Putting Health To Rights: A Canadian View on Global Trends in Litigating Health Care Rights
| Author | Bryan Thomas & Colleen M Flood |
| Position | Research Associate and Research Manager, Health Law and Policy Group, University of Toronto/Professor, Faculty of Law, University of Ottawa |
| Pages | 49-78 |
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(2015) 1 CJCCL
Putting Health To Rights: A
Canadian View on Global Trends in
Litigating Health Care Rights
Bryan omas* & Colleen M Flood**
e majority of the world’s constitutions now include mention of a right to health or
health care. Will the courts be e ective at championing the health rights of vulnerable
populations? Courts recognize that health systems embody complex tradeo s, and
have struggled to draw a principled line of deference to government decision-making.
Worldwide, one nds courts drawing this line in various ways, depending, among
other things, on their country’s constitutional aspirations, the maturity and internal
accountability of its health system, and broader currents of social mobilization. For their
part, Canadian courts have been very restrained, conceptualizing health rights largely
in negative terms – overturning restrictions on access to abortion, medical marijuana,
and so on – while refusing to recognize any positive duty on the part of government to
provide particular health services. Could Canadian courts do more, without tumbling
into overreach? e paper ends by sketching options for a more robust and progressive
approach to adjudicating health rights claims.
* Research Associate and Research Manager, Health Law and Policy Group,
University of Toronto.
** Professor, Faculty of Law, University of Ottawa.
50
omas & Flood, Putting Health to Rights
I. I
II. T C D A H R
III. H C R C
A. Health Rights and Broader Constitutional Aspirations
B. Health Rights, Judicial Deference, and the Public/Private Divide
C. Health Rights and Social Mobilization
IV. H C R C C
A. Focus on ‘Negative’ Rights
B. Equality of ‘Access to the Basket’
V. A M R R R
VI. C
I. Introduction
The majority of the world’s constitutions now include mention of
a right to health or health care.
1 ough in some countries health
rights are purely symbolic or aspirational, it is often assumed that courts
will play a role in holding governments accountable under these rights.
2
Proponents of a rights-based approach believe (or hope) that “[r]ights
remove discretion from development and provide a framework of
accountability. Rights ensure services for the most marginalised and
vulnerable populations, making it hard to claim progress by reference to
1. O ce of the UN High Commission for Human Rights, e Right to
Health: Fact Sheet No. 31 (Geneva: UN High Commission for Human
Rights, 2008).
2. A recent study nds that approximately 70% of constitutions worldwide
contain health-related guarantees, while the right is justiciable in
approximately 40%. See Courtney Jung, Ran Hirschl & Evan Rosevear,
“Economic and Social Rights in National Constitutions,” Am J Comp L
[forthcoming] at 6-9, online: Social Science Research Network
papers.ssrn.com/sol3/papers.cfm?abstract_id=2349680>.
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numerical aggregates.”3 Will health rights live up to this promise?4
Answering this question is di cult as a thorough comparative
analysis is complicated, perhaps insurmountably, by various confounding
factors. Still, we can marshal what empirical evidence there is and rely on
insights from experts in health law and policy across di erent countries
witnessing the litigation of health care rights. In what follows, we explore
the contextual factors that shape the impact of health care rights, moving
from global trends to the speci cs of the Canadian context. As a starting
point, in Part I (below) we provide an overview of the basic dilemma
facing courts as they venture into the adjudication of health care rights,
namely, the challenge of staking out a legitimate institutional role and
avoiding overreach into areas that are the purview of elected or executive
bodies. is dilemma does not arise in a vacuum, however, and Part II
explores some of the contextual factors that shape courts’ approaches
to the adjudication of health rights, including national aspirations and
constitutional traditions, the maturity of existing health systems, their
mix of public/private nancing and administration and broader currents
of social mobilization. As explained, these contextual factors may partly
explain Canadian courts’ general conservatism vis-à-vis health rights, as
compared to the bolder approach taken by courts in other countries.
Of course, context does not wholly determine the path of health
rights. Canadian courts have made pivotal interpretive choices, which
have seriously limited the e ectiveness of rights as an accountability
mechanism in health care for marginalized groups. Part III explores
Canadian jurisprudence in this arena, focusing on the Supreme
Court’s largely ‘negative’ conception of the rights to life and security
of the person, and its very restrained reading of the section 15 equality
guarantee as it applies to health. To date, these rights have done little
3. Michel Sidibe & Kent Buse, “Global Health Governance After 2015
– Authors’ Reply” e Lancet (21 September 2013) 382:9897, online:
e Lancet
6736(13)61967-4/fulltext>.
4. Our discussion focuses largely on rights to health care, as this has been the
primary focus of litigation in Canada and abroad. For ease of expression
we will occasionally use the terms ‘health rights’ or ‘right to health,’
though strictly speaking this encompasses a broader range of interests (e.g.
rights to public health prevention and equitable health outcomes).
52
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to ensure accountability to vulnerable populations, and indeed the
negative interpretation favoured by the Court is being used to challenge
the legal foundations of universal health care.
5 Even taking into account
the contextual factors that recommend judicial restraint in the Canadian
context, the results have been disappointing. As will be explained, courts
in similarly-situated countries, such as the UK, have had success in
pressing for greater accountability in health care decision-making, while
heeding the concern about overreach.
II. e Central Dilemma in Adjudic ating Health
Rights
ough jurisdictions vary considerably in their approach to
conceptualizing and enforcing health care rights, a basic concern arises
irrespective of context – over the legitimacy of having courts oversee the
allocation of health care resources. Decisions about the allocation of
health care resources are ‘polycentric’ by nature, requiring robust evidence
of complex tradeo s at a systems level,6 while the courts’ institutional
competence lies, it is claimed, in adjudicating discrete con icts between
two parties. As Christopher P. Manfredi and Antonia Maioni argue,
e strength of the adversarial system is its capacity to sort through the
historical facts about past events that transpired between disputing parties in
order to implement retrospective remedies that will restore each party to the
status it enjoyed prior to the dispute. By contrast, general policy formation
requires the analysis of complex social facts about the relationship between
ongoing phenomena in order to regulate those relationships prospectively.
7
Independent Medical Clinics Association v Medical Services Commission of
British Columbia (28 January 2009), Vancouver S-090663 (BCSC) (Writ
of Summons of Plainti s) online: Medicare.ca
content/uploads/2009/05/cimcawrit.pdf>.
6. Lon Fuller & Kenneth Winston, “ e Forms and Limits of Adjudication”
(1978) 92:2 Harv L Rev 353.
7. Christopher P Manfredi & Antonia Maioni, “Judicializing Health Policy:
Unexpected Lessons and an Inconvenient Truth” in James B Kelly &
Christopher P Manfredi, eds, Contested Constitutionalism (Vancouver:
UBC Press, 2009) 129 at 137. See also Kent Roach, “ e Courts and
Medicare: Too Much or Too Little Judicial Activism” in Colleen M Flood,
Kent Roach & Lorne Sossin, eds, Access to Care, Access to Justice: e Legal
Debate Over Private Health Insurance in Canada (Toronto: University
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e dilemma is especially vivid in lower income countries, where scarce
resources often mean that one life can be saved at the expense of another.
South Africa’s Constitutional Court acknowledged this reality in its
often-cited Soobramoney ruling, as it declined to inter vene on behalf of
an elderly patient seeking access to dialysis, underscoring “the danger
of making any order that the resources be used for a particular patient,
which might have the e ect of denying those resources to other patients
to whom they might be more advantageously be devoted.”
8 Institutional
competence aside, there are also separation of powers arguments
against having courts second-guess decision-making by the legislative
and executive branches. Elected bodies are democratically entrusted to
reconcile the diverse interests at play with these polycentric tradeo s, it is
argued, making judicial forays into this area democratically illegitimate.
ere are, of course, replies to these concerns that must be taken
seriously. On the issue of resource allocation and polycentrism, courts
have long interfered in defense of civil and political rights, though this
too has signi cant resource implications.
9 Moreover, outside of the
rights context, courts adjudicate a host of other polycentric issues in law
(e.g. competition law, anti-trust law and division of powers questions).
10
Regarding concerns about the courts’ ability to regulate relationships
prospectively, some have pointed to novel remedies available to courts,
including suspended or delayed declarations of invalidity.11 On the issue
of democratic legitimacy, some have argued that judicial review can in
of Toronto Press, 2005) 184 at 186-88 (arguing against public interest
standing on grounds that it allows abstract claims to proceed, lacking facts
‘that add esh and bone to the case’).
8. Soobramoney v Minister of Health, KwaZulu-Natal [1998] 1 SA 765 at 776
(S Afr Const Ct) [Soobramoney].
9. Kent Roach, “ e Challenges of Crafting Remedies for Violations
of Socio-economic Rights” in Malcolm Langford, ed, Social Rights
Jurisprudence: Emerging Trends in International and Comparative Law
(Cambridge: Cambridge University Press, 2009) 46 at 49 [Roach,
“Crafting Remedies”]; Stephen Homes & Cass Sunstein, e Cost of
Rights: Why Liberty Depends on Taxes (New York: WW Norton & Co,
1999).
10. Je King, Judging Social Rights (Cambridge: Cambridge University Press,
2012) at 198-99.
11. Roach, “Crafting Remedies”, supra note 9.
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fact be democracy-enhancing – e.g. by targeting judicial scrutiny on
government actions undertaken without robust and inclusive democratic
deliberation.12 Together these replies o er a preliminary defense of judicial
involvement in the protection of social rights, including rights to health
care. e thornier challenge is to strike a proper institutional balance –
delivering improved accountability in a manner that plays to the courts’
institutional strengths, while avoiding overreach into areas where the
courts have little or no expertise to add, such as the determination of
what new drugs and technologies should be funded.
Courts themselves are often keen to avoid overreach, or even the
perception of overreach, and this fundamentally shapes jurisprudence
in the area of health care rights. An example commonly cited here is
R v Cambridge Health Authority,13 a UK decision concerning a 10-year-
old girl, diagnosed with terminal leukemia, whose family launched an
administrative law challenge in the hope of securing a further round
of chemotherapy and a second bone marrow transplant – therapies the
Cambridge Health Authority had refused on grounds of high cost and
poor prognosis. In rejecting the family’s claim, the Court of Appeal
explained that,
[d]i cult and agonising judgments have to be made as to how a limited budget
is best allocated to the maximum advantage of the maximum number of
patients. at is not a judgment which the court can make. In my judgment,
it is not something that a health authority … can be fairly criticised for not
advancing before the court.14
12. Alana Klein, “Section 7 of the Charter and the Principled Assignment of
Legislative Jurisdiction” (2012) 57 Sup Ct L Rev 59; Martha Jackman,
“Protecting Rights and Promoting Democracy: Judicial Review under s.1
of the Charter” (1996) 34:4 Osgoode Hall LJ 661. See also Vriend et al
v Alberta, [1998] 1 SCR 493 (per Iacobucci J: “where the interests of a
minority have been denied consideration, especially where that group has
historically been the target of prejudice and discrimination, I believe that
judicial intervention is warranted to correct a democratic process that has
acted improperly” at para 176).
13. R v Cambridge Health Authority, ex parte B (1995), 25 BMLR 5 (QB)
[Cambridge Health Authority QB], rev’d [1995] 2 All ER 129 (CA)
[Cambridge Health Authority CA].
14. Cambridge Health Authority CA, ibid at 137. In the Canadian context,
see e.g. Chaoulli, supra note 5 at para 161 et seq (Binnie and Lebel JJ
dissenting). In the South African context, see Soobramoney, supra note 8 at
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is approach of categorical deference to the resource allocation
decisions of health authorities lies at one extreme of judicial attitudes
towards health care rights. ere is justi able concern that it o ers
insu cient accountability, allowing health authorities to simply “toll the
bell of tight resources,” as the lower court put it in Cambridge Health
Authority.15 At the opposite extreme lies the approach taken in Brazil
and other Latin American countries, where rights to health care have at
times been interpreted as ‘trumps,’ with the judiciary showing little or
no deference to overall resource allocations when ruling on individual
claims.
16 is approach has its own pitfalls, foremost the risk of scarce
health care resources being redistributed under the regressive principle of
‘to each according to their ability to litigate.’ In the end, one hopes that
courts will chart a path between deference and activism that advances
the goals that inspire the right to health – namely ameliorating the stark
inequalities that often exist in health care.
But as discussed in the next section, this path must be charted amidst
various context-speci c factors, which include the speci c wording and
method of enactments of health care rights (e.g. whether by ordinary
statute or as part of a grand vision of transformative constitutionalism),
the design and in-built accountability of a country’s health care system
and the broader currents of social mobilization that inevitably in uence
the interpretation and enforcement of health care rights. As we will go
on to argue, in Canada we have the luxury of a robust public health
care system and thus we are not in the same need as Columbia, South
Africa or India of challenging massive historical inequities.17 us in the
Canadian context a reasonable solution may lie in the courts o ering a
measure of accountability, particularly for vulnerable and marginalized
769.
15. Cambridge Health Authority QB, supra note 13 at 17.
16. Octavio Luiz Motta Ferraz, “ e Right to Health in the Courts of Brazil:
Worsening Inequities?” (2009) 11:2 Health & Hum Rts 33; Octavio
Luiz Motta Ferraz, “Harming the Poor rough Social Rights Litigation:
Lessons from Brazil” (2011) 89:7 Tex L Rev 1643 [Ferraz, “Lessons from
Brazil”].
17. ere are of course serious and systemic health inequities in Canada,
including gaping disparities in health outcomes among the country’s
Aboriginal population.
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populations, while also showing deference both to elected bodies and the
expertise of health authorities.
III. Health Care Rights in Context
Much of the research to date on the impact of health rights litigation
adopts a comparative lens, contrasting the experiences of diverse countries
in search of emerging patterns and workable typologies.
18 Comparative
analysis of case law is an important component of this research, but when
cases are taken out of context, they o er limited and potentially misleading
guidance. For example, Canadian courts have been very conservative – at
times arguably regressive – in Charter cases concerning access to health
care (more on this below). But to what extent is this driven by non-
doctrinal factors, such as the design of Canada’s health system, its mix
of public and private nancing, its administrative processes for rationing
and so on? An understanding of these broader factors is essential to sound
comparative analyses.19
ree contextual factors are discussed below: national aspirations
underlying rights guarantees, the design and maturity of existing health
systems, and levels of social mobilization around vital issues of health
equity. ese factors are highlighted in part because they are germane to
Canada’s experience with health care litigation. A host of other contextual
factors – such as extreme resource limitations, bribery and corruption
18. is paper, particularly in Parts I and IV, draws upon ndings of Colleen
Flood & Aeyal Gross, eds, e Right to Health at the Public/Private
Divide: A Global Comparative Study (Cambridge: Cambridge University
Press, 2014). Other recent comparative studies on health rights litigation
include: Alicia Ely Yamin & Siri Gloppen, eds, Litigating Health Rights:
Can Courts Bring More Justice to Health? (Cambridge, Mass: Harvard
University Press, 2011); Varun Gauri & Daniel M Brinks, eds, Courting
Social Justice: Judicial Enforcement of Social and Economic Rights in the
Developed World (Cambridge: Cambridge University Press, 2008); Jung,
Hirschl & Rosevear, supra note 2; Katharine G Young & Julieta Lemaitre,
“ e Comparative Fortunes of the Right to Health: Two Tales of
Justiciability in Colombia and South Africa” (2013) 26:1 Harv Hum Rts J
179.
19. Ted Marmor, Richard Freeman & Kieke Okma, “Comparative
Perspectives and Policy Learning in the World of Health Care” (2005) 7:4
Journal of Comparative Policy Analysis 331.
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within health systems and lack of judicial independence – shape the
impact of health litigation in other countries, but have less relevance in
comparison to Canada.20
A. Health Rights and Broader Constitutional
Aspirations
ough fundamental rights are often conceived as ‘universal,’ the purpose
and aspirations underlying rights guarantees vary considerably, re ecting
a country’s history, its experiences with colonialism, racial or ethnic
divisions, its stage of economic development and so on. Courts may
be emboldened or inhibited by these factors in their defense of health
rights. us, for example, South Africa’s post-Apartheid constitution
recognizes a right to health care, along with other ‘second generation’
rights, under a general theory of ‘transformative constitutionalism,’
which aims at rectifying deep and longstanding injustices through a
process guided by the rule of law.21 ese transformative aspirations are
re ected in the unequivocal language of South Africa’s constitutional
guarantees regarding health, which states that “[e]veryone has the right
to have access to ... health care services, including reproductive health
care,” and mandates that “[t]he state must take reasonable legislative and
other measures, within its available resources, to achieve the progressive
realization of these rights.”22 Emboldened by this language, the
Constitutional Court of South Africa addressed the legitimacy of judicial
20. On judicial independence and health rights, see Oscar Cabrera & Fanny
Gomez, “Litigating the Right to Health in Venezuela: A Non-Justiciable
Right in the Context of a De cient Health Care System” in Flood &
Gross, supra note 18 at 394; on the impact of bribery and corruption,
see Eva Foldes, “Addressing Equity in Health Care at e Public-Private
Intersection: e Role of Health Rights Enforcement in Hungary” in
Flood & Gross, supra note 18 at 208; on health rights under extreme
resource scarcity, see Remigius N Nwabueze, “ e Legal Protection and
Enforcement of Health Rights in Nigeria” in Flood & Gross, supra note
18 at 371.
21. Karl Klare, “Legal Culture and Transformative Constitutionalism” (1998)
14:1 SAJHR 146; Eric Christiansen, “Transformative Constitutionalism
in South Africa: Creative Uses of Constitutional Court Authority to
Advance Substantive Justice” (2010) 13:3 J Gender Race & Just 575.
22. Constitution of the Republic of South Africa, 1996, No 108 of 1996, s 27.
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review unequivocally in its Treatment Action Campaign ruling: “[i]n so
far as [the adjudication of health care rights] constitutes an intrusion
into the domain of the Executive, that is an intrusion mandated by the
Constitution itself.”
23
By contrast, inasmuch as Canadian courts have recognized health-
related rights, these have been derived from the Charter’s open-ended
guarantees, notably the section 7 protections against unjust infringements
of “life, liberty and security of the person” and the section 15 “right to
the equal protection and equal bene t of the law without discrimination
…”24 ere is debate, even among progressive legal scholars, as to how
far Canadian courts should venture in the direction of recognizing social
rights, under this ambiguous constitutional mandate. Some encourage
a more rigorous judicial review on questions of access to health care,
25
while others caution that “attempts to leverage a comprehensive protection
of social rights out of an instrument that is chie y aimed at protecting a
class of civil and political rights is not only undesirable, but irresponsible
and undemocratic.”26 Perhaps this ambiguous constitutional mandate
partly explains the courts’ restrained approach to date: a 2008 comparative
study by the International Commission of Jurists, looking at cross-
country variations in the adjudication of economic, social, and cultural
rights, reveals that Canadian courts have been exceptionally conservative
in their approach27 – recognizing positive rights to health care in only one
23. Minister of Health and Others v Treatment Action Campaign and Others,
[2002] ZACC 15 at para 99 [TAC].
24. Some have long maintained that s 7 is meant only to govern the
individual’s “interaction with the justice system and its administration.”
See New Brunswick (Minister of Health and Community Services) v G (J),
[1999] 3 SCR 46 at para 65.
25. Martha Jackman, “Charter Review as a Health Care Accountability
Mechanism in Canada” (2010) 18 Health LJ 1 [Jackman, “Charter
Review”]; Bruce Porter, “A Right to Health Care in Canada: Only If You
Can Pay For It” (2005) 6:4 ESR Review: Economic and Social Rights in
South Africa 8.
26. King, supra note 10 at 200 [emphasis in the original].
27. International Commission of Jurists, Courts and the Legal Enforcement
of Economic, Social and Cultural Rights: Comparative experiences of
justiciability (Geneva: ICJ, 2008).
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notable ruling.
28
is is not to suggest that a broader recognition of health care rights
would run contrary to Canada’s constitutional values or its aspirations
as a nation. Certainly the plain wording of the Charter does not bind
Canadian courts to a conservative interpretation of health care rights.
e wording of article 21 of India’s Constitution29 is nearly identical to
section 7 of the Charter, and yet the Indian Supreme Court has been
more active in championing health rights (and economic, cultural
and social rights generally).30 Moreover, Canada long ago rati ed the
includes a “right of everyone to the enjoyment of the highest attainable
standard of physical and mental health.”31 Courts in other countries,
such as Israel and the Netherlands, have been swayed in their reading
of domestic health rights by their countries’ rati cation of the right to
health under international law.32 In interpreting this right, international
law has roundly rejected the negative/positive rights distinction to which,
as explained below, Canadian courts continue to cling.33
On the one hand, lower and middle income countries have led the
world in embracing these rights – which is understandable, given there is
often an urgent and widespread need for improved access to basic care in
these countries and to correct an often appalling imbalance of resources
devoted to the private as opposed to public system. Yet the very scale of
[Eldridge].
29. “No person shall be deprived of his life or personal liberty except
according to procedure established by law.” e Constitution of India,
1949, as amended by e Constitution (One Hundred and Twentieth
Amendment) Bill, 2013, art 21.
30. Jung, Hirschl & Rosevear, supra note 2.
December 1966, 993 UNTS 3. Canada rati ed the ECSR in 1976.
32. Aeyal Gross, “ e Right to Health in Israel between Solidarity and
Neoliberalism” in Flood & Gross, supra note 18 at 159; Andre den Exter,
“Health Access in the Netherlands” in Flood & Gross, supra note 18 at
188.
33. UN Committee on Economic, Social and Cultural Rights
(CESCR), General Comment No. 9: e domestic application of the
Covenant, 3 December 1998,E/C 12/1998/24.
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unmet needs in these countries may present a problem that is beyond
the power of courts to address. us, in making the case that health
care litigation in Brazil has led to siphoning of resources by wealthier
Brazilians, health law scholar Octavio Ferraz rejects the proposition that
more litigation by the poor o ers a solution:
[E]ven if poor people had e ective access to the courts and started to litigate en
masse … and even if courts were as receptive to their claims as they are to those
of middle class right-to-health litigants … their mandatory injunctions would
soon face a brick wall due to lack of political will and normative consensus on
radical egalitarian measures. No court, however willing, would have the power
to overcome that obstacle.34
As we write, however, Columbian courts are charting a very bold course
and aim to directly impact health policy through a series of recent rulings
that are issuing directions to the government on how to reform health
care policy. Arguably these kind of court-induced systemic reforms will
bene t all Columbians, including the poor. In the Canadian context,
such reforms would challenge entrenched concepts of parliamentary
sovereignty and conceptions of judicial deference and, in our view, are
unlikely to occur in the foreseeable future.
B. Health Rights, Judicial Deference, and the Public/
Private Divide
e trajector y of health care rights litigation is also shaped, in fundamental
ways, by the basic design of a country’s health system – notably its reliance
on private versus public nancing and administration. For example, in
countries that have adopted a managed competition model whereby
universal access is achieved through heavy regulation of private for-health
insurers, such as Colombia, there is a greater potential for litigation on
the part of patients against such insurers. Under a managed competition
scheme, laws and regulations stipulate a basic basket of coverage; but
where insurers fail to meet these requirements, this results in con icts
with patients that may ultimately be litigated under the right to health.
In Colombia, this basic dynamic has in the past contributed to a tsunami
of health rights litigation, thanks in part to a low-cost and expeditious
34. Ferraz, “Lessons from Brazil”, supra note 16 at 1667.
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system of adjudication (so-called tutela hearings).35
is expanded role for private for-pro t insurers changes the basic
complexion of health rights litigation, particularly vis-à-vis the worries
about polycentrism and democratic legitimacy discussed above. In the
Colombian context, courts may reason that the refusal of treatments by
private insurers is motivated by pro t, and less a re ection of polycentric
tradeo between the interests of all patients. Likewise, there is obviously
little concern over the democratic legitimacy of judicial review of
rationing decisions by private insurers. In some instances, Colombian
courts have scrutinized the government-mandated basket of services,
which has predictably been far more controversial, inviting accusations
of ‘government by judges.’36
Contrast this with Canada, where the Canada Health Act37
stipulates that the nancing of medically necessary care must be publicly
administered. Given the driving concern about overreach, it is perhaps
to be expected that Canadian courts would take a deferential approach
under these circumstances, and indeed a degree of reticence is seen across
other industrialized countries with (relatively) well-functioning tax-
nanced health systems.38 In theory at least, when a Canadian patient is
denied needed care, a government or a governmental agency has made
the decision with a public interest mandate vision. As well, a far more
expansive range of tradeo s are at play as courts second guess resource
allocation within a tax- nanced system; resources redirected to health
care may have to be drawn from a pool that supplies funding for many
other vital government services. Finally, whereas Colombia’s tutela rulings
typically impacted only the parties involved (although the sheer volume
of claims ultimately had a systemic e ect), judicial precedents related
to publicly administered health systems will in theory have a broad and
lasting impact – given that “[t]he nature of modern government means
that justice for an individual will often require systemic measures that
35. Everaldo Lamprea, “Colombia’s Right-to-health Litigation in a Context of
Health Care Reform” in Flood & Gross, supra note 18 at 131; Young &
Lemaitre, supra note 18.
36. Young & Lemaitre, ibid at 189.
37. RSC 1985, c C-6 [CHA]
38. See generally Flood & Gross, supra note 18.
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will deliver justice to much larger groups.”39
Such contextual factors may partly explain Canadian courts’ reluctant
and conservative approach to the recognition of health care rights,
particularly by comparison to the hyper-individualized approach taken
in some Latin American countries. Surface appearances can be somewhat
misleading though: under tax- nanced universal health systems, judicial
approaches which on their face seem cautious and deferential – e.g. courts
recognizing only negative rights in health care – can potentially have
very disruptive e ects. e Supreme Court of Canada’s much-criticized
Chaoulli decision, discussed later, is a case in point.
C. Health Rights and Social Mobilization
It is widely recognized that broader social movements are often
instrumental in the success or failure of health rights at every stage, from
the launching of claims, through the litigation process, and in pressuring
governments to honour their obligations in the wake of a successful
court challenge.40 Civil society groups can shape the outcome of health
rights litigation in various ways, whether by promoting public awareness
around an issue, lobbying governments to nance treatments or close
access barriers, funding test litigation, participating in litigation as third
party interveners and, in the event of a courtroom success, monitoring
and reporting on government compliance with court orders.
e importance of social mobilization to success in the litigation
of health rights is commonly illustrated with the example of HIV/
AIDS activism, and the South African Constitutional Court’s (CCSA)
decision in Treatment Action Campaign41 – arguably one of the world’s
most discussed and celebrated health rights decisions to date. 42 In TA C,
39. Roach, “Crafting Remedies”, supra note 9 at 49. But note discussion
below of the less-than-systematic implementation of the Supreme Court
of Canada’s Charter ruling requiring provision of interpretive services for
deaf patients as they seek medically necessary care.
40. Siri Gloppen, “Litigation as a Strategy to Hold Governments Accountable
for Implementing the Right to Health” (2008) 10:2 Health & Hum
Rts 21.
41. TAC, supra note 23.
42. Lisa Forman & Jerome Amir Singh, “ e Role of Rights and Litigation in
Assuring More Equitable Access to Health Care in South Africa” in Flood
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the CCSA interpreted the right to health care as requiring the South
African government to expand access to a drug (nevirapine) used in
preventing mother-to-child transmission of HIV. Prior to the litigation,
activists had successfully lobbied the manufacturer to provide the drug
free of charge, but the South African government nevertheless restricted
its availability to certain test sites, citing inter alia safety concerns and the
cost of complementary services (e.g. counseling services, formula milk). In
rejecting these government justi cations, the CCSA cited evidence that
political pressures had already led to expanded provision of nevirapine in
some regions, demonstrating that “provided the requisite political will
is present, the supply of nevirapine at public health institutions can be
rapidly expanded …”43 Moreover, the Court explained, the government’s
recent infusion of nearly a billion rand in new funding for HIV treatment
indicated that, “budgetary constraints … are no longer an impediment.”44
Social mobilization was instrumental to the TAC’s success story
within the courtroom and beyond. us, for example, by building
treatment literacy and pressuring drug makers to provide nevirapine
at no cost, activists undermined government’s argument from resource
constraints; by lobbying successfully for expanded delivery programs in
some regions, activists demonstrated that the barriers to national rollout
were political, and not resource-related; and social mobilization triggered
the government’s decision to pre-emptively expand budgets for HIV
treatments while the case was before the courts, further undermining the
argument from resource constraints.
A comparison between TAC and Grootboom and Others v Oostenberg
and Others
45 – another famous South African case related to housing
rights – reveals how courtroom victories may ring hollow on the ground,
& Gross, supra note 18 at 288; Young & Lemaitre, supra note 18 at 215;
Mark Heywood, “South Africa’s Treatment Action Campaign: Combining
Law and Social Mobilization to Realize the Right to Health” (2000) 1:1
Journal of Human Rights Practice 14; Leslie London, “What is a Human-
Rights Based Approach to Health and Does it Matter?” (2008) 10:1
Health & Hum Rts 65.
43. TAC, supra note 23 at para 119.
44. Ibid at para 120.
45. [2000] ZACC 19 [Grootboom].
64
omas & Flood, Putting Health to Rights
absent e ective and persistent social mobilization.46 Eight years after her
precedent-setting victory under the South African Constitution’s right to
housing, Irene Grootboom died in middle age, homeless and destitute.47
Summing up the decision’s ultimate impact, one commentator explains
that, “no major shifts in housing policy have followed this test case,
largely because of the lack of civil society pressure or a social movement
in the area of housing.”48
Much the same di culty has arisen where Canadian courts have
recognized positive rights with respect to health care. In Eldridge,49 the
Supreme Court of Canada ruled that government’s failure to provide
interpretive services for deaf patients was an infringement of equality
rights under section 15 of the Charter. ough disability activists greeted
the decision as a major victory, implementation has been disappointing:
to date British Columbia and Ontario have been the only provinces to
comply with the ruling. Even in these provinces, medical interpretive
services have been plagued by problems of underfunding and interpreter
shortages.
50
Often, when this connection is drawn between social mobilization
and the realization of health rights, a tactical lesson is drawn: activists
seeking access to a given therapy through court challenges are advised to
take a multi-pronged approach, building sustainable political momentum
around their cause. Stepping back from that tactical advice, a bigger
46. Forman & Singh, supra note 42.
47. Grootboom, supra note 45; Pearlie Joubert “Grootboom dies homeless
and penniless”, Mail & Guardian (28 August 2008), online: Mail and
Guardian
homeless-and-penniless>.
48. London, supra note 42 at 67.
49. Eldridge, supra note 28.
50. Colleen M Flood & YY Brandon Chen, “Charter of Rights & Health
Care Funding: A Typology of Canadian Health Rights Litigation” (2010)
19:3 Annals Health L 479 at 489-94 and 509-18. e interplay between
litigation and social mobilization is a two-way street. In some instances,
headline-making cases draw public attention to an issue, potentially
shifting public opinion and spurring change through political channels.
is dynamic has been observed in Canada as well, as the Supreme
Court’s rulings on physician assisted suicide, IVF funding, and access to
autism therapies have coincided with changing public attitudes on these
issues.
65
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picture question is whether – given its dependence on social mobilization
– a rights-based approach to health care will tend to advance equity
overall.
E ectiveness at social mobilization is, after all, partly a function of a
constituency’s resources and political in uence, raising the concern that
health rights, insofar as their exercise requires societal backing, may tend
to bene t comparatively advantaged groups.51 Some prominent critics
of health rights have argued, for example, that groundbreaking progress
around HIV/AIDS was due partly to that disease’s impact on middle
and upper classes. ey point to the fact that global spending on HIV/
AIDS has vastly eclipsed spending on other diseases that more narrowly
target the poor, killing in comparable numbers, such as malaria and
tuberculosis.52
Of course, concerns about health care resources owing on the basis
of ‘ability to mobilize’ can arise even without the courts’ involvement.
For example, in New Zealand’s drawn-out debate over public funding
for the breast cancer drug Herceptin, the courts sided with the country’s
Pharmaceutical Management Agency (PHARMAC), ruling that the
latter’s decision to limit funding for the drug to a nine-week regimen
was reasonable, and rejecting the claimant’s demand for a twelve-month
regimen.53 Following that ruling, however, a new government came
to power, and delivered on its election promise to extend funding for
Herceptin to twelve months, overriding PHARMAC’s decision that this
could not be justi ed under the country’s guidelines for rationing.54
A related concern is that public attention and social mobilization is
often stirred by a ‘rescue imperative’ – focusing on discrete health issues for
which e ective therapies are available. With the development of e ective
51. Ibid at 71.
52. Roger England, “ e Dangers of Disease Speci c Programmes for
Developing Countries” (2007) 335:7619 Brit Med J 565; William
Easterly, “Human Rights are the Wrong Basis for Health Care”, Wall
Street Journal (12 October 2009). See generally Julia H Smith & Alan
Whiteside, “ e History of AIDS Exceptionalism” (2010) 13:47 Journal
of the International AIDS Society 1.
53. Walsh v Pharmaceutical Management Agency, [2008] NZHC 44.
54. Joanna Manning, “Litigating a Right to Health Care in New Zealand” in
Flood & Gross, supra note 18 at 19.
66
omas & Flood, Putting Health to Rights
anti-retroviral medicines, the HIV/AIDS epidemic came to t this
description and became a candidate for e ective social mobilization and
judicial intervention in the South African context. It is not clear that the
most pressing health inequities in the Canadian context t this framing.
For example, the appalling disparity in health outcomes experienced by
Canada’s Aboriginal population, or the country’s growing epidemic of
non-communicable diseases, will not be addressed by expanding access
to particular pharmaceuticals. Will the public rally around a rights-based
framing of these complex multi-factorial challenges? Are the courts in
any position to devise and enforce e ective remedies?
IV. Health Care Rights in the Canadian Context
To this point we have seen the central dilemma facing courts in
adjudicating health rights (i.e. a concern about overreach), and discussed
various contextual factors that further shape the prospects for health
rights litigation – including factors that partly explain Canadian courts’
deferential approach to date. Of course, deference can take many forms,
and so a further question is whether Canadian courts, in addressing
claims concerning the right to health care, have drawn lines of deference
in the right places. To explore that question, we provide an overview
of health litigation under the Charter, speci cally under sections 7 and
15.
55 It will be argued that in drawing these lines, Canadian courts
have favoured formalism over substantive fairness: broadly speaking, a
hard line has been drawn, interpreting the section 7 right to life and
security of the person as a ‘negative’ right, while the section 15 equality
right has been read as guaranteeing only ‘access to the basket’ of care
committed to statutorily by provincial insurers. One can acknowledge
that the Canadian context calls for a degree of judicial deference while
questioning the wisdom of this path. Courts in other similarly situated
countries, such as the UK, have had success at holding governments
55. Canadians have other options for litigating issues of access to health
care (e.g. administrative law review). For a brief overview of the options
available to patients refused care in Ontario, see Colleen M Flood,
Carolyn Tuohy & Mark Stabile, “What Is In and Out of Medicare? Who
Decides?” in Colleen M Flood, ed, Just Medicare: What’s In, What’s Out,
How We Decide (Toronto: University of Toronto Press, 2006) 15 at 17-30.
67
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accountable for reasonable decision-making in health care.
A. Focus on ‘Negative’ Rights
In the Canadian context, judicial oversight of health care resource
allocation has been avoided in part by construing the Charter’s section
7 guarantee of ‘life, liberty and security of the person’ as protecting
only negative rights. In most cases where Canadian claimants have
secured health care related victories through litigation, the prize has
been a negative right – for example, overturning restrictions on access
to abortion services, safe injection sites and medical marijuana. 56 is
approach can perhaps be defended as a plain reading of the Canadian
Charter, which as explained, di ers from other modern bills of rights in
its focus on standard civil and political rights to the exclusion of explicit
social and economic rights. At times the Supreme Court of Canada
has stated explicitly that the Charter grants no positive right to health
care, as in this passage from its unanimous 2004 ruling, Auton v British
Columbia: “[t]his Court has repeatedly held that the legislature is under
no obligation to create a particular bene t.”
57
As many commentators have noted, recognition of a negative right
to a particular therapy does little to advance equitable access. Evidence
suggests, for example, that access issues worsened in the years following
the Morgentaler decision, as the number of hospitals o ering abortion
Canada (Attorney General) v PHS Community Services Society, 2011
(CA) (medical marijuana). See Flood & Chen, supra note 50 at 494.
ere have also been a handful of Charter challenges to criminal laws
impacting health rights, but which do not implicate access to health care
per se: Canada (Attorney General) v Bedford, 2013 SCC 72 (challenging
prostitution laws as an infringement of security of the person); R v
Mabior, 2012 SCC 47 (challenging criminal law provisions requiring
disclosure of HIV status).
SCC 78 at para 41 [Auton]. See also Chief Justice McLachlin’s comment
in Chaoulli, supra note 5 at para 104 that the Charter “does not confer a
free standing constitutional right to health care.” In other contexts, the
Court has expressed an openness in principle to recognizing positive rights
under s 7. See Gosselin v Quebec (Attorney General), 2002 SCC 84.
68
omas & Flood, Putting Health to Rights
services declined, forcing many women to incur out-of-pocket expenses
traveling to receive the service out of province, or in private clinics.58 In
countries such as Canada, where citizens rely largely on the state for the
nancing and governance of health systems, overturning state-imposed
obstacles can at best be a rst step towards ensuring equitable access.
A deeper concern relates to the insidious e ect that negative rights
may have when used to challenge laws that promote overall equity.
e Supreme Court long ago acknowledged this risk, with Chief
Justice Dickson famously writing in an early Charter ruling that, “[i]n
interpreting and applying the Charter … the courts must be cautious to
ensure that it does not simply become an instrument of better situated
individuals to roll back legislation which has as its object the improvement
of the condition of less advantaged persons.”59 Yet this cautionary note
was seemingly thrown to the wind with the 2005 decision, Chaoulli v
Quebec.60 ere, the co-plainti s alleged that, given wait times in the
public system, Quebec’s ban on private insurance breached patients’
rights to life and security of the person, under both section 1 of Quebec’s
Charter of Human Rights and Freedoms61 and section 7 of the Canadian
Charter. In a 4-3 decision, the Supreme Court agreed with the petitioners
and repudiated the prohibition of private insurance on the basis of
the Quebec Charter. In their reasoning, the majority relied upon on a
crude international comparison of health systems to conclude that the
allowance of a parallel private sector would not necessarily undermine
the quality of the public health care regime.62 ree of the four majority
judges in Chaoulli also found the legislative prohibition in question to
have infringed section 7 of the Charter.
Many were surprised at the Court’s willingness to wade into the
complex policy issues raised in Chaoulli, particularly in light of the
58. See Flood & Chen, supra note 50; Sanda Rodgers, “Abortion Denied:
Bearing the Limits of Law” in Flood, supra note 55 at 107.
60. Chaoulli, supra note 5.
61. RSQ c C-12, (“[e]very human being has a right to life, and to personal
security, inviolability and freedom,” s 1).
62. See Colleen M Flood, “Chaoulli: Political Undertows and Judicial
Riptides” (2008) Health LJ at 211 (for a thorough discussion on the aws
of the Supreme Court’s international comparative exercise).
69
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deference shown in earlier rulings in this area.
63 Kent Roach has suggested
that what distinguished the Chaoulli claim, from the Court’s perspective,
was precisely the negative remedy sought:
e simplicity of the remedy requested by the Charter applicants made
their substantive claims attractive to the majority … e applicants in this
case asked for a simple, traditional and easy to enforce remedy. ey did not
ask the courts to declare that governments had to provide new health care
services … let alone retain jurisdiction to ensure systemic compliance with the
Charter …64
is brings us back, in essence, to the basic dilemma concerning the courts’
institutional competence, discussed in Part I above. It is easier for courts
to strike down law and policy than to oversee its implementation, which
does not bode well for the prospects of health rights litigation addressing
the needs of disadvantaged groups who depend on government services.
As it happens, Chaoulli was the rst battle in a larger war to create
opportunities for more private nancing of medically necessary care and
similar litigation is now occurring across Canada. In Alberta, claimant
William Murray is currently pursuing a class action against the province
for damages he allegedly sustained from the denial of access to a hip
replacement procedure under the public health insurance plan. He argues
that the denial of public coverage, in conjunction with sections of the
Alberta Health Care Insurance Act65 that prevent treatment access outside
of the government-run regime, violates his rights under section 7 of the
Charter.66 An ongoing case initiated by claimants Lindsay McCreith and
Ms. Shona Holmes points to wait time problems in Ontario, and calls
into question the constitutionality of provincial regulations designed to
suppress the expansion of the private health care sector.67 A private for-
pro t clinic, Cambie Surgeries Corporation (Cambie), is contesting the
constitutionality of similar provisions under British Columbia’s Medicare
63. Sujit Choudhry, “Worse than Lochner?” in Flood, Roach & Sossin, supra
note 7 at 76.
64. Roach, supra note 7 at 184.
65. RSA 2000, c A-20.
67. McCreith v Ontario (Attorney General) (5 September 2007), No 07-CU-
339454PD3 (Ont Sup Ct) Statement of Claim.
70
omas & Flood, Putting Health to Rights
Protection Act.68 Cambie is represented by Dr. Brian Day, a past president
of the Canadian Medical Association (CMA).69
Of late, some more hopeful prospects have emerged in section 7
jurisprudence. In the recent case Canada v PHS Community Services,70
the issue was whether section 7 was engaged by the federal Minister of
Health’s withdrawal of an exemption, which had previously allowed the
Insite safe injection facility to operate without fear of criminal prosecution
under the Controlled Drugs and Substances Act.71 ere the majority
found that rights to life, liberty and security of the person were engaged
by the Minister’s decision – forcing as it would the clinic’s clientele to
dangerous back-alley injection practices.72 Continuing with its section 7
analysis, the Court then explored whether the Ministerial decision had
been made “in accordance with principles of fundamental justice,” citing
evidence of the clinic’s success in saving lives to conclude that withdrawal
of the exemption was arbitrary and grossly disproportionate.73 Strictly
speaking, the claimants in PHS secured a negative right, but the decision
signals a new willingness on the part of the Court to probe the evidence
supporting government decisions to withdraw access to health services.
Might this precedent carry over to cases where governments attempt to
withdraw funding for health care programs?
e question may receive an answer in litigation currently underway
at the Federal Court, challenging the federal government’s recent decision
68. RSBC 1996, c 286.
69. Cambie Surgeries Corp v British Columbia (Medical Services Commission),
2010 BCCA 396. is case is part of an early round of this constitutional
battle concerning the ability of the Medical Service Commission to audit
Dr. Day’s clinic. e audit sampled 468 services provided by two private
clinics (Cambie and Specialist Referral Clinic) and found that almost
half were illegally billed. See Ministry of Health, Audit & Investigations
Branch, Specialist Referral Clinic (Vancouver) Inc and Cambie Surgeries
Corporation Audit Report (Vancouver: Ministry of Health, Audit and
Investigations Branch, ), online: BC Ministry of Health
www.health.gov.bc.ca/msp/legislation/pdf/srccsc-audit-report-2012.pdf>.
70. PHS, supra note 56.
71. SC 1996, c 19.
72. PHS, supra note 56 at para 93.
73. Ibid at paras 129-33.
71
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to claw back the long-standing Interim Federal Health Plan.74 Under the
new rules, health care coverage for certain categories of refugee claimants
is limited to ‘urgent and essential’ care, while others will receive coverage
only if their health status poses a threat to public health. e claimants
argue, inter alia, that the withdrawal of coverage endangers the a ected
refugees’ section 7 interests – most cannot a ord private insurance, and
so run the risk of being denied life-saving treatment. e claimants
acknowledge that the Charter does not confer a positive right to health
care, but cite PHS to argue that government decisions withdrawing
access to care must accord with principles of fundamental justice (i.e.
avoid arbitrariness and gross disproportionality).75
B. Equality of ‘Access to the Basket’
Claimants have used the Charter’s section 15 guarantee of “equal bene t
of the law without discrimination” to press for access to health goods and
services denied under provincial insurance plans. Section 15 does not
aim to prevent unequal bene ts per se, as governments inevitably draw
distinctions in the provision of services.76 e equality guarantee bars
only wrongful forms of discrimination, which deprive individuals of the
bene ts of the law on the basis of “race, national or ethnic origin, colour,
religion, sex, age or mental and physical disability,” along with analogous
grounds such as sexual orientation. Canadian courts have disavowed
a formalistic approach to the equality guarantee, instead requiring
governments to “take into account the underlying di erences between
individuals in society,”77 adjusting laws to achieve substantive equality.
74. Canadian Doctors for Refugee Care v Attorney General or Canada (Minister
of Citizenship and Immigration) (30 October 2013), T-356-13 (FC)
(Memorandum of Fact and Law of the Applicants) online: Justice for
Children and Youth .jfcy.org/PDFs/IFHP_Memo_CDRC_
CARL.pdf>.
75. Rather than breaking new ground under s 7, the court may opt to decide
this case under s 15, as the new regime discriminates against refugees on
the basis of their country of origin.
76. “It must be recognized … that every di erence in treatment between
individuals under the law will not necessarily result in inequality …”:
Andrews v Law Society of British Columbia, [1989] 1 SCR 143 at 164.
77. Law v Canada (Minister of Employment and Immigration), [1999] 1 SCR
72
omas & Flood, Putting Health to Rights
While the equality guarantee does not ground a positive right to
health care, it may oblige governments to take positive steps to ensure that
citizens enjoy equal bene t of established health systems. e singular
instance where Canadian courts have recognized a positive obligation on
the part of governments to provide health-related services arose under
the rubric of equality rights. In Eldridge v British Columbia, the Supreme
Court ruled that the government’s non-funding of sign language
interpretation services at public hospitals violated the equality rights of
the province’s deaf population.78 At the time, many had hoped that the
Court’s unanimous ruling in Eldridge might open the door to increased
judicial scrutiny of issues of health care accessibility. In the years that
followed, claimants drew on the precedent to argue that non-funding of
autism therapies79 and in vitro fertilization80 also infringed the right to
equality.
From the outcome of these later decisions, though, it appears that
the Eldridge precedent applies narrowly, guaranteeing only equal ‘access
to the basket’ of health care services deemed ‘medically necessary’ by
government decision-makers. Nola Ries explains the limiting principle
at play here: “the Eldridge claim is like a wheelchair user asking a library
to build a ramp so she may gain access to the books in the library that
are available to patrons who can walk up the stairs. In contrast, Eldridge
is not like the disabled patron asking the library to purchase new books
to put on the shelves.”
81
e access to the basket principle was deployed in Auton, as the
Supreme Court ruled unanimously that non-funding of ABA/IBI autism
therapies did not infringe the petitioner’s section 15 equality rights.
497 at para 25.
SCC 61 (drawing on the Eldridge precedent to nd that the closure
of a Diagnostic Centre for students with learning disabilities created a
discriminatory barrier to public schooling, under the BC Human Rights
Code).
79. Auton, supra note 57.
81. Nola M Ries, “Charter Challenges” in Jocelyn Downie, Timothy Caul eld
& Colleen M Flood, eds, Canadian Health Law and Policy (Markham:
LexisNexis Canada, 2011) 615 at 628-29.
73
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ere, the Court explained that neither the Canada Health Act,82 nor the
relevant British Columbia legislation,83 promised funding for ‘non-core’
services. Legislation instead left it to the discretion of the province’s
Medical Services Commission to designate particular practitioners and
procedures for non-core funding, and ABA/IBI therapy had not been
so designated. us Chief Justice McLachlin di erentiated Auton from
Eldridge by noting that, “Eldridge … was concerned with unequal access
to a bene t that the law conferred and with applying a bene t granting
law in a non-discriminatory fashion. By contrast, [Auton] is concerned
with access to a bene t that the law has not conferred.”84
In e ect, the ‘access to the basket’ principle does for section 15 what
the ‘negative rights’ reading does for section 7, carving down the right’s
scope to align with the basic premise that “… the legislature is under
no obligation to create a particular bene t.”85 Ultimately, of course, this
traces back to the concern about overreach; as Sujit Choudhry puts it,
[t]his reasoning is so di cult to defend that the only way to read Auton [is] as
having created a political questions doctrine around the scope of the Medicare
envelope. e clear message from the Court was that the Court did not wish
judges to be drawn into adjudicating upon the design of Medicare on a case-
by-case basis, a task for which they are poorly quali ed.86
A basic concern here is that the ‘access to the basket’ principle o ers
questionable guidance for achieving substantive equality. Consider even
the conclusion reached in the library analogy, namely, that equality is
achieved provided that disabled people have physical access to the
collection. Surely, though, a commitment to substantive equality must
have some bearing on a library’s basket of o erings – e.g. the availability of
82. Supra note 36.
83. Medicare Protection Act, RSBC 1996, c 286.
84. Auton, supra note 57 at para 38 [emphasis in the original].
85. Ibid at para 41. ere are other elements to s 15, including the
requirement that claimants articulate an appropriate comparator group,
and show harm to dignity. We sidestep these issues for two reasons: (1)
e ‘access to the basket’ principle arises at an earlier stage in the court’s
analysis, meaning that these other criteria will seldom be determinative
in s 15 claims involving Medicare rationing; (2) ese later stages of s
15 analysis have been overhauled in recent decisions. See R v Kapp, 2008
86. Choudhry, supra note 63 at 93.
74
omas & Flood, Putting Health to Rights
books written in braille. e reality is that many of the gravest threats to
equity in Canadian health care stem precisely from decisions about what
to include in the basket. Canada currently has roughly a 70:30 mix of
public to private funding for health care, behind most comparable OECD
countries.
87 at outsized component of privatized care covers many
indispensible elements of modern health care, including prescription
drugs, dental care, and long-term care.88 eir exclusion from the public
basket does not necessarily re ect careful and transparent deliberation
over relevant tradeo s. For example, the omission of prescription drug
and long-term care coverage is largely a vestige of Canadian Medicare’s
1960s origins – a time when drugs accounted for a much smaller
portion of health care spending, and health care was largely provided by
physicians and/or in hospitals. Technological advancements and an aging
population have meant that those excluded components have grown as a
percentage of overall health spending, resulting in passive privatization.
Meanwhile, year-to-year decisions over what physician services are
included under provincial plans appear to be largely the byproduct of
annual fee negotiations between provinces and their respective provincial
medical associations – a process biased towards preserving the status quo,
and liable to be in uenced by non-medical considerations.89 In short,
the ‘access to the basket’ principle arguably insulates serious and systemic
inequalities from rights scrutiny, in formalistic deference to legislative
decision-making, which appears variously complacent, opaque and non-
evidence-based.
87. William Lahey, “Medicare and the Law: Contours of an Evolving
Relationship” in Downie, Caul eld & Flood, supra note 81 at 6.
88. Although not required to do so under the Canada Health Act, provinces
do provide coverage for prescription drugs, home care, etc. however
coverage varies signi cantly from province to province. See Virginie
Demers et al, “Comparison of provincial prescription drug plans and the
impact on patients’ annual drug expenditures” (2008) 178:4 Can Med
Assoc J 405; Vishnu Kapur & Kisalaya Basu, “Drug coverage in Canada:
who is at risk” (2005) 71:2 Health Policy 181.
89. Flood, Tuohy & Stabile, supra note 55.
75
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V. A Middle Road of Reasonableness Review?
Perhaps it is time that Canadian courts change tack and play a more
active role in holding governments accountable for decisions about
what to include in the Medicare basket. As Jackman notes, “every major
health system review undertaken in Canada over the past decade has
concluded with a call for improved health care accountability,”90 yet it
remains unclear from whence this accountability will originate. At a
macro level, the federal government is ostensibly charged with ensuring
that provinces comply with principles of comprehensiveness, universality
and so on, backed by the threat of nancial penalties as authorized by the
Canada Health Act. Yet the only enforcement action taken by the federal
government to date has been with respect to user fees and extra-billing,
and even on this score, there has been growing passivity.91 A key problem
here is that the only available enforcement mechanism under the CHA
– withholding of federal transfers – is likely to exacerbate problems
associated with wait times and rationing.
Rather than start from the premise that the Constitution does not
confer a free standing constitutional right to health care, courts might
begin with a basic recognition that comprehensive and universal public
health care are in fact the embodiment of Charter values. is might
entail opening the door further to positive health rights claims, placing
the onus on government to justify denials of care and, where necessary,
applying deference at a later stage of analysis. In this way, courts could
assist with developing precedents and guidelines that support reasonable,
accountable decision-making across the system as a whole, rather then
through a blinkered focus on negative rights and ‘access to the basket.’
A potential advantage of such a shift is that it would provide a
much-needed counter-balance against regressive Chaoulli-style claims. As
the issue of access to private insurance for medically necessary care was
framed under the existing doctrinal paradigm, the claimant’s section 7
rights were balanced against ‘mere’ policy objectives (i.e. maintaining
Medicare’s universality) with predictable results: given the complex
90. Jackman, “Charter Review”, supra note 25 at 29.
91. Lahey, supra note 87 at 48-50.
76
omas & Flood, Putting Health to Rights
and uncertain causal dynamics within health systems, governments
faced a formidable challenge in proving that a ban on private insurance
was necessary for the protection of the public tier. Yet surely it is more
consonant with Charter values, and Canadian public opinion, to frame
this as a question of ‘reconciling’ the negative rights of those demanding
privately nanced care against the positive rights of those dependent on
Medicare. In concrete terms, reframing this as an issue of reconciling
rights would increase the evidentiary burden on those asserting negative
health care rights in a way that threatens principles of universality and
solidarity. As Justice Iacobucci has explained,
Under s. 1, the state must justify a violation of an individual’s Charter rights.
When reconciling competing Charter rights, on the other hand, a court seeks
to reconcile the constitutionally guaranteed rights of one individual with those
of another. Consequently, the onus of proof in each of these cases plays out
somewhat di erently. Under section 1, the party challenging the impugned
law must establish a prima facie encroachment of a Charter right. e state
then bears the serious onus of defending or justifying the violation … In the
reconciling context, there is no rule about onus per se.92
e concern of course will be that recognition of positive rights in
this context opens a Pandora’s box, leading to the courts micromanaging
Medicare. Really though, the question is not whether courts should
be deferential in adjudicating rights to health care, but how that line
of deference should be drawn. Experience from similarly situated
countries suggests that courts can play an important oversight role
without micromanaging health care policy. Short of ordering funding for
particular therapies, courts can scrutinize the process by which rationing
decisions are made, and through evolving jurisprudence, develop
guidelines, tests and criteria to ensure ongoing accountability in this
regard.93 For example, the ‘Hard Look’ judicial review approach, which
has emerged over the past decade in UK administrative law jurisprudence,
focuses on ensuring that decision-making processes adhere to principles
of procedural fairness, and considers all relevant factors while excluding
92. Justice Frank Iacobucci, “‘Reconciling Rights’: e Supreme Court of
Canada’s Approach to Competing Charter Rights” (2003) 20 Sup Ct L
Rev (2d) 137 at 141-42.
93. Lorne Sossin, “Towards a Two-Tier Constitution? e Poverty of Health
Rights” in Flood, Roach & Sossin, supra note 7 at 172.
77
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irrelevant ones.94 Reviewing individual claims, courts look to ensure that
the decision-making process has attended to the nature and seriousness
of the illness; the cogency of the evidence that the treatment works;
the extent and likelihood that it will work in this patient; the extent of
improvement it might be expected to provide; and the absolute cost of
the treatment.95 Chris Newdick explains that judicial prodding, focusing
on these factors, has incrementally driven improved accountability across
the National Health Service (NHS) as a whole – culminating in the
codi cation of guidelines in an NHS Constitution:
e number of cases was limited and, at least at rst, their impact on the NHS
as a whole was small. However … as the cases accumulated, they exercised
greater in uence collectively. As the consistency of the courts’ response made
the giving of legal advice to health authorities more straightforward (and
legal case became increasingly newsworthy), the government responded by
publishing the NHS Constitution … which reduces the cases to a single code
of good practice and cements patients’ rights.96
VI. Conc lusion
e aspiration of health care rights is to improve the health of all
but particularly to improve upon the health of the most vulnerable.
Recognizing health care rights in developing and middle-income
countries may be a galvanizing force for progressive changes, supporting
and nurturing a radical shift in how resources are allocated to ensure better
access for the most vulnerable. But this is not a linear task, and assuming
that litigation of health care rights can achieve this goal underestimates
the complexity of dealing with issues such as access to justice, the prospect
that litigation can distort the socially fair allocation of public resources,
the appropriate respective role for courts and governments in health care
decision-making and the need for public and policy support for any
particular judgment to be implemented on the ground.
In the Canadian context, courts have taken a very conservative
approach to the question of health care rights and in only one section 15
94. Chris Newdick, “Promoting Access and Equity in Health: Assessing the
National Health Service in England” in Flood & Gross, supra note 18 at
118-19 [forthcoming].
95. Ibid.
96. Ibid at 122.
78
omas & Flood, Putting Health to Rights
case has the Supreme Court found that a government should publicly
fund a treatment. In all other relevant cases, the Court has only found a
“negative” right in the sense of requiring that government laws or policies
acting as barriers to the consumption of health care be removed. is
conservative approach has now even gone so far as to uphold a challenge
to provincial laws banning private health insurance, passed in order to
ensure equity and universality in Canadian Medicare. We think the
Court has now passed beyond the boundary of showing deference to
governmental decision-making in not interpreting section 7 positive
rights and crossed the void into attacking values that we see at the core
of the Charter – equality, access and universality in public Medicare. We
recommend that Canadian courts consider, in future Charter challenges
to public Medicare, that the issue is one of competing rights; any right
a petitioner may have to access private care must be weighed against
the rights of other Canadians to enjoy a universal, access and equitable
public health care system. is would at least attenuate to some degree
the extent to which governments are tasked with the near-impossible
task of adducing empirical evidence to show that there are no lesser
means by which goals of equity, universality and access can be achieved
in the Canadian context. Further, we would support that most health
care cases be reviewed rst through administrative law on grounds that
this approach – requiring fair and transparent processes in government
decision-making and overall reasonableness of the nal decision – is by
far the best way for courts to play a role in realizing Canadians’ rights in
health care.
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