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The Canada Health Act is broad in scope and not always easy to understand in light of the debates surrounding it.

A recent example of this came when federal Health Minister Jean-Yves Duclos announced a reduction in Canada Health Transfer payments to some provinces.

The reason was non-compliance with the Canada Health Act (CHA) with respect to billing patients for diagnostic services. At the same time, Duclos announced upcoming clarification of fees related to certain relatively new forms of care delivery such as virtual care (telemedicine) and services provided by professionals other than doctors.

Such interventions are likely to satisfy those who are concerned with maintaining a strong public health-care system from which patients can obtain services based on their needs rather than their ability to pay. That being said, does the federal minister really have the means to achieve his ambitions on the basis of the CHA?

To answer this question correctly, we must avoid subjective interpretations of the Act, such as the one that regularly appears in the media and that even seems to be conveyed by certain public decision-makers. Instead, we must rely on the exact terms of the CHA, based on the historical context in which it was created and in light of the few indications that the courts have been able to give about its true meaning.

A “landmark law” with limited legal effect

It is worth noting at the outset that, despite its “political aura,” the CHA is not a constitutional statute (like the Canadian Charter), nor is it a typical statute that sets out rules that, if violated, could nullify an action or result in criminal sanctions. As the minority justices of the Supreme Court of Canada pointed out in 2005 in the Chaoulli case, which dealt with the constitutionality of certain limits on the development of private health-care services: “It would be open to Quebec to adopt a U.S.-style health care system. No one suggests that there is anything in our Constitution to prevent it.” (para. 176). Obviously, few Canadians want this.

Nevertheless, the CHA remains a manifestation of a political will – which may fluctuate over time – to achieve the objective set out in section 3 of the CHA, namely, “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.”

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Governments are about to face some very tough healthcare decisions

To achieve this objective, five conditions were set for provinces and territories wishing to receive federal transfers (ss. 7-12): public administration (not-for-profit management by a public authority); comprehensiveness (all medically necessary services); universality (all Canadians); portability (coverage across Canada); and accessibility (barrier-free, including direct patient billing).

Of course, as we have seen again recently, the provinces are certainly anxious to secure federal funds, but it is not clear that a change of direction is totally out of the question. A province that decides to privatize its health-care system to some degree so that services are billed directly to patients could do so without being illegal, provided that it accepts a reduction in the corresponding federal transfers. This could be the case, for example, if a province were to consider that reductions in federal transfers would be offset by an equivalent reduction in the funds it would have to spend on a particular service.

A law that does not prohibit private, fee-for-service health care

Federal statements have said it runs contrary to the CHA to have private health services for which patients would have to pay. But such statements are sometimes difficult to reconcile with what appears to be the CHA’s actual scope. One example is this passage from Minister Duclos’s recent letter to his provincial and territorial counterparts:

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In cases where patients are charged for these services [i.e., virtual medical services], I will pursue a reduction in federal health transfers by an equivalent amount, as authorized by the Act. My officials are always ready to work with yours to discuss patient charge issues.

On the one hand, while the CHA imposes conditions on public systems set up by the provinces and territories, it does not impose a general prohibition on private health services. This is what Justice Deschamps emphasized in 2005 in the Chaoulli decision (paras. 16 and 17):

The Canada Health Act does not prohibit private health care services, nor does it provide benchmarks for the length of waiting times that might be regarded as consistent with the principles it lays down, and in particular with the principle of real accessibility. […]

The Canada Health Act is therefore only a general framework that leaves considerable latitude to the provinces. […] there are many ways to deal with the public sector/private sector dynamic without resorting to a ban.

This is also emphasized in a 2019 study by the Information and Research Services of the Canadian Parliament (pp. 8-9): “[T]here is no requirement in the CHA that a province or territory prohibit medically necessary services from being provided outside the provincial or territorial health insurance system.”

This interpretation is consistent with the fact that since the inception of the public health insurance system in Quebec in the 1970s, it has been possible for doctors to practice completely outside the public system, with the status of “non-participating professional” paid directly by patients, without the latter being able to obtain reimbursement from the public system. In fact, the number of non-participating doctors has grown steadily in recent years. However, federal authorities have never indicated that such a situation violates the CHA.

“Satisfactory” access to medically necessary care

A more plausible interpretation of the CHA would be that transfer reductions can only occur when the public system in a province or territory does not provide “satisfactory” access to medically necessary services and, as a result, a significant portion of the population must turn to services offered outside the public system, by private providers, at the expense of the patients.

Thus, there is no doubt that access to virtual care is covered by the CHA. “Care is care (…) regardless of how insured services are provided,” as the minister stated in the last implementation report of the Act (2020-2021). However, for a reduction in federal transfers to occur, it would not be sufficient to note that care is provided for a fee charged to patients in the private sector. Rather, it would be necessary to show that the public system’s provision of care is unsatisfactory, which appears to be the case in Quebec with telemedicine.

As Justice Deschamps pointed out, this is where the difficulty lies: how to identify what level of accessibility to care would be satisfactory, according to the terms of the CHA? If we were to rely on medically indicated wait times to determine the required levels of access, what should be said about the current wait times for all kinds of care within the public system?

This also raises the issue of care provided outside of hospitals or medical clinics, which is becoming increasingly common. We’ll talk about that in an upcoming article.

This is the first of a two-part series on the role and scope of the Canada Health Act. The second article is available here.