As part of the release of MLI’s "Debunking the Myths: A broader perspective of the Canada Health Act", author Michael Watts has written a series op-eds on the subject.

In the second entry, he examines how the overblown discussion surrounding the Canada Health Act is impeding the progress towards health-care reform.

Michael Watts, Oct. 12, 2013, The Telegraph-Journal

As a brief piece of legislation, with narrowly-tailored applicability and limited enforcement powers, the Canada Health Act (CHA) has taken on enormous proportions in the minds of Canadian citizens and their political representatives. Indeed, it has become a symbol that defines what it means to be Canadian and this symbolic status tends to obscure - or at least distract from - the reality of the Act's provisions.

Over the years, the Canadian public has been subjected to far too much disingenuous commentary from political actors regarding the CHA. Politicians who have challenged the status quo have frequently found themselves vigorously attacked by the self-proclaimed defenders of Canada's public healthcare system. Those bold politicians who have ventured to suggest that innovations or fresh approaches need to be considered have been accused of selling the universal healthcare system down the river, without due regard to the substance of their suggestions or proposals.

On Jan. 21, 2002, when the Liberal Party was in power, The Globe and Mail reported that Deputy Prime Minister Anne McLellan said she had no problem with the introduction of private hospitals in the country, so long as provinces continue to respect the principles of the CHA.

In 2003, Prime Minister Paul Martin expressed the view that provincial experimentation was acceptable:

"In terms of private delivery, I think it has got to be judged on a case-by-case basis which is permitted under the Canada Health Act. The fact is a substantial portion of our system is already privately delivered . . . I certainly would not allow anything that would damage the essential foundations of our healthcare system. But I think that obviously provincial experimentation, best practices, that's the kind of thing that I'm sure the Health Minister will look at."

In April 2004, Federal Health Minister Pierre Pettigrew, appointed to the post by Paul Martin, offered the following comments:

"In recent years, differences of opinion as to how to interpret the [CHA's] provisions, and inconsistent enforcement of its requirements, has resulted in growing confusion and uncertainty as to what the Act does and does not allow . . . I do believe we have a responsibility to clarify its practical meaning in today's terms.With growing interest among the provinces to experiment with new forms of healthcare delivery, we need to ensure that the ground rules for doing so are clearly defined, and that these experiments are closely monitored through a public interest lens.We know the public administration principle of the CHA already provides flexibility on private delivery, but we may need more work to ensure our respective approaches continue to honour the purpose of the Act." (April 27, 2004)

Mr. Pettigrew added: "If some provinces want to experiment with private delivery options, my view is that as long as [provinces] respect the single, public payer, we should be examining these efforts and then compare notes between the provinces. It's up to the provinces to explore . . . ways of delivering [healthcare] but . . . the public administration [principle] does not say everything has to be state-owned." (April 28, 2004)

Mr. Pettigrew's point - that there was room to manoeuvre and experiment with innovation even while respecting the CHA - was factually correct and should have been well-understood and appreciated. Despite that, opposition politicians were quick to jump on the comments and the media did nothing to help clarify matters during the ensuing political firestorm. One news report went so far as to suggest that Mr. Pettigrew's statement signalled a move in the direction of two-tier medicine, and the newspaper used a front page headline which boldly proclaimed that the Liberals were stealing a page from the Conservative handbook. With an election in the offing, the Liberal PMO of the day found itself on the defensive.

A carefully worded clarification was offered in which the minister did not revise his interpretation but stressed that the Liberal Party was solidly behind the CHA and not in favour of private delivery of healthcare services. The media and the opposition saw the stage-managing as evidence of confusion, panic, and backtracking. With that, the attempt to have an honest debate about the CHA was shelved once again.

Since then, no federal politician has dared to go as far as Mr. Pettigrew did in 2004. It is not as if none of today's politicians have a view: back in 2001, when they were members of Michael Harris's Conservative government in Ontario, Tony Clement and Jim Flaherty had each mused about being open to the notion of healthcare user fees. Former Alberta Premier Ralph Klein and his Health Minister Gary Mar invested considerable time in developing a new model for healthcare (the 2001 Mazankowski report, entitled "A Framework for Reform"), but when their resulting "Third Way" proposals began to cause problems for their federal Conservative cousins during the lead-up to the June 2004 general election, Premier Klein deep-sixed any detail regarding the province's plans until after the election. The result was that critics accused both the provincial and federal Conservatives of having a hidden agenda to encourage the growth of a private healthcare system.

Stockwell Day, as leader of the newly created Canadian Alliance, was effectively villainized - entirely disingenuously - by his political opponents over his alleged support for two-tier medi-cine. After witnessing the political demolition of Mr. Day and the reaction to Mr. Pettigrew's honest and apparently too frank assessment of the CHA, it is not surprising that Mr. Clement, Mr. Flaherty, and any other members of Stephen Harper's cabinet who have expressed such views on our healthcare system in the past have lost their voice.

Once they are retired, however, politicians are less constrained and more candid. In 2011, Stockwell Day authored an insightful commentary on the topic. Mr. Day found it ironic that just as caution on the subject was reaching new heights, never had the need for discussion been more evident.

Every elected person understands full well that she risks banishment or ostracization by her party, her constituents, and maybe even family members should she dare touch the Holy Grail of Canada's supposedly "free" healthcare model. Questioning this apparently infallible doctrine that weakly supports our fiscally failing healthcare system is a career-ending decision in the minds of even the bravest elected members.

There is plenty of evidence to support Mr. Day's analysis. The unfortunate result of the disingenuous, poisonous, and hyper-partisan commentary around Canada's healthcare system is that innovative thinking has been stifled and the voices of well-intentioned and thoughtful politicians and experts have been silenced. In the process, many myths have taken deep root.

If legislators falsely believe that their actions are significantly restricted by the CHA, they will fail to consider and implement essential changes and the consequences will be significant for Canadians. If Canada is to introduce reforms which are necessary to improve and perhaps even save its cherished healthcare system, it will be crucial for politicians to stop trying to score political points and engage in a sincere, well-intentioned, and informed political debate. It is provincial laws which impose the penalties on paying or insuring for insured services, not the CHA, but the political imperative not to remove such impediments arises not from the "devil made me do it" threat of sanctions under the CHA, but from assertions that a parallel private system would draw resources away from the public one and lengthen waiting times. This view is contrary to the majority decision in Chaoulliv. Quebec (Attorney General) which accepted evidence that the availability of private healthcare is more likely to enhance the public healthcare system than weaken it (Chaoulli 147-149).

A clear, legal reading of the CHA - as well as a factual analysis of its actual impact on provinces since its enactment in 1984 - shows that the Act is far less restrictive with respect to the ability of the private sector to provide medically-necessary healthcare services (whether publicly or privately paid for) than the Act's reputation would lead people to believe.

It is vital that provincial legislators take a fresh, unobstructed look at what the CHA does and does not allow. The cost of Canadian healthcare has reached unsustainable levels and the gap between what is medically necessary and publicly insured is widening at an ever-increasing rate. Chaoulli lays a foundation for change within the CHA which, in my opinion, has yet to be fully explored.

The CHA currently does not address chronic illnesses and aging populations, which are key to the sustainability of Canada's healthcare system. The purpose of this backgrounder is to illustrate that the CHA does not pose the barrier to allowing for a greater role in payments by the private sector and citizens that one has been led to believe.

One can foresee that, unless the provincial governments implement a legislative, regulatory, and cultural environment which allows Canadians to purchase medically necessary services that the provinces respectively choose not to insure (such as enhanced medical devices, drugs, and/or procedures), the economic pressures being brought to bear on our primarily provincially-funded public healthcare system will lead to a serious degradation of the quality of care being offered.

This, in turn, ultimately will offend a basic principal tenet of medicine: informed consent. Various reasons could be identified for this but, in my opinion, one important factor is that society's perspective of the CHA has been cultivated by public sector entities, which have a stake in preserving the status quo: a public healthcare system that is hospital-centric.

Michael Watts is a partner at Osler, Hoskin & Harcourt LLP and Chair of the firm's National Health Industry Group. This series was written for the Macdonald-Laurier Institute and syndicated by

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