Since its inception in 1968, Canada’s federally backed medicare system has been considered a centerpiece of the nation’s social security net, a guarantee that people need not forgo treatment or go into debt when sickness strikes. But it has often been a controversial and divisive issue as well. Now, federal department of justice lawyers are preparing to defend medicare against a constitutional challenge that could reopen the often bitter debate over whether all Canadians should have equal access to health care — or whether the quality of medical care should be affected by a patient’s ability to pay. The challenge, launched last month before the Supreme Court of Ontario, called into question the constitutionality of the Canada Health Act, passed by the former Liberal government 16 months ago to penalize provinces that permit extra-billing by doctors or impose user fees for such health services as hospital outpatient visits.
The legal challenge, in which Dr. James McPhee, a family physician in Richmond Hill, Ont., was joined by the 40,000-member Canadian Medical Association (CMA), claimed that the Canada Health Act violates freedoms guaranteed under Canada’s 1982 Charter of Rights and Freedoms, as well as the constitutional division of powers between federal and provincial governments. But critics said the case was an attempt to preserve doctors’ standing as Canada’s highest-paid group at the expense of the poor.
The act at issue was passed—in the face of fierce provincial opposition, but with the support of the federal Conservatives, then the parliamentary opposition—in April, 1984, during the dying weeks of then-prime minister Pierre Trudeau’s Liberal government. The legislation emerged amid protests that the spreading practices of extra-billing and
user fees meant that patients were often paying a second time for health care that they were already financing through federal and provincial taxes or provincial insurance premiums. Ottawa is empowered to deduct from the medicare money it pays to the provinces $1 for each dollar that physicians covered by medicare collect from patients in user fees or extra-billing. The purpose of
the law, as then-health minister Monique Bégin explained at the time, was to “preserve the spirit of medicare” by ensuring that medical treatment is equally available to all Canadians. Since the change of government last September, Health Minister Jake Epp has made it clear that Prime Minister Brian Mulroney’s Conservative administration intends to enforce the act vigorously. Said Epp: “We will very actively protect and support the legislation.”
Since the Canada Health Act came into effect on July 1, 1984, Ottawa has withheld $124 million from seven provinces. Only Newfoundland, Nova Scotia and Prince Edward Island have completely escaped the federal penalties. Three provinces that permit their doctors enrolled in medicare to charge patients more than provincially autho-
rized rates for their services have lost federal funding in amounts ranging from $100,000 a month in Manitoba, where 57 doctors charge extra, to $4.8 million a month in Ontario, where 1,560 of the province’s 13,000 doctors charge patients more than the amounts covered under the province’s medicare program.
At the same time, user fees for hospital beds and emergency ward treatment of up to $15 a day per patient have so far led to penalties for four provinces. Since Ottawa’s penalties took effect, federal money withheld has amounted to $35.6 million in British Columbia, $13.9 million in Alberta and $11.4 million in Quebec.
As a way of attempting to persuade provinces to ban overbilling, Ottawa has promised to return lost funding retroactively to provinces that act before April 1, 1987. Already, several provincial governments have responded to the carrot-and-stick tac3 tic. Legislation due to “ come into force this Q week in both ManitoÜ ba and Saskatchewan will ban extra-billing by doctors in those provinces. And Ontario Premier David Peterson has promised to enact similar legislation in the fall if doctors do not voluntarily give up the practice.
While trying to force the provinces to get into line, Ottawa’s pressure tactics present individual physicians with a hard decision. In the provinces where extra-billing is permitted—Ontario, New Brunswick and Alberta—doctors can choose to bill the medicare system for the basic cost of treatment and then charge the patient for an additional amount that the doctor wants to collect. In Alberta one doctor demanded $300 in advance for a therapeutic abortion from a patient on welfare, while in New Brunswick one doctor requires $35 for a checkup for which medicare pays $28. In Quebec, doctors may opt out of the medicare billing system for any patient or
services, charging the patient directly. But once extra-billing is banned by provincial law, doctors must either bill within medicare rates, and no more, or opt out of the system entirely and bill all their patients directly for their total fee (although patients may in turn claim a portion of the fee from medicare), a practice that tends to force a doctor to rely for his income on a relatively small number of affluent patients.
Even though the CMA’s McPhee has been an “opted-out” doctor since Ontario’s medicare system was set up in 1970, he decided to challenge Ottawa’s role in medical affairs because he resents government “creeping in to take control of the profession.” In a statement of claim filed earlier this month before the Supreme Court of Ontario by McPhee and the CMA, the doctors argued that health is a provincial responsibility and charged Ottawa with exceeding its authority in setting conditions on medicare payments to provinces. They also claim that provincial laws that reflect the federal requirements violate the Canadian Charter of Rights and Freedoms by restricting the freedom of patients to choose their own doctors if some opt out of medicare and bill at higher rates. The challenge—which will almost certainly end up before the Supreme Court of Canada—names the federal and Ontario attorneys general as codefendants.
Physicians who support the challenge
argue that the professional and economic freedom of doctors and their patients is at stake. But critics of the medical establishment suspect that McPhee and the CMA have less lofty motives. Dr. Michael Rachlis, a spokesman for the Medical Reform Group of Ontario, an organization of 150 doctors who oppose extra-billing, called the legal challenge “a waste of time and money” aimed at avoiding the will of Parliament so that some doctors can earn more money. Indeed, the CMAbacked lawsuit did not receive wholehearted support from physicians in poorer areas.
Still, the constitutional challenge will be welcomed by governments in provinces where the Canada Health Act is viewed as an irritant. New Brunswick Finance Minister John Baxter has refused to remove a $6-per-visit hospital user fee imposed in July, 1983, for which the province has so far forgone $3.97 million under the Canada Health Act. Baxter claims the fees have restored “discipline” to health care in the province by discouraging people with trivial or imaginary illnesses from going to hospital. In Alberta, where about 25 per
cent of the province’s 2,973 doctors extra-bill, Hospitals Minister David Russell last month defended the province’s willingness to pay penalties of $800,000 a month to protect their right to do so. Extra-billing, insisted Russell, “is providing better health care than the assembly-line medicine we would get if it was totally banned.” But critics claim that the opposite is true, because extra-billing and user fees threaten the principle of universal access to health care for all Canadians. Patrick Johnston, executive director of the National Anti-Poverty Organization, charges that extra 5 fees force many lower-in| come Canadians to forgo ? needed medical atten« tion. In Alberta, Richard § Plain, a spokesman for o the Consumers’ Associag tion of Canada, says that 2 many doctors ignore ethical guidelines against extra-billing of low-income patients, and cited a March report by the Alberta College of Physicians and Surgeons which found that 800 of its doctors had extra-billed to patients on welfare.
As four senior justice department lawyers went to work last week on a defence of Ottawa’s right to penalize provinces for extra-billing, staff at McPhee’s family clinic north of Toronto made out bills for his private patients. But just an hour’s drive away, on a tree-lined side street in the town of Dundas, Ont., another physician expressed concern about the possible consequences of McPhee’s crusade. Said Dr. Robert James, who witnessed the effects of medicine on a strictly user-pay basis when he worked at a clinic in Marianna, Ark., in 1973: “It leads to great injustices. The rich get good attention and the poor do not.”
-CHRIS WOOD, with PETER GARD in St. John’s, MICHAEL ROSE in Ottawa, SHERRI AIKENHEAD in Toronto, GARRY MOIR in Winnipeg, DALE EISLER in Regina, PETER VON STOCKELBERG in Edmonton and DIANE LUCKOW in Vancouver.
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