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The "Right to Health
Care" in Canada.
The Right to Health Care is controversial in Canada. The government commission which was charged by the Parliament with investigating and developing recommendations about this "right" denies the existence of such a legal right in Canada. The Canada Health Act stipulates only that Canadians should have "reasonable access" to insured health services. However, they admit that such a right is widely supposed througout their nation and that indeed most Canadians believe they have such a right. Furthermore some health policy experts in Canada share this popular Canadian view REF-1 and the commission itself in late 2002 recommends a commitment to a guarantee that:
There are two pieces of the puzzle that must be in place in order to make significant progress in reducing waiting times, in renewing the health care contract between Canadians and their governments, and in restoring the confidence of the Canadian public in their health care system. First, governments at all levels must back their words with deeds by committing to a health care guarantee that establishes the right of Canadians to receive the care that they need in a timely manner; and second, this commitment must be applied using the best possible system for managing waiting times.REF-2 [chapter 6.6 potential consequences of failing to implement a guarantee].
Due to the widespread public perception, the acceptance of a guarantee for timely treatment for all medically required treatments and the universal care principles at work in the Canadian system, the official position that there is no legal right to health care in Canada is fairly judged to be controversial. See below for exact wording of guarantees and government guarantees for the care of Canadians. Excerpts from the October 2002 Commission report are included below. These relate to: 1) Do Candians have the right to timely access to needed health care? , 2) individual right to timely health care, 3) inadequacy of public system if timely care not guaranteed.
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The Right to Health Care ** Public Perception or Legal Right?
To begin, it is important to distinguish between a legal right to health care and the public perception of the existence of that right. In Volume Four, the Committee noted the existence of public opinion polls that reveal that Canadians, encouraged by politicians and the media, believe they have a constitutional right to receive health care even though no such right is explicitly contained in the Charter. Nor does any other Canadian law specifically confer that right, although government programs exist to provide publicly funded health services.
The preamble to the Canada Health Act states that:
continued access to quality health care without financial or other barriers will be critical to maintaining and improving the health and well-being of Canadians.
As well, section 3 of the Act provides that the primary objective of Canadian health care policy is:
to protect, promote and restore the physical and mental well-being of residents of Canada and to facilitate reasonable access to health services without financial or other barriers.
These statements from the Canada Health Act, supportive as they are, do not grant a right to health care.
Similarly, international instruments such as the Universal Declaration of Human Rights, 1948, to which Canada is a signatory, speak of the right to a standard of living adequate for health and well-being, including medical care and the right to security in the event of sickness and disability; but they too do not provide a basis for a constitutional, or even legal, right to health care.
Clearly, there is a significant discrepancy between what the public believes and the absence of a legal right to health care. Despite the absence of a legislated right to health care, there is a growing body of literature and court decisions on the effect of the Canadian Charter of Rights and Freedoms in the context of health care. Of particular interest are the implications of section 7 of the Charter for the provision of timely health care in Canada.
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Timely Health Care and Section 7 of the Canadian Charter of Rights and Freedoms
The presence of long waiting lists for certain medically necessary treatments and hence the absence of timely care raise a number of issues, not the least of which relate to the rights and entitlements of patients who are waiting for care. In this regard, in its Volume Four, the Committee posed the following questions:
If a right to health care is recognized under section 7 of the Charter, and if access to publicly funded health services is not timely, can governments continue to discourage the provision of private health care through the prohibition of private insurance?
Is it just and reasonable in a free and democratic society that government ration the supply of publicly funded health services (through budgetary allocations to health care) and simultaneously, effectively prevent individuals from obtaining the service in Canada, even at their own expense?
These questions have provoked considerable debate that, in the Committee’s view, has significant implications for the Canadian health care system, as we know it. Indeed, the Committee raised these questions both to stimulate discussion and to caution governments that policies and laws that restrict, or discourage, access to privately funded health care will be increasingly difficult, if not impossible, to maintain if timely access to medically necessary care is not provided in the publicly funded system.
Thus, in the Committee’s opinion, the failure to deliver timely health services in the publicly funded system, as evidenced by long waiting lists for services, is likely to lay the foundation for a successful Charter challenge to laws that prevent or impede Canadians from personally paying for medically necessary services in Canada, even if these services are included in the set of publicly insured health services.
The Canadian Charter of Rights and Freedoms guarantees certain fundamental rights and freedoms. Section 7 of the Charter states:
Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
Although the Charter makes no explicit references to health care, it has been argued that section 7 has significant implications in the health care question. The section 7 argument is not based on a constitutional guarantee to government-funded health care, but rather on the section 7 rights to liberty and security of the person which, it could be argued, may be impaired if adequate and timely health care cannot be provided in the publicly funded health care system.
These rights, then, could be interpreted to imply that if individuals are unable to get timely care within the publicly funded health care system, governments should not be able to prevent an individual from paying for the service in order to obtain the service elsewhere in Canada. That is, while health care itself may not be a right, individuals do have the right not to be prevented by government from seeking timely health care elsewhere in Canada, if the service cannot be provided in a timely manner within the publicly funded system.
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TIMELY ACCESS - Even though Canadian courts have not yet established a right to health care under the Charter, it is clear to the Committee that, when timely access to appropriate care is not available in the publicly funded health care system, the prohibition of private payment for health services becomes increasingly difficult, if not impossible, to justify. The rights to liberty and to security of the person under section 7 of the Charter are likely to be violated when timely access to publicly funded health care is denied and, simultaneously, Canadians are effectively prevented from obtaining the required care elsewhere in Canada.
The failure to address effectively the issue of the lack of access to timely care is also highly likely to lead to the establishment of a parallel private hospital and doctor system. Therefore, solving the waiting time issue, or lack of timely care problem, is critical if Canada is to preserve the single payer model of health care that Canadians, and the Committee, so strongly support.
It is the Committee’s strong belief that governments should not be passive and wait for the courts to determine how Canadians will gain timely access to medically necessary care. The time has come when governments must address the waiting time problem.
Governments cannot continue to turn a blind eye to the increasing problem of the lack of timely access to health care. They, and the providers of care themselves particularly hospitals and physicians must find a solution to the problem of providing timely access to appropriate levels of health care.
The Committee’s preferred approach to solve the problem of long waiting times, and thus avoid the development of a parallel private system, is twofold: first, more money must be invested in health care for the purposes described in the other chapters of this report; and second, governments must establish a national health care guarantee a set of nationwide standards for timely access to key health services the parameters of which we explore in the next chapter. |
REFERENCES
1 See for example the research paper by Greg Conolly from CEHAT international seminar at http://www.cehat.org/rthcindex.html
2 See Chapter 6.6 potential consequences of failing to implement a guarantee in the October 2002 Parliament commissioned report.
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Read or browse the official Oct 2002 report CLICK HERE |
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