Participation and Accountability. New Avenues for Human Rights Engagement with the Distribution of Health Resources in Canada

• Author: Alana Klein
• Profession: Assistant Professor, Faculty of Law, McGill University
• Pages: 309-341

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chapter 10

PARTICIPATION AND ACCOUNTABILITY

NEW AVENUES FOR HUMAN RIGHTS

ENGAGEMENT WITH THE DISTRIBUTION OF

HEALTH RESOURCES IN CANADA

alana klein*

A. INTRODUCTION

Concern about the fair dist ribution of health resources in Can ada is grow-

ing. International hum an rights norms appear to require Can ada to move pro-

gressively towards a more equitable distr ibution of health-af‌fecting resources.

However, despite Canada’s celebrated tradition of public health insurance

promising comprehensive, universal, and accessible healt h care, Canada

seems to be moving towards less equ itable health resource distribution.

There are many cha llenges to undertaki ng human rights scr utiny of

the distribution of health c are resources in Canad a. For years, opaque, dis-

aggregated, and overlapping spheres of authority determined the funding,

administration, and delivery of health care ser vices, rendering any kind of

meaningful analysis dicult.1 In addition, human rights methodologies in

Canada and inter nationally continue to wrest le with the content of social

and economic rights (including the right to health) and the appropriate

tools for enforcement. At the domestic level, judicial decisions under the

* Assista nt Professor, Faculty of Law, McGill Un iversity.

1 See Colleen Floo d, Duncan Sincla ir, & Joanna Erdman, “ Steering and Rowing i n

Health Care: T he Devolution Option?” (2004) 30 Queen s’ LJ 156 at 176 [Flood, Sincla ir,

& Erdman].

310 ► alana klein

Canadian Charter of Rights and Freedoms2 suggest room for novel , collabora-

tive approaches towards more meaningfu l constitutional social and eco-

nomic rights enforcement, but these approaches are still in t heir infancy.

At the international level, actors en forcing the human right to the h igh-

est attainable standard of health have, unti l recently, focused on universal

minimum standards,3 resulting in little discu ssion about the distribution

of resources in a developed country like Can ada. Despite these challenges,

recent developments in health care governance in Can ada, dovetailing with

an emergent focus on governance and a socia l-determinants-of-health ap-

proach to the human right to health , may, together, open new possibilities

for human rights analysis of the distr ibution of health-related goods and

services in Can ada.

In this chapter, I brief‌ly ana lyze three interrelated trends in health and

human rights a nd suggest the ways in which they might open new avenues

for human rights scr utiny of the distribution of health resources in Ca nada.

First, I note that court s may be more open to enforcing social and economic

rights claims where legislative frameworks exist to facilitate meaningful

scrutiny. Moreover, judicial actors may be willi ng to encourage and shape

the development of such frameworks, even where they express — as they

have from time to time — an xiety surrounding their institutiona l capacity

to direct resource allocat ion. Second, at the internationa l level, institution-

al and scholarly conceptions of the right to health a re, likewise, expanding

their gaze beyond monitoring States’ health p olicies in search of viola-

tions and towards supporting processes designed to enhance democratic

self-governance in relation to health. Fina lly, Canadian provinces h ave,

over the last twenty years or so, moved towards al locating health ca re re-

sources at the sub-provincial reg ional level, relying on participation- and

accountability-enha ncing governance features to dr ive more responsive

resource a llocation.

However, the turn towards participator y, accountable governance pro-

cesses to ensure fairer di stribution of health resources may not be entirely

positive. For domestic and international huma n rights, as well as in health

care governance itself, the development presents promise but also risk s. The

chapter concludes with a brief discussion of the ways by which the agenda s

of scholars and activi sts might be af‌fected by the turn towards governa nce

as a means for driv ing the progressive realization of the right to health.

2 Part 1 of the Constitutio n Act, 1982 being Schedule B to the Cana da Act 1982 (UK), 1982,

c 11 [Charter].

3 See Kathar ine Young, “The Mini mum Core of Economic and Socia l Rights: A Concept

in Search of Content” (20 08) 33 Yale J Int’l L 113 at 130–31.

Participation and Accountability ► 311

B. HUMAN RIGHTS AND DISTRIBUTION OF HEALTH

RESOURCES IN CANADA

The internationa l human right to health has a clear d istributive dimension.

The International Covenant on Economic, Social and Cultural Rights, to which

Canada is a sig natory, recognizes “the right of ever yone to the enjoyment

of the highest attai nable standard of physical a nd mental health.”

4 Article

12(2)(d) of the ICESCR requires that States take all steps necessary for the

“creation of conditions which would assure to all medica l service a nd medical

attention in the event of sickness.”5 Article 2(2) of the ICESCR adds that the

right to health is to be enjoyed “without discrimination,” and, in particu-

lar, without discrim ination based on “social origin, property, birth or other

st atu s.” 6 The United Nations Committee on Economic, Socia l and Cultural

Rights (CESCR) adds, in its non-binding but inf‌luential General Comment

No 14 on the right to the highest att ainable standard of mental a nd physical

health, that States h ave a “core obligation” to, inter alia, “ensure rights of

access to health facilities, good s and services on a non-discrimi natory basis,

especially for vu lnerable and marginal ized groups,” and “to ensure equitable

distribution of all hea lth facilities, goods and services.”7

Concern over fairness in the di stribution of health care resources i n

Canada is hig h. The Canada Health Act promises prov inces fu nding for

medically necessar y hospital and physician ser vices on the condition that

provinces do not charge people for those covered services, ef‌fectively gua r-

anteeing a core of free health care.8 But the content of this core is con-

testable. Colleen Flood and colleag ues, for example, have questioned the

opaque and physician-interest-driven processes for determining proced-

ures that qual ify as medically necessar y.9 The set of services that ultimately

4 International Covenant on Economic, S ocial and Cultural Rights, 16 December 19 66, 993

UNTS 3, ar t 12(1), Can TS 1976 No 46 (entered into force 3 Janua ry 1976, accession by

Canada 19 May 197 6) [ICESCR] [emphasis added].

5 Ibid, art 12(2d) [emphasis added].

6 Ibid, art 2(2).

7 Economic and S ocial Council, S ubstantive Issues Arising in the Impl ementation of the

International Covenant on Ec onomic, Social and Cultural Rights. G eneral Comment No.

14 (2000) The Right to the Highe st Attainable Standard of Health, UNCE SCROR, 22nd

Session, 2000, UN D oc E/C/12/2000/4, (2000) at para 43 [General Comment No 14]

[emphasis added].

8 Canada Health Act, RSC 1985, c C- 6, ss 7–12 [CHA].

9 Colleen Flo od, Carolyn Tuohy, & Mark Stabile, “W hat’s In and Out of Medicare? W ho

Decides?” in Col leen Flood, ed, Just Medicare: W hat’s In, What’s Out, How We Decide

(Toronto: University of Toronto Press, 2006) at 15 [F lood, Tuohy, & Stabile, “What’s In

and Out of Medica re?”].