Taking public health care to court

For 40 years, conservative forces have tried – and failed – to convince Canadians that public health care is inefficient and unfair. Now they are attempting a new strategy: trying to win in the courts what they can’t win in public opinion.

The Chaoulli case is often referred to as a crowning achievement by privatization proponents. In 2005, by a narrow majority, the Supreme Court of Canada found that Quebec’s ban on private insurance for insured health services violates the Quebec Charter of Human Rights and Freedoms. The plaintiffs in the case – George Zeliotis, a Montreal patient, and Jacques Chaoulli, a doctor seeking to set up a private clinic – had asked Canada’s top court to strike down sections of the Quebec Hospital Insurance Act that prevent people from buying health insurance for procedures covered by medicare. Their case was backed by some familiar names including the Cambie Surgeries Corporation (which fronts Dr. Brian Day’s private clinic), False Creek Surgical Centre Inc. (another private clinic in B.C.) and a long list of other private clinics in Canada.

Since then, there have been are other examples of people trying to dismantle public health care through the courts: Lindsay McCreith, an Ontario businessman who is challenging the Ontario government for refusing to reimburse US$27,600 he racked up while going to Buffalo for an MRI and brain tumour surgery; William Murray, who is suing the Alberta government for refusing to pay for his state-of-the-art “Birmingham Hip” after medical professionals decided he was not a good candidate for the procedure; and Shona Holmes who also went to the U.S. and paid for faster access at the Mayo Clinic to deal with a non-life-threatening tumour.

The Canadian Constitution Foundation, a Conservative organization that openly wants to use the Charter of Rights to strike down Canada’s so-called “medicare monopoly,” is funding all of these legal challenges.

More recently, a group of for-profit clinics led by Dr. Brian Day launched a lawsuit against the B.C. provincial government to strike down the B.C. Medical Protection Act to allow U.S.-style private insurance companies access to the "health care market" in British Columbia. At the same time, Dr. Day is trying to block the provincial government from auditing the books at his private clinic following patient complaints about unfair billing practices.

Resources:

• Article: Law and Disorder: Conservative activists want courts to strike down public health care, Canadian Perspectives, Summer 2007
• Article: 10 things you should know about the Supreme Court decision on health care, Canadian Perspectives, Autumn 2005