A physician lauds the decision—and the prospect of more private care

DAVID GRATZER June 20 2005


A physician lauds the decision—and the prospect of more private care

DAVID GRATZER June 20 2005




A physician lauds the decision—and the prospect of more private care

I’VE OFTEN WONDERED about what ran through Jacques Chaoulli’s mind when he addressed the Supreme Court of Canada. Standing there, in front of the justices, sharing the room with numerous lawyers, most opposed to his position.

I’ve met him once before. Some years ago, I was invited to a dinner that he attended. My host told me a bit about Chaoulli before the evening—that he was passionate about changing Canada’s health care system. It would prove to be an understatement. But the whole evening was understated: Chaoulli, as I recall, said almost nothing. Once he asked

me to pass the butter. On another occasion, he commented, “There are so few of us”— referring to the fact that both of us were physicians and both had grave doubts about Canadian medicare. That was all the passion I gleaned from this man in two hours.

Perhaps he was just conserving his energy for the long fight that lay ahead, a fight he won last week. With its ruling, the Supreme Court sided with Chaoulli. And Canadian health care will never be the same.

Chaoulli is an unlikely protagonist for this drama. In the 1990s, he opted to practise outside Quebec’s health care system. He charged his patients fees. His practice flourished and eventually he had six physicians working for him. But success didn’t beget success. As his reputation grew, the Quebec medical bureaucracy started to make waves. Eventually, the local regional health board began fining him. His colleagues quit; the practice fizzled. Enraged, Chaoulli began a hunger strike. He abandoned it after a month.

What would be next? He penned a couple of books on the issue—with dismal sales. Finally, he decided on a new strategy: a legal challenge. To that end, Chaoulli enrolled in law school—and flunked out after a term. Undeterred, he sought the support of likeminded people, soliciting donations and hoping for legal representation. He was unsuccessful. Amazingly, he soldiered on, choosing to represent himself in the case. Twice he went to Quebec courts, twice his arguments were dismissed. His legal efforts— costing more than $600,000—were largely funded by his Japanese father-in-law.

But where others may have lost faith, Chaoulli did not. His case focused on one of his patients, George Zeliotis, an elderly

Montrealer who was forced to wait almost a year for a hip replacement. The gentleman was left in agony, taking high doses of opiates. Why couldn’t he pay in Canada and get the surgery faster?

Chaoulli appealed to the Supreme Court and forwarded several strong arguments. His patient, he maintained, ought to have had the right to pay for private health insurance to cover the costs of a procedure obtained in the private sector. Chaoulli based this on the Charter of Rights and Freedoms’

THE familiar cast of characters has begun its fear-mongering, but the disaster scenarios are almost surely fictional

guarantee of life, liberty and security (Section 7), as well as a similar clause in Quebec’s charter. The court hedged on the first issue, but a majority accepted the second argument, striking down two Quebec laws.

Most devastating of all in their decision is the extent to which the justices dismissed the present political debate. Two-tiered health care has become a stigmatized term. Defendants of Canada’s system tirelessly tell us that a private option would destroy the public system. That is, literally, the party line. And the justices didn’t buy it.

Writing in their opinion, Chief Justice Beverley McLachlin and Justice John Major stated: “The evidence in this case shows that delays in the public health-care system are widespread, and that, in some serious cases, patients die as a result of waiting lists for

public health care” (emphasis added). The wording is clear: Canada’s medicare system can kill you. They continue: “The evidence also demonstrates that the prohibition against private health insurance and its consequence of denying people vital health care result in physical and psychological suffering that meets a threshold test of seriousness.” What does the ruling really mean? Medicare defenders are quick to point out that it simply applies to Quebec. And that is true. But remember: in an age of jet travel, private health care anywhere in Canada effectively means that private health care is everywhere. For the Torontonian with a bad hip or a Winnipegger looking for cataract surgery, Quebec and its private option are just a plane ticket away.

More importantly, the Supreme Court ruling almost surely means that health care rights will spread. Neil Seeman, a lawyer who writes extensively on health issues, explains it simply: “This will revolutionize care across the country.” The first domino has fallen. It will take more cases and more rulings, but the process started last Thursday.

And you can tell. Soon after the Supreme Court brought down its decision, the Prime Minister observed that it had affirmed public health care. Reading off the same speaking notes, former royal commissioner Roy Romanow explained: “Canadians should be optimistic that the nation-building values of Canada’s public health care were reaffirmed by yesterday’s ruling.” And, in a literal way, they’re right. After all, the Supreme Court hadn’t banned government spending or forbidden public ownership of hospitals. But the political comments were nothing more than spin for a government that has done nothing on medicare except spin. We can expect more of the same. Perhaps the Liberals will spend the next election campaign wrapped in the flag. They can do that— but there are now limits. After all, the court has spoken.

The familiar cast of characters that defend the Canadian public health care system —the unions, the self-appointed patient groups, the policy analysts—has begun its fear-mongering, predicting doom and gloom. The disaster scenarios are almost surely fictional. A ban on private insurance and private care—what the Supreme Court threw out in Quebec—is unparalleled in the Western world. In Britain, the birthplace of the National Health Service experiment that so impressed Canadians and led to our

medicare, a private option has always been allowed. Even in Sweden, citizens can buy private care. Such parallel systems do not drain public programs any more than allowing private schools has destroyed Canadian public education.

The legal ban of the Canada Health Act is a historic anomaly, an act of clever politics in the dying days of prime minister Pierre Trudeau’s administration, (it didn’t work—the Liberals were voted out of office anyway.) But if it makes for clever politics, it represents confused legal reasoning. Consider: a Canadian suffering from repeated and debilitating headaches can privately pay a naturopath to stick a candle in his ear, but can’t pay for the services of a neurologist to properly treat him.

And there is a larger issue here: the woes

of Chaoulli’s patient are, unfortunately, all too common in Canada. People wait for practically any diagnostic test, surgical procedure, or consultation with a specialist. The doctor shortage is so severe that, in Norwood, Ont., winning the town lottery isn’t a ticket to material wealth. With just one family doctor to service the entire town, the physician will take only 200 new patients over the next four years. As a result, the town held a lottery, with the 200 winners getting an appointment with him.

The plight of Norwood is not unusual. According to Statistics Canada, approximately 1.2 million Canadians don’t have a

family doctor and are looking for one. American companies now routinely advertise in major Canadian dailies, offering timely health care—in the U.S. And then there’s the quiet story of Canadian health care: the proliferation of private clinics operating in, at best, a legal grey area. One of the most successful chain of private clinics, incidentally, is run by the Prime Minister’s family doctor.

My own views on medicare changed only in recent years. I was born and raised in Canada. Like many Canadians, I hadn’t given much thought to medicare, accepting it as the natural order. That changed for me when, training as a doctor, I saw a young woman suffering from cancer. She had spiked

a temperature and required a workup to rule out an opportunistic infection. She came to the ER on a sunny afternoon but there were no beds, so she waited, and waited, and waited. In all, she lingered in the emergency room for more than three days, waiting for a bed upstairs on a ward. I doubt she lived much longer. Surely there could have been better ways for her to spend her time than sitting on a chair in a packed ER.

Many of these issues will, of course, remain in the wake of this ruling. A private option is not a panacea. But it does bring some choice to the issue. If you are in the queue for an MRI, you may soon be able to opt for a private scan at a cost significantly less than your annual auto insurance premium. A bad hip no longer will be a sentence of months confined to your apartment because you can opt for faster care.

Ultimately, health reform will require so much more than simply a private option. Canadian care isn’t failing because of a lack of money or administrators. It’s failing because its basic premises no longer apply.

Medicare has its roots in the British National Health Service, conceived when penicillin was a cutting edge drug and heart surgery was primitive. Douglas Jay, a British MP and intellectual influence of the Labour government of the 1940s, summarized his thinking on government when he wrote: “Housewives on the whole cannot be trusted to buy all the right things where nutrition and health care are concerned. This is really no more than an extension of the principle according to which the housewife herself would not trust a child of four to select the week’s purchases. For in the case of nutrition and health, just as in the case of education, the gentleman in Whitehall really does know better what is good for people than the people know themselves.”

This quotation is hopelessly antiquated. Ours is a consumer-driven society, in an era of high-tech, high-expense medicine. Yet the paternalistic system envisioned by Douglas Jay carries on in Canada today. The times have changed. So must medicare. Chaoulli is an unlikely candidate to have ushered in a new era in Canadian health care. But he has. Now it’s up to the rest of us to push forward.

Dr. David Gratzer is a Toronto physician and author. He edited Better Medicine, a collection of health policy essays published by ECW Press in 2003.