Canada's high court opens door to sale of health insurance

Toronto -- Canada's Supreme Court struck down a Quebec law banning private medical insurance Thursday, in a decision that represents an acute blow to the national health care system.



The high court stopped short of declaring Canada's publicly financed health care system unconstitutional, but experts across the legal spectrum said they expect the decision to lead to sweeping changes.



Canada is the only industrialized country that outlaws privately financed purchases of core medical services. The Canadian health care system provides free doctor's services that are paid for by taxes. The public has strongly supported the system, which is broadly identified with the Canadian national character.



But in recent years, patients have been forced to wait long periods for diagnostic tests and elective surgery, while the wealthy and well-connected either have sought care in the United States or have used influence to jump medical lines.



The Supreme Court found that waiting lists have become so long that they violate patients' right to "life and personal security, inviolability and freedom" under the Quebec charter of human rights and freedoms, which covers about one-quarter of Canada's population.



"The evidence in this case shows that delays in the public health care system are widespread, and that, in some serious cases, patients die as a result of waiting lists for public health care," the Supreme Court ruled. "In sum, the prohibition on obtaining private health insurance is not constitutional where the public system fails to deliver reasonable services."



"The language of the ruling will encourage more and more lawsuits, and those suits have a greater likelihood of success in light of this judgment," said Lorne Sossin, acting dean of the University of Toronto law school.



Patrick Monahan, dean of the Osgoode Hall Law School of York University in Toronto and a critic of the national health care system, was even more emphatic.



"They are going to have to change the fundamental design of the system," he said. "They will have to build in an element of timely care or otherwise allow the development of a private medical system."



The case was brought by Jacques Chaoulli, a Montreal family doctor who argued his own case through the courts, and George Zeliotis, a chemical salesman who was forced to wait a year for a hip replacement while he was prohibited from paying privately for surgery. Chaoulli and Zeliotis lost in two Quebec provincial courts before the Supreme Court decided to take their appeal.



At a news conference, Chaoulli predicted the decision will eventually apply to all Canada. "How could you imagine that Quebeckers may live," he asked, "and the English Canadian has to die?"



There was no immediate impact on the national system outside Quebec, since the justices split 3-3 on the question of whether the province's ban on private medical insurance violated the Canadian Charter of Rights and Freedoms, Canada's bill of rights, as the two plaintiffs contended. However, experts predicted the decision will have widespread importance.



Margaret Somerville, professor of law and medicine at McGill University, said the ruling "is extremely important" in large part because "the provinces that want to run some form of a complementary private system would probably be able to do so now."



Alberta provincial officials have long suggested that they wanted to develop a private health care system, while private diagnostic and special surgery clinics have been cropping up in Quebec, British Columbia and Ontario in recent years.



The federal government has threatened to hold back financial aid to provinces that press ahead with private health care, but Somerville said it will be less likely to do so now.



Prime Minister Paul Martin responded to the decision by saying that his government is making progress in shortening waiting times for medical services.



"What today's decision does do, however, is accentuate just how important it is to act immediately, how urgent this situation is," he said.



But he rejected the notion that the ruling will bring about fundamental change. "We are not going to have a two-tier health care system in this country," Martin said. "Nobody wants that. What we want to do is to strengthen the public health care system."