Health Care News - Quebec Supreme Court Decision
Chaoulli and Zeliotis vs. Quebec
Gordon R. Hart, Partner, Employee Benefits & Pensions

On June 9th 2005, the Supreme Court of Canada released its ruling on Chaoulli and Zeliotis vs Quebec. The ruling makes it unconstitutional in Quebec to prevent individuals from purchasing private health insurance for medical services covered under the Quebec provincial health plan.

The decision provides that waiting lists violate rights granted under the Quebec Charter of Human Rights and Freedoms. Although this creates an opportunity for private health insurance, there is a message regarding change necessary to the public policy. Before jumping to conclusions over the possible outcomes of the Supreme Court's decision on health care, individuals should take time to read the full decision.

Private insurers may take this opportunity to consider moving into the Quebec marketplace, but unless there are clear profits to be gained, further action is unlikely. At this point, other than those who are sick and wishing to jump the queues, what market exists? Would insurers really make money on queue jumpers?

Six provinces including Ontario are legislation preventing private insurers from reimbursing for services covered by the public system. Half prohibit public funding of private services. The underlying theme is to avoid the possible drain of resources from the public system by private interests.

The greatest consequence flowing from the Court's decision may not come from the ruling that strikes down Quebec's prohibition on private health insurance, but from the Court's argument that unacceptable waiting lists are a violation of the Charter rights. Four of the seven judges say a violation of the Quebec Charter exists and three say there is a violation of the Canadian Charter. That may open the door to further cases regarding the role of private health care providers.

The threat to Medicare doesn't come from private health insurance, it comes from governments who will use the Supreme Court decision as a signal that the court approves private clinics and queue jumping based on ability to pay. The OECD working paper on private insurance in France notes that "the demand for private health insurance has increased, at least in part, in response to deterioration in the extent of public coverage for certain types of care." Provincial governments were cutting public coverage for "certain types of care" (physiotherapy, eye exams, chiropractic, and medically necessary services as a result of longer waiting lists) long before the Supreme Court decision. It is ironic that the decision, which was driven by the argument that wait lists are a violation of the Charter, may end up being responsible for further deterioration of care. If provincial governments are serious about supporting single tier health care, they must make the public system good enough so that there will be no effective demand for private alternatives.1

Many fear the US system of private insurance, but this is nothing more than fear mongering. A made in Canada solution with public-private partnerships could provide effective and efficient solutions to the long waiting lists of services that may not be deemed as “medically necessary”.

The healthcare debate is one filled with passion and divisiveness, and the Quebec Court's decision will likely not lead to any rapid change. But it is important for employers to have an eye for the future. This means that existing contracts and agreements should be reviewed to ensure that obligations are not automatically extended to a private care system without mechanisms to ensure that the original intent of the contract is maintained.

Consideration should be given to the continued downloading of the public system to the private insurance marketplace, and the workforce pressures to replace the services within the employee benefit programs.

Should you have any questions about how the recent Quebec Supreme Court decision will impact your employee benefit program, please contact your Selectpath consultant or client care member.

1 Excerpt from The Court and Medicare - David D. Schreck

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