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 final entry, he identifies methods for the provinces to improve their efficiency while still complying with the Canada Health Act.

Michael Watts, Oct. 16, 2014, The Telegraph-Journal

It is undisputed that provinces have the sole authority to create, manage, and reform their individual health insurance programs. Aside from a few discrete areas, the federal government's authority is limited to its ability to withhold portions of the Canada Health Transfer from provinces... in the Canada Health Act.

As one legal scholar succinctly stated: "the Act does not create a legally binding set of obligations on either the federal or provincial level of government.... The federal government can change the legislation at any time while the provinces are in no way breaking the law if they implement practices contrary to the Canada Health Act." As a result, the Act "provides considerable latitude for provinces to experiment with reforms, especially given that the Act embodies a much less restrictive model than either its critics or its supporters often portray."

From a legal point of view, the provisions of the Act leave far more room for movement and change than most people believe. A plain legal reading shows that the provinces must meet five program criteria and two conditions in order to receive funding.

The five criteria required by the Act are: public administration (section 8); comprehensiveness (section 9); universality (section 10); portability (section 11); and accessibility (section 12).

Essentially, the public administration requirement means that a provincial health insurance plan "must be administered and operated on a non-profit basis by a public authority appointed or designated by the government of the province." Comprehensiveness means that a provincial health insurance plan "must insure all insured health services provided by hospitals, medical practitioners, or dentists, and where the law of the province so permits, similar or additional services rendered by other health care practitioners." Universality means that a provincial health insurance plan "must entitle one hundred per cent of the insured persons of the province to the insured health services provided for by the plan on uniform terms and conditions." The accessibility requirement effectively means that a provincial health insurance plan must provide for insured health services "on uniform terms and conditions and on a basis that does not impede or preclude, either directly or indirectly whether by charges made to insured persons or otherwise, reasonable access to those services" by insured persons.

An analysis of what is "medically necessary" or "medically required" is key to interpreting the Act and provides great opportunity for the provision of health care services by the public sector.

The Act does not provide a definition of "medically necessary" or "medically required" and the courts have not developed a universally applicable definition either.

It is vital to note those areas where the Act remains silent or, put another way, those subjects over which it provides zero power to withhold funding from the provinces. Each of these items opens numerous possibilities for those provinces that wish to pursue innovative means to bolster and improve their health care systems.

* The Act does not dictate how insured health services must be provided.

* It is silent as to who may provide the services (for example, it does not discuss how health care services in a hospital should be divided up between physicians, registered nurses, and other health care providers).

* It does not require physicians either to opt in or opt out of the public health system. Furthermore, the Act does not take a stance as to whether a physician may work both inside and outside the provincial public insurance program.

* The Act does not discuss whether fees may be charged for non-insured health services.

* It says nothing about whether insured health services must be delivered by public entities (or not-for-profit entities) only.

* It does not prohibit a province from adding other types of health services (services other than hospital services and physician services) to its list of insured health services.

For example, a province could reduce the use of costly hospital services by investing in preventative medicine, pharmaceuticals, home health care, and other services which would cost less and, evidence suggests, provide more appropriate care and achieve better results for a vast number of patients.

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 theMacdonald-Laurier Institute and syndicated by

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