Universality and medical necessity: statutory and charter remedies to individual claims to Ontario health insurance funding.

• Author: Baker, David

1. Overview

The Canada Health Act (CHA) represents the foundation stone of Canada's system of publicly funded health insurance. (1) The primary objective of Canadian health care policy is described in section 3 as being:

to protect, promote and restore the physical and mental well-being of residents of Canada and to facilitate reasonable access to health services without financial or other barriers. The CHA establishes the criteria that provincial and territorial governments must meet in order to qualify for federal transfer payments. These guiding principles define the Canadian health care system, which has become the flagship of this country's social service infrastructure and our most valued social program. The celebrated five pillars of the CHA are: public administration, comprehensiveness, universality, portability and accessibility. For the purposes of this paper, we will focus on the concept of universality in terms of what it means for publicly funded health care as an ideal, as well as a practical matter. (2)

Universality means that health care services are available to all, regardless of personal circumstances such as socio-economic status, citizenship, place of residence or other grounds typically covered by provincial human rights legislation and the Charter of Rights and Freedoms (Charter).

Universality promotes equality among Canadians by mandating that there is to be a single-tier system for all users, which entitles "one hundred per cent of the insured persons of the province to the insured health services provided for by the plan on uniform terms and conditions" (s. 10). It frowns upon prospective line-jumpers and favour-seekers, by vigilantly guarding against the "apartheidization" of health care--the move towards a multi-tier system that segregates users based on socio-economic factors. Moreover, the requirement of universality ensures equal opportunity and reciprocity, which in turn promote national unity and social cohesion. (3)

While universality holds that everyone is covered, it has never meant coverage for everything. (4) Comprehensive coverage under the CHA extends only to those services that are deemed "medically necessary". As will be discussed, medical necessity is a contentious battleground in which citizens and government are locked in an interpretive struggle over the scope of this coverage, and the types of services deemed to be medically necessary. Disputes about medical necessity can arise when services that had previously been listed are de-listed, whether based on "evidence-based" analysis, physician-government negotiations designed to respond to financial constraints or the political viewpoint of the government of the day. Alternatively, they may arise when a new treatment has been developed and remains to be decided whether or not its claim for recognition is warranted. (5) This paper will not directly address problems of whether waiting lists or the conditions attached to coverage of a particular treatment frustrate the goal of universality. (6) It will focus on the circumstances when an individual may challenge an outright refusal of coverage by the Ontario government. While governments express concern that individual challenges to the government's exercise of discretion represent a threat to the viability of medicare as we know it, (7) individuals who feel they are not receiving the health care to which they are entitled are highly motivated to attempt to widen the reach of the public system. Because they are the ones who suffer if their needs are not being met, they can legitimately claim to better reflect the changing needs of society and evolving approaches to health care and wellness. They must, of course, be prepared for the eventuality that the treatment for which they are seeking coverage is ultimately found not to be medically necessary.

This paper will provide an overview of recent jurisprudence exploring the meaning of universality and medical necessity in today's dualistic reality of fiscal responsibility and cost-cutting on the one hand, and the expansion of health services into innovative and non-traditional directions on the other. The paper is divided into two principal parts: the first will deal with cases in which provincial statutory remedies were sought; the second with Charter and human rights claims. While not covered in this paper, readers may wish to examine an approach proposed by academics but virtually untested in the courts, which suggests that the CHA criteria create enforceable statutory duties on the part of the federal government that could form the basis for actionable individual claims. (8)

2. Provincial Statutory Remedies

General Principles

Under section 11.2(1) of the Ontario Health Insurance Act (OHIA), insured services are:

1. Prescribed services of hospitals and health facilities rendered under such conditions and limitations as may be prescribed.

2. Prescribed medically necessary services rendered by physicians under such conditions and limitations as may be prescribed.

3. Prescribed health care services rendered by prescribed practitioners under such conditions and limitations as may be prescribed. (9)

Prescribed services are those which are listed in the Act's Regulations. The Ministry of Health and Long-Term Care publishes a "Schedule of Benefits--Physician Services" (SOB-PS), which serves as a comprehensive and exhaustive list of services covered under the Ontario Health Insurance Plan (OHIP). (10)

Medically Necessary

The courts have strictly applied the OHIA and highlighted the importance of medical necessity as a precondition to insurance coverage:

The primary purpose of the Health Insurance Act is to insure hospital and medically necessary physician services. The purpose of the SOB-PS is to define the vast array of medically necessary services and to set fair and reasonable compensation for these services, keeping in mind the budgetary restrictions affecting the government. (11) The problem is that medical necessity has not been clearly defined in the CHA or in provincial health insurance legislation. The Nova Scotia Court of Appeal has considered the issue in that province in Cameron, where the preamble of the fee schedule defines "medically necessary" as services provided by a physician for the diagnosis, treatment or prevention of physical or mental disease or dysfunction. (12) The Court did not accept this as a binding definition, and noted that the word "services", which is used in the health insurance statute and regulations, is not confined to diagnosis, treatment and prevention, suggesting that the scope of medical necessity could potentially be wider than the definition allowed.

The Court in Cameron cited the Canadian Bar Association Task Force on Health Care Reform, which has criticized the federal government's failure to include a definition of "medical necessity" in the CHA. (13) This, according to the Task Force, leaves too much discretion with provinces to establish their own definitions, with most preferring to avoid committing themselves to a substantive definition. Consequently, "the scope of 'medically required services' and indeed, all 'insured health services', is a policy decision" as opposed to a principled and legally enforceable one. (14) The Court went on to adopt the CBA's conclusion that, while there is a statutory right to health insurance, the current legislative framework does not create a right to health care, since the content of insured services is decided as a matter of policy rather than law, and there is no guarantee of procedural fairness in the listing or de-listing of those services. (15)

Experimental Treatment

An important exception to the list of insured services is any "[t]reatment for a medical condition that is generally accepted within Ontario as experimental", even if it is medically necessary and administered by a physician in a hospital. (16) The term "experimental" is not defined anywhere in the legislation and has been the subject of significant confusion. In a number of decisions, the Health Services Appeal and Review Board (HSARB) has used dictionary definitions of "experimental" in an attempt to give substantive meaning to this clause. It has cited such terms as "tentative", "unproven", "test" and "trial" in its efforts to bring clarity to the issue. (17) In one instance, the Board posited that an experimental procedure is one which seeks to discover or confirm new results, as opposed to a procedure which is an accepted practice with proven beneficial results based on objective standards. (18)

The Board has also noted the importance of local medical practices. The treatment must be considered experimental within Ontario, meaning that even if a particular treatment enjoys widespread acceptance and practice elsewhere, if it is considered new and original in Ontario, it will not be insured under the OHIA.

In a case dealing with multi-modality cancer treatments, the HSARB required that a treatment satisfy all of the following criteria in order to be accepted as non-experimental:

1. The procedure is accepted as appropriate in a number of respected academic and clinical cancer centres;

2. It is supported by published peer reviewed articles in respected journals;

3. It is publicly funded and funded by private insurers;

4. It is merely an extension of pre-existing and widely accepted therapeutic modalities. (19)

The HSARB has distinguished between developmental and experimental procedures. While the former is an extension of procedures already developed and accepted in the field (and thus not necessarily experimental), the latter are unproven and are based on novel principles. (20) In another decision, the Board found that if one aspect of the treatment is experimental, the whole treatment will be tainted and deemed experimental...