The case for private care – Should the Supreme Court have dismissed Quebec’s ban on private medical services?

Was the Supreme court right to knock down Quebec’s ban on private medical and hospital insurance for services covered by medicare and the ban on private medical services in private hospitals by physicians who are not participating in medicare?

In this second installment of our ongoing e-mail series « Threads, » arguing « NO » is Dr. Gordon Guyatt of the Medical Reform Group and a professor of medicine at McMaster University. Arguing « YES » is Dr. Edwin Coffey, who was an expert witness for Dr. Jacques Chaoulli and George Zeliotis in the Supreme Court case and is a senior fellow at the Montreal Economic Institute.

NO The Supreme Court decision that purports to defend Canadians’ rights to prompt health care places the rights of the affluent above those of ordinary Canadians.

As the court’s minority opinion acknowledged, both the Romanow and Kirby reports concluded, after exhaustive study, that a parallel private system leads to deterioration and longer wait times in publicly funded care. Subsidized by additional funding, a parallel private system draws health personnel from publicly funded institutions. This is particularly worrisome in Canada, where privately funded care will exacerbate the current shortage of both doctors and nurses.

Britain and British Columbia show us the likely immediate consequences. Private clinics will cherry-pick low-risk patients for relatively simple surgical procedures and leave publicly funded institutions to deal with both sicker patients and the private clinics’ complications. Specialists in demand—ophthalmologists and orthopedic surgeons, for instance—will devote less time to deal with those dependent on publicly funded care.

Australia and the U.S. demonstrate what will happen if the process extends further: long waits and poor care across a wide range of services for those without high-priced private insurance. By undermining publicly funded services, the decision compromises ordinary Canadians’ rights to equal access to high-quality health care.

YES My debating opponent is unhappy with the June 9 Supreme Court judgment. He would prefer a continuation of the public sector monopoly in the financing, insuring and delivery of essential medical and hospital services.

He opposes the effective restoration by the Supreme Court’s decision of a parallel private medical, hospital and related insurance sector (private alternatives) for services presently covered by medicare.

His arguments have been raised endlessly in the « public versus private » debates involving medical associations, political parties, think tanks and commissions. They were used in this court case by the attorney-generals of Quebec and Canada, by their five expert witnesses and by interveners such as the Canadian Labour Congress, all of whom defended the legislative prohibition of private alternatives.

The underlying claim—that private alternatives would harm patients in the public system—was unsubstantiated by worldwide evidence, especially from continental Europe. As expert witness for the appellants Chaoulli and Zeliotis, my conclusions in this matter and those of the Supreme Court were in accord.

With private health system funding, innovation and experimentation again legalized in Quebec and Canada, parallel or mixed systems will offer a full range of medical, hospital and related insurance services of the same high quality that continental Europeans enjoy.

NO Far from the monopoly Dr. Coffey suggests, the public sector has little role in delivering health services. Canadian hospitals are private, not-for-profit institutions, and doctors’ offices exclusively private.

The French smoke more than Canadians, but have lower rates of coronary artery disease. Canadians can therefore reduce their risk of coronary disease by smoking more, right? Dr. Coffey’s logic is equally misleading. To the extent that European health-care systems succeed—Europeans feel their systems are in crisis—it is despite allowing small private-pay sectors.

There are several reasons Europeans withstand their private-pay sectors better than Britain, Australia and the U.S. withstand theirs. Europeans rely more on public funding than does Canada: 75% to 85% versus 70%. The European private-pay sector is very small and tightly regulated. It is set within a society with less inequality between rich and poor, stronger social services and without a NAFTA agreement that allows invasion by U.S. health-care corporations.

When Canada follows European models, increases the proportion of health care funded publicly, institutes national pharmacare and home care and a massive investment in public housing, we too might tolerate a small, heavily regulated private-pay sector with relative impunity. Far better just to avoid the problem.

YES Contrary to Dr. Guyatt’s claim—that the public sector plays a minor role in the delivery of medical and hospital services—I suggest that its role is a very powerful one. He who pays the piper usually calls the tune. In this case the public piper pays 98% of physicians’ revenue from delivery of medical services and 93% of hospitals’ revenue from delivery of hospital services.

The public piper also sets the prices, terms and conditions for delivery of services, one of which has been the rationing of public funds, physicians, nurses, and diagnostic and treatment facilities. This has contributed to the impoverishment and deterioration of Canada’s medical and hospital systems.

The main culprits in the successful Chaoulli and Zeliotis Supreme Court challenge were the illegal clauses in Quebec’s medicare legislation, which prohibited private alternatives in medical and hospital services and insurance, and infringed the individuals’ right to life, liberty, inviolability and security. These monopolistic legislative clauses were invalidated by the court’s judgment.

This is a momentous victory for patients, physicians and all future consumers of medical and hospital services and insurance, who treasure the opportunities and responsibilities of health-care freedom that are restored, while still retaining universal medicare coverage.