WHAT THE COURT SAID

Two-tier health? Judge for yourself
By Lorrie Goldstein
June 19, 2005

I have been waiting for someone to explain, calmly, why the Supreme Court of Canada voted 4-3 earlier this month to allow private medical insurance in Quebec.

But since critics of this decision have been completely irrational in their skewed analysis of the judgment, accusing the four-judge majority on the court of everything from "faking it" to reviving the "zombie" of two-tier health care, to hurting the health of Canadians, I suppose I will have to do it myself.

The first thing you should know is that contrary to what you may have read elsewhere, these four judges didn't just wake up one morning and decide "hey, let's destroy medicare!" as many defenders of the status quo would have you believe.

Nor did they wake up one morning and exclaim "you know, Mike Harris, Preston Manning and the Fraser Institute are right about private health care!" as some on the right are now boasting.

Rather, the Quebec (and Canadian) government lost this case because they failed to convince a majority of judges on the court that allowing private medical insurance into Quebec (and, by implication, into Canada) would undermine medicare.

Here, in a nutshell, is the majority's logic:

The stated objective of Quebec and (Canada) in passing laws prohibiting anyone from buying private medical insurance, is to protect the public medicare system, which seeks to provide equal access for all to the highest possible quality of health care.

However, what this prohibition has actually achieved, is the opposite of the objective. Far from providing all citizens with equal access to quality health care, the prohibition on allowing people to buy private medical insurance has created a two-tier health care system, rather than the stated goal of preventing one.

Even the government concedes that the top tier is occupied by the very rich, who can afford to pay for their health care privately in the U.S., or in those provinces which allow it. The bottom tier is occupied by everyone else, people who are thus forced to line up in the public system, without any alternative provided by the government, to wait for tests, treatments and surgeries.

People forced onto these waiting lists often have to wait extra weeks, months and years for necessary treatment, resulting in additional pain, suffering and even death.

This is a violation of their right to life and security of the person as defined in the Quebec and Canadian Charter of Rights. Nor is it in accordance with the principles of fundamental justice, as defined in the Canadian Charter of Rights.

Timely treatment

Allowing average citizens the option of purchasing private medical insurance, far from creating a two-tier system of health care, will in fact ameliorate the two-tier system the government has created through its policies of inaction. It will extend to average citizens a method of accessing timely medical treatment, which at present is available only to the very rich.

The governments of Quebec (and Canada) failed to provide convincing evidence that allowing citizens to buy private insurance will undermine medicare. According to evidence presented by interveners in the case (including a Senate committee) a number of western democracies comparable to Canada allow private insurance to exist alongside their public medical systems. In some cases, their public systems are not only comparable to, but in fact offer a broader range of services than in Canada.

If the government wanted to continue preventing average citizens from buying private medical insurance, thus forcing them into lengthy waiting lines for health care without providing any alternative, the onus was on it to show that (a) this was justified, because the policy achieved the greater goal of protecting the stated aims of medicare and (b) the policy, in achieving the goal, was the least intrusive possible into the rights of its citizens.

For the reasons cited above, the Quebec (and Canadian) governments failed to make this case on either front and thus lost.

Nowhere in their ruling do these four judges say that private insurance is a cure-all for what ails our medicare system, that it will eliminate all waiting lists, or that different systems in other countries are perfect. Nowhere do they suggest that Quebec (or Canada) has no right to take steps to defend medicare.

In fact, they say the exact opposite. But they also say these steps must be consistent with the Charter rights of Canadians.

Now, you can agree or disagree with what these judges ruled.

I just thought you should know what they actually said, as opposed to what their hysterical critics are claiming they said.