ON JUNE 9, 2005 THE SUPREME COURT OF CANADA released its long-awaited decision in Chaoulli and Zeliotis v. Quebec. The decision will almost certainly have far-reaching implications for the provision of public health insurance across Canada. The issue of whether the Chaoulli case will lead to a twotier system of healthcare or a more significant role for private health insurance is a tough issue to consider when it is looked at from a real-world perspective. A key factor will be whether private health insurance will be affordable and whether it will be able to provide a better product at a competitive price than what is offered by the public system. Experience with employer-provided extended health insurance suggests that private health insurance may not be able to meet this challenge. Dr. Jacques Chaoulli, a Montreal-based physician, challenged Quebec’s Hospital Insurance Act and Health Insurance Act in 1997 following the experience of one of his patients, George Zeliotis. Because of legislation that prohibits private insurance paying for publicly insured medical services, Zeliotis was not allowed to pay Chaoulli to do his hip replacement surgery—a procedure the doctor was willing to carry out. Chaoulli and Zeliotis subsequently argued that the provincial laws prohibiting private insurance for publicly insured services are in violation of section seven of the Canadian Charter of Rights and Freedoms, and of Quebec human rights legislation that contains similar guarantees. The Supreme Court determined that the evidence on the experience of other western democracies with public healthcare systems that permit access to private healthcare refutes the government’s theory that a prohibition on private health insurance is connected to maintaining quality public healthcare. IMPACT OF THE DECISION There is also a technical difficulty with the decision. Three judges found the Quebec Health Insurance Act and Hospital Insurance Act in violation of the Canadian Charter of Rights and Freedoms, and three judges in dissent from the majority found that it did not violate the Charter. The last of the panel of seven judges found this legislation in violation of the Quebec Charter, and did not comment on the Canadian Charter. For this reason, it is uncertain whether the decision actually applies to other provinces, or only in Quebec. Further litigation is expected in other provinces to determine this question. Healthcare is an expensive commodity. And a key point to consider is that if the only or primary consumers of a private health insurance product are people with a health problem who wish to step over waiting lists in the public system, then the cost of any available private insurance product will be very high. The mere existence of a private insurance alternative will not take costs out of the system. It will simply allow those with resources to opt out. If it is too costly for those who wish to step over the waiting list, it will do little to address that problem. From the point of view of employers, private health insurance is unlikely to be viewed as a good alternative to the public system. But accounting rules will make this type of program difficult to implement. While senior executives sometimes receive private healthcare benefits, extending these benefits to all employees would be prohibitively expensive for most employers. Private health insurance is unlikely to be a solution to the problems of our public health system. At its worst, it will complicate matters by creating a false sense of promise. Let us hope that it forces our political leaders to meaningfully address healthcare in Canada. Hugh O’Reilly is a partner with Cavalluzzo, Hayes, Shilton, McIntyre and Cornish in Toronto. horeilly@cavalluzzo.com For a PDF version of this article, click here. |