eating breakfast at school because the school could not afford to feed them all, as opposed to allowing parents with means to send their children to school with breakfast, thus offsetting costs for the school.

According to Me Trudel, the effects of Chaoulli are largely being felt now. Specialized medical centres have been introduced to deal with wait lists – so-called “private logic within the public system”. Today, less than 1% of all physicians in Quebec have left the public system and are paid privately. Information on waiting times is also now openly available.

Still, Me Trudel anticipates new challenges in the next 10 years. Resources are limited, and Quebec is currently financing the health care system with deficits. Any improvements, Me Trudel argued, will not last. He blamed union rigidity, in part, among other constraints which make it difficult to improve efficiency in the public sector. Politicians, for their part, fear losing elections if they re-open this debate.

In his conclusion, Me Trudel argued that having a private back-up system is not a zero-sum game. Allowing someone with means to use their own resources does not mean less resources in other areas, rather, it allows someone else to move up the waiting list in the public sector. It is not perfect equality, which is the ultimate goal, but it is a step forward.

JASMIN GUENETTE: market solutions to improve the health care system

Jasmin Guénette of the Montreal Economic Institute used a comparative approach to highlight potential steps that Quebec could take in order to improve the health care system and reduce wait times. In particular, he highlighted the importance of having both public and private options for citizens.

In Sweden, a “social democratic paradise”, 26% of health care is provided by private institutions, which are then paid back by the government for services rendered. This contrasts Quebec which currently works on a fixed budget model. This model, according to Guénette, is inefficient and contributes to waiting-lists. A recent announcement by the Quebec government that it will move towards a more activity-based system was, for Guénette, a good step forward.

Guénette then moved on to his primary focus – the comparison between Quebec and Switzerland. He had spent a good deal of time investigating how public and private hospitals work together to provide health care in Switzerland; his research was summarized in a short documentary available here)

The conclusions drawn from his research highlight the importance of promoting freedom of choice for patients and competition between providers. He made the following recommendations: (1) allowing mixed practice to allow medical practitioners to practice in both the public and private systems; (2) requiring the publication of performance indicators for hospitals to allow users to make informed decisions about where to seek health care; (3) to allow private insurance for medical procedures also covered by government medicare.

According to Guénette, private clinics do play a positive role (see this film prepared by the MEI) but only 2% of doctors practice in the private sector. And yet, the largest consumer of private health care in Quebec is the government through the CSST and SAAQ, who choose the more efficient private system to minimize any benefits they have to pay out to employees injured at work or passengers injured in a motor vehicle accident.

Guénette concluded his talk by highlighting the need for reform. Canada is the only OECD country that does not have private for-profit hospitals, and Canadians have accepted the unacceptable for too long. While he cautioned against simply copying European models, he suggested that they may provide inspiration. Canadians should be able to decide how to use their money after taxes, including the possibility of spending it on health insurance and health care. Canadians should build a health care system that encourages entrepreneurship and patient choice. In Switzerland, the most expensive and difficult medical cases go to public hospitals, but the private system takes the burden of the public system in order to allow this. The total GDP spent on health care in Switzerland is about the same as in Quebec, but the Swiss system is more efficient because it is decentralized. Quebec should continue to fund the health care system through taxes and ensure universal health care, but the private system does have a role.

Part 2 of the recap will cover the other three speakers, including: Professor Alana Klein from McGill’s Faculty of Law, Mr. John Carpay of the Justice Centre for Constitutional Freedoms, and Professor Antonia Maioni of the Institute of Health and Social Policy at McGill.

Implications of brain death as a criterion for legal death

Posted By Katarina Daniels – Mar. 16, 2014

Many of our readers and followers on Facebook have been captured by the case of a pregnant Texas woman kept on life support for two months, against her known wishes and those of her husband and parents It took two months for the hospital to finally take Marlise Munoz off life support, and only after a state district judge ordered the hospital to do so. According to the Texas Advance Directives Act, “A person may not withdraw or withhold life-sustaining treatment… from a pregnant patient”. At this point however, the treatment was not, from my understanding, “life-sustaining,” as Munoz had been declared brain dead. This in turn led me to question the definition of brain death, and its implications. Answers quickly followed in the form of this most recent article in the McGill Journal of Law and Health by Jacquelyn Shaw.Definition of brain death
There are two primary ways in which someone will be declared legally dead. The cardiopulmonary criterion holds that death occurs when a person’s heartbeat stops and they stop breathing. This was the primary form of legal death until 1968, when Canada, following an important legal health trend, introduced “brain death” as a legal definition of human death.

From 1968-2003, Canada followed a nearly worldwide trend of defining brain death as the moment where the entire brain, including the brain stem, permanently stops functioning (also known as the “whole-brain” version of brain death). In 2003, the Canadian Council for Donation and Transplantation adopted the brain stem criterion, which holds that total irreversible destruction of the brain stem confirm brain death. While this remains the definition of brain death in Canada today, Shaw notes that this Canadian standard is not followed uniformly across Canada. In addition, it has not yet been picked up by the United States, which still follows the “whole-brain” standard.

Implications of brain death as a criterion for legal death
There is still disagreement on the definitions of brain death and on the rationales for brain death as a criterion for legal death. However, in her article, Shaw finds that an approach focusing on mitochondrial viability “provides a better explanation for the biological process of death” than the brain death approach. According to Shaw, “the mitochondria, and not the brain, are more likely to play a master regulator role in the body,” supporting tissue functioning and providing fuel for all biological processes, including brain activity.[1] In addition, Shaw cites studies that show that mitochondria in the bodies of “heart-beating, brain-dead donors” are still viable, allowing bodily systems to continue functioning.[2]

As a result, Shaw suggests that a brain death approach may be unfair and misleading since the majority of the population equates brain death with death of the “organism as a whole,” which is biologically inaccurate. A major concern for the author is consent and the possibility that consent for organ donations or removal from life support may be vitiated by this inaccurate and somewhat distorted understanding of death.

The solution provided by Shaw is to accept brain death as a legal fiction that allows for a legal death. While this may be a more honest explanation, I am not sure I am comfortable with its potential effects. This is especially evident if one considers the Munoz case described above.

Marlise Munoz: A case study on brain death
Between November 26th, 2013, and January 26th, 2014, Marlise Munoz was kept on life support despite having been declared brain dead, because Texas law does not allow a hospital to withdraw life support from a pregnant woman.  Her surviving husband and parents wanted her taken off life support. Under the brain death justification for legal death, someone who is brain-dead is legally dead. By definition, someone who is dead cannot be on life-sustaining treatment – there is no “life” to sustain. Since Mrs. Munoz was dead, her family argued that the law could no longer apply. To the great relief of the Munoz family, a state district judge accepted this argument, and ordered the hospital to disconnect Mrs. Munoz’s life support.

Under Shaw’s arguably more biologically accurate definition, Marlise Munoz was on a path towards death: despite being brain dead, Mrs. Munoz’s mitochondrial activity continued to power her bodily systems. But who benefits from this “mitochondrial activity”? If Marlise Munoz is not going to wake up again and will not be the same woman that her family remembers, how does labelling brain death a legal fiction help anyone?

Certainly, adding a serious asterisk to the label of “brain death” would, at best, serve to stigmatize those who chose to take a loved one off life support. At worst, it would provide a strong reason for states to amend their definition of legal death (something which Shaw does not actually support, see: Shaw 298). Indeed, in the case of Marlise Munoz, admitting that brain death is a legal fiction would have only benefited anti-abortion activists who were trying to keep Mrs. Munoz alive against her known wishes and those of her family. If fiction, by definition, is something that is not true, then Marlise Munoz could not have been truly dead. The activists could thus argue that the Texas Advance Directives Act should have applied and the hospital should not have taken her off of life support.

How to define death is a debate that appears dangerous to open, and I wonder if the “business as usual” approach dismissed by Shaw (299) would not be more appropriate. Equating brain death with bodily death, although a biological fiction, allows families of brain-dead patients to make a brave and difficult decision knowing that their loved one is legally dead and not legally dead*. It allows them to make a decision without the fear of being judged by others for pulling the plug on someone whose legal status is a legal fiction.  It allows families to make dignified choices and allows their loved ones to die with dignity.

 

For other articles on this topic, please see:
Brain-dead Marlise Munoz taken off life support in Texas hospital 
Erin Anderssen, “The difficulty in defining death”

 

[1] Jacquelyn Shaw, “Of Mitochondria and Men: Why Brain Death is Not the Death of the Human ‘Organism as a Whole’” (2014) 7:2 McGill JL& Health 235 at 273.

[2] Ibid at 293.

Midwifery: a policy win-win – Part I

Posted By William Stephenson

When it comes to perinatal care, midwifery should be the norm, not the alternative. Not only do midwives provide extraordinary care, they do so at a fraction of the cost of obstetric care. Midwifery is a win-win for cash-strapped provinces: it’s good for the women under the care of midwives, and it’s good for the healthcare budget.

A personal perspective

My wife raves about the midwives who cared for her before, during and after our daughter’s birth. They were extremely knowledgeable, some of them drawing on their experience of having delivered over 800 babies, and they communicated this knowledge in a friendly, down-to-earth way. They were warm, empathetic and relaxed. Her visits took place in an inviting setting, dressed up with homestyle décor to avoid the cold, clinical feel. For post-birth visits, the midwives came to our home. Many of the midwives who cared for her had also had children themselves and could therefore directly relate to my wife’s concerns and offer her firsthand advice.

They managed to give this exceptional, very personal care despite the stressful dimensions of their work. Constantly on call, midwives have to try to avoid situations where due dates conflict. This can be difficult, since babies have a tendency not to arrive when expected.

More and more women seem drawn to seeking care from midwives. In our case, my wife was on a waiting list for a brief period of time before they confirmed that they could take her on as a patient.

Regulating midwifery in Canada

 This resurgence in interest in care by midwives comes after the profession relatively recently came out of a regulatory wilderness. While midwifery is a very old profession, it has often been viewed with traces of suspicion. From accusations of witchcraft in the middle ages to statements that midwives were unscientific and a “relic of barbarism” in the 20th Century, midwifery in Canada has been building its good name over the past 25 years.

Prior to the 1990s, midwifery was not recognized as a profession in Canada. Ontario was the first province to do so, in 1991, with amendments to the Regulated Health Professions Act and the passage of the Midwifery Act. Quebec began regulating the profession in 1999, while most other provinces introduced legislation in the 2000s. In provinces which regulate midwifery, a board or college of midwives oversees the profession.

However, the profession is still unrecognized in Prince Edward Island and the Yukon. And New Brunswick, which only established midwifery regulation in 2010, scrapped its program last year, claiming that it did “not seem prudent to introduce a new profession in the midst of systemic change.” Thus, the state of midwifery regulation in Canada is a patchwork at best.

In Ontario, on the other hand, midwives appear to have the government on their side. Ontario recently established two new birth centres, in Ottawa and Toronto, bringing its total to three, including the Tsi Non:we Ionnakeratstha Ona:grahsta’ Maternal and Child Centre located on the Six Nations territory.

Ontario is on the right track. Midwives, with their intensive four-year program, which involves a number of clinical placements, are well equipped to deal with non-complicated perinatal care. The profession’s culture of personal, nurturing care is aligned with the needs of the women they serve. And they provide this level of care at an incredible value. The average midwife in Ontario makes $65 000 per year. By contrast, the average total payments to an obstetrician/gynaecologist is well over $300,000. While the two are certainly not directly comparable, transferring more of the share of perinatal care to midwives would undoubtedly result in lower costs and happier mothers.

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In part II, I will canvass some of the legal and policy issues that are currently facing midwives, and explore potential solutions.

For more information:

Overview of midwifery and the law in Canada

Summary of provincial midwifery laws and regulations