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

In its current form, does the Canada Health Act (CHA) still allow the federal government to support the development of “strong” public health systems in the provinces and territories? In an earlier text, we showed how federal Health Minister Jean-Yves Duclos’ recent decision to reduce payments to some provinces under the CHA provides an example of the usual misunderstandings about its scope, particularly with respect to the prohibition of private care.

The Canada Health Act does not prohibit private care

Another aspect of Duclos’ letter to the provinces and territories that appears difficult to reconcile with the CHA concerns services provided by professionals other than doctors. The minister says expanding the scope of practice of health workers could improve care, but he expresses concern about patients being charged for medically necessary services and adds “[i]t is my intention to clarify in a separate Canada Health Act interpretation letter that, no matter […] how they receive medically necessary care, they must be able to access these services without having to pay out of pocket.”

It is true that in recent years, as a result of various legislative reforms in Quebec and elsewhere in Canada, the scope of practice of the various health professionals has been regularly expanded. Thus, many services that were only available to physicians in the 1960s, 1970s and 1980s, when the foundations of the CHA and the various provincial and territorial health systems were established, are now available through specialized nurse practitioners and pharmacists, but also other professionals including physiotherapists, nutritionists and optometrists, among others.

In Quebec, Health Minister Christian Dubé’s “Plan Santé” aims to accentuate this “decompartmentalization” of health care professions in order to “promote faster access to relevant care provided by competent resources.”

A law ill-suited to the diversification of the supply of care

Insured health services for the purposes of the CHA refer only to “hospital services, physician services and surgical-dental services.” Physician services are defined as “medically required services rendered by medical practitioners,” while surgical-dental services are those that are medically or dentally necessary and provided in a hospital setting. The term “medical practitioner” refers to “person lawfully entitled to practise medicine in the place in which the practice is carried on by that person.”

The comprehensiveness requirement of the CHA itself distinguishes between physicians and “other health care practitioners”, indicating that the services of the latter should be provided “where the law of the province so permits.” Thus, the provinces would have the final say in this matter.

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It is difficult to see what levers Duclos could use, on the basis of the CHA, to force the provinces to include in the coverage of the public plan the services of non-physician health professionals rendered outside hospitals. This would include all the services that can be provided in private practice by these professionals, as well as those provided through teleconsultation, whether offered directly to patients or through benefit plans offered by employers.

The limits of ministerial statements

In recent years, the Cambie case has attracted the attention of those in Canada interested in the role of the private sector in health care. In this case, the British Columbia courts upheld two measures of a provincial law. Those dispositions are not unrelated to the conditions set out in the CHA as valid in terms of the rights protected by Section 7 of the Canadian Charter of Rights and Freedoms.

The first concerns the prohibition of “duplicate” private insurance, that is, private insurance coverage for services already insured by a provincial public plan. The second is the prohibition on “extra-billing,” which is billing at a higher rate than the public system, with the excess charged to the patient.

The Supreme Court of Canada denied leave to appeal in this case. While this can be taken as validating the analysis of the British Columbia courts, it does not explicitly overturn the Supreme Court’s decision in Chaoulli almost twenty years ago, in which the court was less supportive of restrictions on private services. By a slim majority, the court struck down provisions in Quebec legislation prohibiting coverage by private insurance plans under the Quebec Charter.

Nevertheless, the Cambie case is just one of the recent examples of the for-profit health sector’s interest in developing services funded by patients or through private insurers. Given the shortcomings of public systems stretched to the limit by the pandemic, current technologies that facilitate the provision of virtual care and the possibility of using the “under-exploited” potential of non-physician health professionals represent opportunities for this sector.

In such a context, it is not clear that the federal minister has the declaratory power to expand the scope of the CHA to continue to make a meaningful difference, either through policy or through “epistles” to the provinces. Indeed, it is conceivable that if the courts were faced with a dispute that led them to make specific determinations about the scope of the act, they might draw different conclusions from those that the federal minister seems to favour, on a variety of issues.

In sum, the supply of health services, which continues to diversify, tends to evolve increasingly outside the “hospital-physician” orbit, and even outside the public system. It may be time to update the CHA and better define what constitutes satisfactory access to services within the public system.

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

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Marco Laverdière
Marco Laverdière is a lawyer and associate researcher at the Canada Research Chair on Collaborative Culture in Health Law and Policy and at the H-POD of the Université de Montréal. He teaches in the graduate programs in health law and policy at the Université de Sherbrooke. He is also the executive director of the Ordre des optométristes du Québec. Twitter @m_laverdiere

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