Judicious Choices: Health Care Resource Decisions and the Supreme Court
| Author | Colleen M. Flood and Michelle Zimmerman |
| Pages | 25-56 |
25
Judicious Choices: Health Care Resource
Decisions and the Supreme Court of Canada
colleen m. flo od and mic helle zimmer man
A. INTRODUCTION
Concern over the inability of patients to access new drugs and therapies ap-
pears to be growing. A sharp example of this is that whi le Health Canada has
licensed as safe a number of new intravenous drug agents for the treatment of
cancer, such as Velcade, Alimta, and Zevalin, some provinces have refused to
fund them. ese provinces have judged the d rugs as not of sucient clinical
benet to justify the cost.
For an example of the issue of ac cess to drugs for Fabry d isease, see Canad ian Press,
“McGuinty oers sy mpathy but no cash for expensive drug” e Gl obe and Mail (
February ), online: www.theg lobeandmail .com/servlet/story/RTGAM. .
wdrug/BNStor y/National. See also Lisa Pr iest, “Provinces, Ottawa a gree to drug
therapy for rare illnes s” e Globe and Mail ( May ) A. For an example of the
issue of access to the dr ug Avastin, a treatment for cancer, see Lisa Prie st, “Ruling on
MD’s cancer treatment appealed ” e Globe and Mail ( July ) A. For a disc ussion
on the issue of access to enz yme replacement therapy, Naglazyme, s ee Lisa Priest, “Boy to
get costly drug ; Parents won’t have to move to England to have son’s progressive disease
treated” e Globe and Mail ( July ) A. See als o Lisa Priest, “B.C. to pay exp enses
for living orga n donors” e Globe and Mail ( July ) A.
Velcade is a drug use d to treat multiple myeloma, a cancer of the bone marrow, “A
Patient’s Guide to Velcade,” online: http://mlnm.com/patients/cancer/velcade/patient_
brochure.pdf; A limta is used in the tre atment of lung cancer, online: ww w.alimta.com/
index.jsp; and Zeva lin is used in the treatment of ly mphoma, online: ww w.zevalin.com.
For example, Cancer Care Ontar io and the Drug ualit y and erapeutics Committee have
decided not to fund these d rugs through the New Dr ug Funding Program . When a new
drug, or a new i ndication for an existi ng drug, is broug ht before the Cancer Care Ontario/
Drug ualit y and erapeutics Committee subcommitte e, they obtain externa l reviews on
26 Health Law at the Supreme Court of Canada
Mounting concern about access to new drugs and therapies comes hard
on the heels of a sustained period of concern about waiting times and the now
infamous Chaoulli decision. In Chaoulli, the Supreme Court of Canada ruled
that uebec laws preventing the purchase of private insurance, in the face of
long wait lists in the public system, were in breach of the uebec Charter of Hu-
man Rights and Freedoms. ree of the seven judges also found the ban on pri-
vate insurance in breach of the Canadian Charter of Rights and Freedoms. e
public (as the media reects) appears consumed by worries of accessibility and
the qual ity of publicly f unded Medicare . But simultaneou sly provincial g overn-
ments across the country are gravely worried about the rapidly growing share of
provincia l revenues being absorb ed by health care . So, on the one hand, public
concerns centre on increased accessibility and quality; on the other, govern-
ments’ concerns centre on the increasing share of total resources devoted to
health and, in particu lar, the other areas of governmental spending (education,
development, etc.) squeezed out by health care spending.
Medicare to some extent is the victim of its own success: we are living
longer and healthier lives; medical treatments have advanced; and the overall
quality of care delivered is signicantly higher than it was twenty years ago.
But nonetheless there are very signicant tensions that are straining Medicare,
both pharmacoeconomic s and clinical considerations a nd make a recommendation to the
Drug ualit y and erapeutics Committee. is Com mittee then makes a recommenda-
tion to the Ministr y which, in the case of hospita l-based intravenous drugs, dec ides whether
to make these medicat ions available through t he New Drug Funding Progra m.
Chaoulli v. Quebec (Atto rney General), SCC [Chaoulli].
uebec
Charter of Human Rights a nd Freedoms, R.S.Q. , c. C- [uebec Charter].
Canadian Charter of R ights and Freedoms, Part I of the Constitution Act, , being
Schedule B to the Cana da Act (U.K.), , c. [Charter].
For future projections of health care spend ing as a percentage of , see Ha rriet Jackson &
Alison McDermott, Health Spending: Ret rospect and Prospect, Analytica l Note, Department
of Finance, Government of Cana da (Ottawa: Economic and Fiscal Polic y Branch, Fiscal
Policy Division, ), in which the y predict health care spend ing to be about percent of
by based on projections from t he period –. See also Ontario, M inistry of
Finance, Toward : Assessing Ontari o’s Long-term Outlook (Toronto: Ministr y of Finance,
), which predicts health c are spending to be percent of by . Moreover, the
percentage of the provinc ial budget alloc ated to health care is pred icted to be between and
percent of the provincial budget by . See also the Organ ization for Economic Coop-
eration and Development, Projecting Health and Long-term Care E xpenditures: What
are the Main Drive rs? Economic Department Working Paper (Paris: , ). is
study predicts that Ca nada will spend betwe en . and . percent of on health care
by . For further ana lysis of these predictions s ee Carolyn Tuohy, “uality, Accessibility,
Sustainabil ity: Can We have All ree in Healt h Care?” Presented at the Health Policy a nd
Law Workshop at the University of Toronto, February (unpublished).
Judicious Choices 27
with concern s about quality a nd access on one hand s training ag ainst concerns
about sustainability on the other. Without adequate resolution, these tensions
will destroy Medicare’s core comm itment to redistribution f rom the healthy to
the sick and from the rich to the poor. At the heart of these tensions are ques-
tions of resource allocation: how much should we spend on public health care
relative to other areas of spending, and, in turn, how should we divide these
resources amongst all possible needs and all possible treatments, particula rly as
the treatment options increase? Who should make these decisions, what pro-
cesses should they follow, and what principles should guide them?
What follows begins with a snapshot of how resource allocation decisions
are made in Canadian Medica re. We show how decision-making processes vary
sector by sector. To sum up our ndings, decision-making is generally opaque.
Lack of tra nsparency a llows decision-making on an ad hoc, politicized basis.
We briey then explore what principles should g uide decision-making and
elaborate on our support for three primary principles: Charter values, evidence-
based decision-making, and cost-eectiveness. We then ask what role the courts
should play in helping to improve the cu rrent approach to decision-ma king. We
contend that the Supreme Court of Canada has so far failed in Charter juris-
prudence to engage with the issue of the processes and principles that should
guide decision-making within public Medicare. In Chaoulli, the Court facili-
tated private alternatives for the dissatised, but did not insist on better deci-
sion-making within public Medicare for all Canadians. To some extent, this
is understandable as there are inherent limitations in Charter challenges. We
suggest that the path for ward is to look to a more exible accountabilit y tool,
namely administrative law. We note that thus far we have seen few such claims
in the area of administrative law and conclude with advocacy for reinvigoration
of this important legal means to enhance accountability.
B. HOW ARE RESOURCE ALLOCATION DECISIONS MADE?
We begin with a snapshot of how resource allocation decisions are made. As
our present system of resource allocation decision-making leaves much to be
desired, we then argue that the courts should not automatically assu me the tra-
ditional st ance of extreme deferenc e to governmental deci sion-making.
e Canada Health Act () technically is but a federal spending stat-
ute. Nonetheless, it has taken on a signicant role in political life in that it now
Canada Health Act, R.S.C. , c. C- [].
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