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 first entry, he calls on the provinces to separate the Canada Health Act from the myths that continue to roadblock innovation.

Michael Watts, Oct. 11, 2013, The Telegraph-Journal

Is it illegal under the Canada Health Act for provinces to allow private delivery of care, charge user fees or even allow private insurance? Not in the least, but readers would be forgiven for thinking so based on the rhetoric surrounding proposals for healthcare reform.

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 root. If legislators falsely believe their actions are significantly restricted by the CHA, they will fail to consider and imple[239 191 189 ]ment essential changes.

What is the truth?

To begin with, provinces have sole authority over their own healthcare programs. The federal government's power under the CHA is limited to its ability to withhold portions of the Canada Health Transfer. As public policy expert Gerard Boychuk has written, the Act "neither has nor requires provincial consent and is not legally binding on either party."

And not only are the federal government's powers over the provinces on issues such as user fees and extra billing weaker than most believe, it is becoming less and less inclined to use them. There is little evidence the federal government has ever imposed discretionary penalties on the provinces over failures to uphold the Act, mandatory penalties have declined dramatically over the years, and what few cases go to dispute resolution also tend not to result in reductions in health transfers.

It is vital to note the areas where the CHA remains silent or, put another way, those subjects over which it provides zero power for the federal government to withhold health transfers to the provinces. The CHA:

* does not dictate how insured health services must be provided;

* is silent on who may provide the services;

* takes no stance on whether a physician may work both inside and outside the provincial public insurance program;

* does not discuss whether fees may be charged for non-insured health services;

* says nothing about whether insured services must be delivered by public entities;

* does not define "medically necessary services"; and

* does not prohibit a province from adding other types of services to its list of insured health services.

Not only does the law allow for major reforms to how healthcare is delivered, it arguably requires them. Any provincial system that creates a monopoly over the provision of healthcare and creates barriers to access that jeopardize citizens' Charter rights (such as the rationing of care) is subject to a constitutional challenge.

The landmark case of Chaoulli v. Quebec (Attorney General), which was decided by the Supreme Court of Canada in 2005, provides an excellent example of how the CHA is less restrictive than most people believe it to be. This case, which has significance for the entire country, makes the powerful statement that if a vital health service is not provided by the government, an individual has the constitutional right to pay for the service either directly or through private health insurance. Although the facts of this case focus on a patient's right to have timely access to medical services, there are other implications, such as a patient's right to access medically necessary services that the government chooses not to in[239 191 189 ]sure. The majority of the Supreme Court held that Quebec's law prohibiting private insurance for medically necessary hospital and physician services violated the Quebec Charter, and that lengthy wait times and delays in obtaining treatment cause patients both physical and mental harm.

Chaoulli has created the foundation to dramatically alter the landscape of the Canadian healthcare system, essentially standing for the proposition that the status quo no longer is a viable or even a legal option.

Chaoulli was definitive confirmation that the Charter provides protection against government inaction, as well as protection for Canadians when government acts in violation of guaranteed rights and freedoms. If governments wish to be the exclusive providers of healthcare services in a "public" system, they must provide healthcare in a manner that does not deprive individuals of life, liberty, or security of the person. As Chief Justice McLachlin wrote for the majority in Chaoulli, "access to a waiting list is not access to healthcare."

The following series of commentaries, which will run over the coming week, is asking Canadians to open themselves to considering major reforms to how our healthcare system works. The series comes at a time when it's becoming increasingly clear that Canadians are getting sub-optimal results from a system that is placing an enormous and ever-growing financial strain on provincial treasuries.

The Canada Health Transfer (the source of federal funding for healthcare) has been renewed, but the rate of increases will be reduced over time. Funding that no longer keeps pace with expenditures combined with Ottawa's hands-off approach means provinces have increased responsibility to provide the publicly administered, comprehensive, universal, portable, and accessible healthcare required by the CHA.

In order to make real change, however, we must shed our illusions about what is and what is not possible. Timid politicians and vested interests are content to hide behind the Canada Health Act (CHA) when faced with calls for change. But as this series will demonstrate, the CHA does not pose the barrier to reform that we have been led to believe it does.

In order to provide timely, medically necessary care to Canadians who need it in the future, the provinces will have to act boldly, and to do that they will need to separate Canada Health Act myths from reality.

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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