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.

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