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Insite: CMA submission regarding Insite supervised injection site and program.

https://policybase.cma.ca/en/permalink/policy14129

Date
2011-02-17
Topics
Health care and patient safety
Pharmaceuticals/ prescribing/ cannabis/ marijuana/ drugs
  1 document  
Policy Type
Court submission
Date
2011-02-17
Topics
Health care and patient safety
Pharmaceuticals/ prescribing/ cannabis/ marijuana/ drugs
Text
S.C.C. File No.: 33556 IN THE SUPREME COURT OF CANADA (APPEAL FROM THE BRITISH COLUMBIA COURT OF APPEAL) BETWEEN: ATTORNEY GENERAL OF CANADA AND MINISTER OF HEALTH FOR CANADA Appellants (Appellants/Cross-Respondents) —and — PHS COMMUNITY SERVICES SOCIETY, DEAN EDWARD WILSON and SHELLY TOMIC, VANCOUVER AREA NETWORK OF DRUG USERS (VANDU) Respondents (Respondents/Cross-Appellants) —and — ATTORNEY GENERAL OF BRITISH COLUMBIA Respondent (Respondent) —and — ATTORNEY GENERAL OF QUEBEC, DR. PETER AIDS FOUNDATION, VANCOUVER COASTAL HEALTH AUTHORITY, CANADIAN CIVIL LIBERTIES ASSOCIATION, CANADIAN HIV/AIDS LEGAL NETWORK, INTERNATIONAL HARM REDUCTION ASSOCIATION AND CACTUS MONTREAL, CANADIAN NURSES ASSOCIATION, REGISTERED NURSES' ASSOCIATION OF ONTARIO AND ASSOCIATION OF REGISTERED NURSES OF BRITISH COLUMBIA, CANADIAN PUBLIC HEALTH ASSOCIATION, CANADIAN MEDICAL ASSOCIATION, BRITISH COLUMBIA CIVIL LIBERTIES ASSOCIATION, BRITISH COLUMBIA NURSES'S UNION Interveners FACTUM OF THE INTERVENER, CANADIAN MEDICAL ASSOCIATION BORDEN LADNER GERVAIS LLP 100 Queen Street — Suite 1100 Ottawa, ON KIP 1J9 Guy J. Pratte/Nadia Effendi Tel: (613) 237-5160 Fax: (613) 230-8842 Counsel for the Intervener, Canadian Medical Association 2 TO: Roger Bilodeau, Q.C. REGISTRAR SUPREME COURT OF CANADA AND TO: Robert J. Frater Attorney General of Canada Bank of Canada Building 234 Wellington Street, Room 1161 Ottawa, Ontario KlA OH8 Telephone: (613) 957-4763 FAX: (613) 954-1920 E-mail: robert.fratergustice.gc.ca Counsel for Appellant/Respondent on Cross- Appeal, the Attorney General of Canada Robert J. Frater Attorney General of Canada Bank of Canada Building 234 Wellington Street, Room 1161 Ottawa, Ontario KlA OH8 Telephone: (613) 957-4763 FAX: (613) 954-1920 E-mail: robert.frater@justice.gc.ca Counsel for Appellant/Respondent on Cross- Appeal, the Minister of Health for Canada Joseph H. Arvay, Q.C. Arvay Finlay 1350 - 355 Burrard Street Vancouver, British Columbia V6C 2G8 Telephone: (604) 689-4421 FAX: (604) 687-1941 E-mail: jarvay@arvayfinlay.com Counsel for Respondent, PHS Community Services Society Jeffrey W. Beedell McMillan LLP 300 - 50 O'Connor Street Ottawa, Ontario K113 6L2 Telephone: (613) 232-7171 FAX: (613) 231-3191 E-mail: jeffbeedell@mcmillan.ca Agent for Respondent, PHS Community Services Society 3 Joseph H. Arvay, Q.C. Arvay Finlay 1350 - 355 Burrard Street Vancouver, British Columbia V6C 2G8 Telephone: (604) 689-4421 FAX: (604) 687-1941 E-mail: jarvay@arvayfinlay.com Counsel for Respondent, Dean Edward Wilson and Shelly Tomic John W. Conroy, Q.C. Conroy & Company 2459 Pauline St Abbotsford, British Columbia V2S 3S1 Telephone: (604) 852-5110 FAX: (604) 859-3361 E-mail: jconroy@johnconroy.com Counsel for Respondent/Appellant on Cross- Appeal, Vancouver Area Network of Drug Users (VANDU) Craig E. Jones Attorney General of British Columbia 1001 Douglas Street, 6th floor Victoria, British Columbia V8V 1X4 Telephone: (250) 387-3129 FAX: (250) 356-9154 E-mail: craigjones@gov.bc.ca Counsel for Respondent, the Attorney General of British Columbia Hugo Jean Procureur general du Quebec 1200 Route de l'Èglise, 2e etage Ste-Foy, Quebec G1V 4M1 Telephone: (418) 643-1477 FAX: (418) 644-7030 E-mail: hjean@justice.gouv.qc.ca Counsel for Intervener, Attorney General of Quebec Jeffrey W. Beedell McMillan LLP 300 - 50 O'Connor Street Ottawa, Ontario K113 6L2 Telephone: (613) 232-7171 FAX: (613) 231-3191 E-mail: jeffbeedell@mcmillan.ca Agent for Respondent, Dean Edward Wilson and Shelly Tomic Henry S. Brown, Q.C. Gowling Lafleur Henderson LLP 2600 - 160 Elgin St P.O. Box 466, Stn "D" Ottawa, Ontario KIP 1C3 Telephone: (613) 233-1781 FAX: (613) 788-3433 E-mail: henry.brown@gowlings.com Agent for Respondent/Appellant on Cross- Appeal, Vancouver Area Network of Drug Users (VANDU) Robert E. Houston, Q.C. Burke-Robertson 70 Gloucester Street Ottawa, Ontario K2P 0A2 Telephone: (613) 566-2058 FAX: (613) 235-4430 E-mail: rhouston@burkerobertson.com Agent for Respondent, the Attorney General of British Columbia Pierre Landry Noel & Associes 111, rue Champlain Gatineau, Quebec J8X 3R1 Telephone: (819) 771-7393 FAX: (819) 771-5397 E-mail: p.landry@noelassocies.com Agent for Intervener, Attorney General of Quebec 4 Andrew I. Nathanson Fasken Martineau DuMoulin LLP 2900 - 550 Burrard Street Vancouver, British Columbia V6C 0A3 Telephone: (604) 631-4908 FAX: (604) 631-3232 Counsel for Intervener, Dr. Peter AIDS Foundation Ryan D. W. Dalziel Bull, Housser & Tupper LLP 3000 - 1055 West Georgia Street Vancouver, British Columbia V6E 3R3 Telephone: (604) 641-4881 FAX: (604) 646-2671 E-mail: rdd@bht.com Counsel for Intervener, British Columbia Civil Liberties Association Sheila Tucker Davis LLP 2800 Park Place 666 Burrard Street Vancouver, British Columbia V6C 2Z7 Telephone: (604) 643-2980 FAX: (604) 605-3781 E-mail: stuckergdavis.ca Counsel for Intervener, Vancouver Coastal Health Authority Paul F. Monahan Fasken Martineau DuMoulin LLP 333 Bay Street, Suite 2400 Bay Adelaide Centre, Box 20 Toronto, Ontario M5H 2T6 Telephone: (416) 366-8381 FAX: (416) 364-7813 E-mail: pmonahan@fasken.com Counsel for Intervener, Canadian Civil Liberties Association Scott M. Prescott Fasken Martineau DuMoulin LLP 1300 - 55 Metcalfe Street Ottawa, Ontario K1P 6L5 Telephone: (613) 236-3882 FAX: (613) 230-6423 E-mail: sprescott@fasken.com Agent for Intervener, Dr. Peter AIDS Foundation Brian A. Crane, Q.C. Gowling Lafleur Henderson LLP 2600 - 160 Elgin St Ottawa, Ontario K1P 1C3 Telephone: (613) 233-1781 FAX: (613) 563-9869 E-mail: brian.crane@gowlings.com Agent for Intervener, British Columbia Civil Liberties Association Marie-France Major McMillan LLP 300 - 50 O'Connor Street Ottawa, Ontario K113 6L2 Telephone: (613) 232-7171 FAX: (613) 231-3191 E-mail: mane-france.maior@mcmillan.ca Agent for Intervener, Vancouver Coastal Health Authority Julia Kennedy Fasken Martineau DuMoulin LLP 55 Metcalfe Street Suite 1300 Ottawa, Ontario K1P 6L5 Telephone: (613) 236-3882 FAX: (613) 230-6423 E-mail: ikennedy(&fasken.com Agent for Intervener, Canadian Civil Liberties Association Michael A. Feder McCarthy Tétrault LLP Suite 1300, 777 Dunsmuir Street Vancouver, British Columbia V7Y 1 K2 Telephone: (604) 643-5983 FAX: (604) 622-5614 E-mail: mfeder(qmccarthv.ca Counsel for Intervener, the Canadian HIV/AIDS Legal Network, International Harm Reduction Association and CACTUS Montréal Rahool P. Agarwal Ogilvy Renault LLP 3800 - 200 Bay Street Toronto, Ontario M5J 2Z4 Telephone: (416) 216-3943 FAX: (416) 216-3930 E-mail: ragarwal(iogilvyrenaul1.com Counsel for Intervener, Canadian Nurses Association, Registered Nurses' Association of Ontario and Association of Registered Nurses of British Columbia Owen M. Rees Stockwoods LLP 77 King Street West Suite 4130, P.O. Box 140 Toronto, Ontario M5K IHI Telephone: (416) 593-7200 FAX: (416) 593-9345 E-mail: owenr~stockwoods.ca Counsel for Intervener, Canadian Public Health Association 5 Brenda C. Swick McCarthy Tétrault LLP 200 - 440 Laurier Avenue West Ottawa, Ontario KIR 7X6 Telephone: (613) 238-2000 FAX: (613) 563-9386 Agent for Intervener, the Canadian HIV/AIDS Legal Network, International Harm Reduction Association and CACTUS Montréal Sally A. Gomery Ogilvy Renault LLP 1500 - 45, O'Connor Street Ottawa, Ontario KIP lA4 Telephone: (613) 780-8661 FAX: (613) 230-5459 E-mail: sgomery(qogilvyrenaul1.com Agent for Intervener, Canadian Nurses Association, Registered Nurses' Association of Ontaro and Association of Registered Nurses of British Columbia Dougald E. Brown Nelligan O'Brien Payne LLP 1500 - 50 O'Connor S1. Ottawa, Ontario KIP 6L2 Telephone: (613) 231-8210 FAX: (613) 788-3661 E-mail: dougald.brown(inelligan.ca Agent for Intervener, Canadian Public Health Association Marjorie Brown Victory Square Law Office 100 West Pender Street Suite 500 Vancouver, British Columbia V6B 1R8 Telephone: (604) 684-8421 FAX: (604) 684-8427 E-mail: mbrown(avslo.ca Counsel for Intervener, British Columbia Nurses' Union Michael A. Chambers Maclaren Corlett 50 O'Connor Street, Suite 1625 Ottawa, Ontario KIP 6L2 Telephone: (613) 233-1146 FAX: (613) 233-7190 E-mail: mchambers(amacorlaw.com Counsel for Intervener, Real Women Canada 6 Colleen Bauman Sack Goldblatt Mitchell LLP 500 - 30 Metcalfe St. Ottawa, Ontario KIP 5L4 Telephone: (613) 235-5327 FAX: (613) 235-3041 E-mail: cbauman~sgmlaw.com Agent for Intervener, British Columbia Nurses' Union TABLE OF CONTENTS Part I — Statement of Facts ........................................................................................................... .1 A. Overview ......................................................................................................................... 1 B. CMA's Interest in the Appeal ............................................................................................ 1 C. CMA's Position on the Facts ............................................................................................ 1 Part II — Statement of the Questions in Issue ................................................................................3 Part III — Statement of Argument .................................................................................................3 A. Charter Interpretation Must be Guided by Reality, Not Ideology ......................................... 3 B. The Impugned Provisions Infringe Section 7 of the Charter ................................................. 5 (1)Denying Access to Necessary Health care Infringes Section 7 of the Charter.................. 5 (2)The Rights to Life and Security of Patients Have Been Infringed ................................... 5 (3)Drug Addicts Have Not Waived Their Statutory and Constitutional Right to Treatment .................................................................................................................. 6 (4)The Rights to Liberty of the Individual Respondents Have Been Infringed ..................... 8 (5)The Principles of Fundamental Justice Have Not Been Respected ................................. 8 a) The Impugned Provisions Are Arbitrary ..................................................................... 8 b) The Impugned Provisions Are Overbroad ................................................................... 9 C. If There is an Infringement of Section 7, the Law is Not Saved by Section 1 of the Charter ................................................................................................................................ 9 D. Remedy ......................................................................................................................... 10 Part IV — Submissions as to Costs .............................................................................................. 10 Part V — Order Sought ................................................................................................................10 Part VI — Table of Authorities .................................................................................................... 11 Part VII — Statutes, Regulations, Rules ...................................................................................... 13 PART I — STATEMENT OF FACTS A. Overview 1. Fair and equitable access to medically necessary, evidenced-based health care is of fundamental importance to Canadian patients and physicians, as this Court recognized in Chaoulli. 2. Where life and security of a person is at risk because of a medical condition, like drug addiction, the Court's delineation of a government or legislature's constitutional obligations should be guided by facts. Unfounded ideological assumptions about the character of patients must not trump clinical judgment based on the best medical evidence available; otherwise, the life, liberty and security of patients is put at risk arbitrarily, contrary to section 7 of the Charter. 3. The Appellants' position that those addicted to drugs have foregone any right to access medical treatment is antithetical to the raison d'être of the Canadian health care system and inconsistent with the federal government's obligations under section 7 of the Charter. 4. Neither the statutory law nor the Constitution allows the state to deny access to health care because of "lifestyle" choices or presumed waiver of legal or constitutional rights. B. CMA's Interest in the Appeal 5. The Canadian Medical Association ("CMA") is the national voice of Canadian physicians with over 74,000 members across the country. Its mission is to serve and to unite the physicians of Canada and to be the national advocate, in partnership with the people of Canada, for the highest standards of health and heath care. 6. Critical to CMA's role is the upholding of harm reduction as one pillar in a comprehensive public health approach to disease prevention and health promotion. Further, the CMA possesses a distinct expertise and broad-based knowledge of many aspects of policy and law concerning harm reduction as a clinically mandated and ethical method of care and treatment. C. CMA's Position on the Facts 7. By Order dated February 17, 2011, the CMA was granted leave to intervene in this Appeal. 2 8. The CMA accepts the facts as stated by the Respondents. 9. This appeal flows from separate actions commenced by some of the Respondents seeking relief that would obviate the need for exemptions granted by the Federal Minister of Health under section 56 of the Controlled Drugs and Substances Act (the "Act"), S.C. 1996 c. 19. Thus, when within the confines of the Vancouver Safe Injection Site ("Insite"), patient drug users were not liable to prosecution for possession of a controlled substance contrary to section 4(1) of the Act, or staff for trafficking contrary to section 5(1). The initial exemptions, based on "necessity for a scientific purpose", were granted for a term of three years commencing September 12, 2003. They were thereafter extended to December 31, 2007, and then to June 30, 2008. Insite's ability to operate was dependent upon the exemptions. However, no further extensions were forthcoming. 10. In their actions, the Respondents, in addition to the division of powers argument, contended that sections 4(1) and 5(1) of the Act violated section 7 of the Charter, were unconstitutional, and should be struck down. The Respondents were successful before the Applications Judge and the Court of Appeal. 11. The Applications Judge found that sections 4(1) and 5(1) of the Act infringed section 7 of the Charter and declared them to be of no force and effect. 12. On appeal by the Attorney General of Canada and cross-appeal by the Respondents, PHS, Wilson and Tomic, the majority of the Court of Appeal found that sections 4(1) and 5(1) of the Act were inapplicable to Insite by reason of the application of the doctrine of interjurisdictional immunity. 13. In concurring reasons, Rowles J.A. also found that sections 4(1) and 5(1) engaged section 7 of the Charter and that such application did not accord with the principles of fundamental justice because of overbreadth. 14. The findings of the Applications Judge and Rowles J.A. under the Charter are, the CMA submits, premised on the correct and supported fact that harm reduction is an evidenced-based form of medical treatment for patient drug addicts suffering from the illness of addiction. It is unconstitutional for governments to prevent access to treatment on pain of criminal penalty and deprivations of life, liberty and security of the person on grounds informed by ideological 3 assumptions and not the evidence. PART II - STATEMENT OF THE QUESTIONS IN ISSUE 15. The following constitutional questions, as stated by the Chief Justice on September 2, 2010, are to be determined in this appeal: 1. Are ss. 4(1) and 5(1) of the Controlled Drugs and Substances Act, S.c. 1996, c. 19, constitutionally inapplicable to the activities of staff and users at Insite, a health care undertaking in the Province of British Columbia? 2. Does s. 4(1) of the Controlled Drugs and Substances Act, S.c. 1996, c. 19, infringe the rights guaranteed by s. 7 of the Canadian Charter of Rights and Freedoms? 3. If so, is the infringement a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society under s. 1 of the Canadian Charter of Rights and Freedoms? 4. Does s. 5(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19, infringe the rights guaranteed by s. 7 of the Canadian Charter of Rights and Freedoms? 5. If so, is the infringement a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society under s. 1 of the Canadian Charter of Rights and Freedoms? 16. Questions two to five, which relate to the Charter, are of particular importance for the CMA, and are addressed in more detail below. The CMA submits that sections 4(1) and 5(1) of the Act infrnge the rights guaranteed by section 7 of the Charter and are not justified under section 1. PART III - STATEMENT OF ARGUMENT A. Charter Interpretation Must be Guided by Reality, Not Ideology 17. When determining whether or not impugned legislation infringes the Charter, courts must not play host to political debates, but instead must rise above them by ensuring that public policy passes constitutional muster. Chaoull v. Québec (Attorney General), (2005) 1 S.c.R. 791, at para. 89 (CMA Authorities, Tab 2). R. v. Morgentaler, (1988)1 S.C.R. 30 at 45-46 (CMA Authorities, Tab 13). 18. The Appellants' position is clearly premised on ideological preconceptions with regard to individuals suffering from addictions. Yet, as the history of birth control legislation in Canada shows, a legal framework informed by ideological assumptions about the morality of patients seeking to control their reproduction can violate a person's most fundamental rights. See R. v. Morgentaler, supra at 62 where the Court rejected arguments that it should assess administrative structures in the abstract: "when denial of a right as basic as security of the person is infringed by the procedure and administrative structures created by the law itself, the courts are empowered to act" (CMA Authorities, Tab 13). 4 19. In order for the courts to meet their role in determining whether a particular piece of legislation is constitutional, it must consider Parliament's enactments by relying on the available evidence. In fact, it is well established that a deprivation of the rights to life, liberty or security of the person must be proven by solid evidence. Taylor, M. and Jamal, M., The Charter of Rights in Litigation, loose-leaf (Canada Law Book: Aurora, 2010) at para. 17:15 [CMA Authorities, Tab 20]. 20. The presentation of facts is not a mere technicality, but rather it is essential to a proper consideration of Charter issues: Charter cases will frequently be concerned with concepts and principles that are of fundamental importance to Canadian society. For example, issues pertaining to freedom of religion, freedom of expression and the right to life, liberty and the security of the individual will have to be considered by the courts. Decisions on these issues must be carefully considered as they will profoundly affect the lives of Canadians and all residents of Canada. In light of the importance and the impact that these decisions may have in the future, the courts have every right to expect and indeed to insist upon the careful preparation and presentation of a factual basis in most Charter cases. The relevant facts put forward may cover a wide spectrum dealing with scientific, social, economic and political aspects. Often expert opinion as to the future impact of the impugned legislation and the results of the possible decisions pertaining to it may be of great assistance to the courts. MacKay v. Manitoba, [1989] 2 S.C.R. 357 at 361 [CMA Authorities, Tab 5]. 21. Specifically, with respect to section 7 of the Charter, this Court has confirmed that the task of the courts is to evaluate the issue in "the light, not just of common sense or theory, but of the evidence". The Court dispenses with unsubstantiated theoretical arguments, relying instead on empirical and scientific evidence presented by the parties: In support of this contention, the government called experts in health administration and policy. Their conclusions were based on the "common sense" proposition that the improvement of health services depends on exclusivity (R.R., at p. 591). They did not profess expertise in waiting times for treatment. Nor did they present economic studies or rely on the experience of other countries. They simply assumed, as a matter of apparent logic, that insurance would make private health services more accessible and that this in turn would undermine the quality of services provided by the public health care system. The appellants, relying on other health experts, disagreed and offered their own conflicting "common sense" argument for the proposition that prohibiting private health insurance is neither necessary nor related to maintaining high quality in the public health care system. Quality public care, they argue, depends not on a monopoly, but on money and management. They testified that permitting people to buy private insurance would make alternative medical care more accessible and reduce the burden on the public system. The result, they assert, would be better care for all [...] To this point, we are confronted with competing but unproven "common sense" arguments, amounting to little more than assertions of belief. We are in the realm of theory. But as discussed above, a theoretically defensible limitation may be arbitrary if in fact the limit lacks a connection to the goal. This brings us to the evidence called by the appellants at trial on the experience of other developed countries with public health care systems which permit access to private health care. The experience of these countries suggests that there is no real connection in fact between prohibition of health insurance and the goal of a quality public health system. 5 Chaoulli, supra at paras. 136-149 (see also paras. 115, 117, 136-149, 150, 152 where the Court refers to Statistics Canada studies and evidence from other western democracies) [CMA Authorities, Tab 2]. See also Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519 at 601-602 [CMA Authorities, Tab 16]. 22. Drug addicts suffer from a medical condition that can be treated. Hence, Insite is designed as a health treatment aimed at reducing the harmful consequences of drug use as well as exposing its vulnerable patients to other health care options. In this context, the federal legislation and government actions at issue amount to a denial of evidence-based medical treatment whose effect is to put the life and security of patients at great risk. 23. Charter interpretation should generally be grounded on fact rather than speculation or ideological assumptions, especially where life and security of the person (i.e., the patient) is at risk because of a medical condition (such as addiction). In such cases, the Court's delineation of the state's constitutional obligations should be guided by evidence-based medicine and independent clinical judgment. Chaoulli, supra at paras. 85, 107 [CMA Authorities, Tab 2]. See also Operation Dismantle Inc. v. The Queen, [1985] 1 S.C.R. 441 at 452-454 [CMA Authorities, Tab 7]; Auton (Guardian ad litem of) v. British Columbia (Attorney General), [2004] 3 S.C.R. 657, at para. 66 [CMA Authorities, Tab 1]. 24. Accordingly, CMA submits that, at the very least, in the health care field where lives are at risk, there must be sound evidentiary basis for legislative and government action that deny medical care. B. The Impugned Provisions Infringe Section 7 of the Charter (1) Denying Access to Necessary Health care Infringes Section 7 of the Charter 25. While the legislature is generally entitled to enact legislation prohibiting drug use or trafficking, this legislation (however well-intended) cannot have the effect of putting the lives of affected persons at risk. This Court has already found in Chaoulli that section 7 of the Charter was infringed when governments impeded timely patient access to care. (2) The Rights to Life and Security of Patients Have Been Infringed 26. Both the Applications Judge and the Court of Appeal found that the right to life and security was engaged in the present case. The evidence on these issues was plentiful: 1. Addiction is an illness. One aspect of the illness is the continuing need or craving to consume the substance to which the addiction relates; 6 2. Injection drug use leads to an increased incidence and prevalence of infectious diseases including HIV/AIDS, Hepatitis A, B and C, and skin- and blood-borne infections; frequent drug overdoses resulting in significant morbidity and mortality; increased hospital and emergency service utilization; 3. The risk of morbidity and mortality associated with addiction and injection is ameliorated by injection in the presence of qualified health professionals at Insite; 4. User of Insite who are addicted to heroin, cocaine and other controlled substances are not engaged in recreation. Their addiction is an illness frequently, if not invariably, accompanied by serious infections and the real risk of overdose. Reasons for Judgment of the Applications Judge, paras. 87, 89, 135-136, Appellants' Record, Vol. I, pp. 24-25, 34. See also Reasons for Judgment of the B.C. Court of Appeal, para. 30, Appellants' Record, Vol. I, p. 65. (3) Drug Addicts Have Not Waived Their Statutory and Constitutional Right to Treatment 27. The Appellants did not really dispute the medical evidence to the effect that addiction to drugs was a disease. They sought instead to justify their position by claiming that drug addicts had "chosen" their lifestyle and were solely responsible for their medical condition. For the following reasons, this "rationale" does not pass constitutional muster. 28. The Appellants assert that the section 7 rights are not engaged as they stem from an alleged "choice made by the consumer", relying on the fact that 95% of the injections in the downtown east side of Vancouver do not take place at Insite. The Appellants do not explain how this assertion demonstrates why addicts are able to make a choice not to inject themselves, given that it only addresses where they inject themselves. In any event, contrary to the Appellants' choice theory, the evidence before the Applications Judge and his findings were to the contrary: the reasons for the addiction and resulting need are based on a complicated combination of personal, governmental and legal factors, some of which lend themselves to choice and others that do not.' Further, the Applications Judge found that it is the illness of addiction, and the failure to manage it, that has led to further illness and death. Reasons for Judgment of the Applications Judge, paras. 65, 89, 142, Appellants' Record, Vol. I, pp. 21, 24-25, 35. See also Reasons for Judgment of the B.C. Court of Appeal, para. 39, Appellants' Record, Vol. I, p. 67. Contra the facts in R. v. Malmo-Levine; R. v. Caine, [2003] 3 S.C.R. 571 [Malmo-Levine] [CMA Authorities, Tab 12]. 29. The Appellants' position amounts to a claim that the users of Insite have effectively waived their constitutional rights under section 7. Notwithstanding that the jurisprudence is In fact, the evidence is clear that in the case of the Respondent Tomic, her first experience with illegal drugs was not a personal choice [Reasons for Judgment of the Applications Judge, para. 65, Appellants' Record, Vol. I, p. 21]. 7 unclear as to whether a right under section 7 can actually be waived, it is well established that a waiver or a renunciation of any right under the Charter must be voluntary, freely expressed and accompanied with a clear understanding of the purpose the right was meant to serve and the consequences of declining its protection. There is no evidence whatsoever that the patients of Insite who suffer from addiction, knowingly and unequivocally waived their rights under the Charter, and more specifically their right to access medical treatment. See e.g. Godbout v. Longueuil (City), [1997] 3 S.C.R. 844, at paras. 71-72; Syndicat Northcrest v. Amselem, [2004] 2 S.C.R. 551, at paras. 96-102; R. v. Richard, [1996] 3 S.C.R. 525, at paras. 22-26; R. v. L.T.H., [2008] 2 S.C.R. 739, at paras. 41-42; R. v. Clarkson, [1986] 1 S.C.R. 383 at 394-396; Korponay v. Canada (Attorney General), [1982] 1 S.C.R. 41 at 49; Yorkton Union Hospital v. S.U.N. (1993), 16 Admin. L.R. (2d) 272, at para. 44 (C.A.) [CMA Authorities, Tabs 3, 17, 15, 11, 8, 4, 18 respectively]. 30. Indeed, Canadians do not forego their right to health care or to protection from section 7 violations because of their "choice" of lifestyles. The Appellants' position that addicts must take responsibility for the choice they make undermines the raison d'être of the Canadian health care system, namely (as found by the Applications Judge and the Court of Appeal) the fundamental right of Canadians to access medical treatment and the ethical and clinical responsibilities of their health care providers. 31. The Appellants' position skirts the clinical question at issue for physicians and their patients: physicians must treat patients as a matter of good medical practice and ethical obligation, whether the patient is believed to contribute to his or her injury or not. In Canada, neither the ethical obligations of physicians to treat patients, nor the patients' legal right to treatment, are subject to a moral assessment of a patient's lifestyle. Behaviours that might be deemed "risky" do not deprive patients of their rights of access to clinically required medical care. 32. Section 31 of CMA's Code of Ethics (relied on by the Court in the past e) provides that all physicians must "[r]ecognize the responsibility of physicians to promote fair access to health care resources". The patients at Insite would be deprived of positive health outcomes if Insite were to close or even continue to operate under the ongoing threat of closure. 33. Adopting the Appellants' approach to Charter interpretation would set an extremely dangerous precedent. Thus, if one were to apply the rationale of "choice" to other medical 2 See e.g. R. v. Dersch, [1993] 3 S.C.R. 768 at 784-785, where the Court refers to CMA's Code of Ethics [CMA Authorities, Tab 9]. 8 contexts, such as chronic disease, patients suffering from diabetes because of contributing factors such as poor nutrition and lack of exercise would, under the same logic, be denied medical care. Indeed, many of the complex elements beyond individual choice such as socio-economic and genetic factors found by the Applications Judge in the case at bar to shape addiction as an ilness are prevalent in other diseases. This approach would be not only unethical and clinically unsound, but unconstitutionaL. (4) The Rights to Liberty of the Individual Respondents Have Been Infringed 34. The courts have recognized that the threat of criminal prosecution and possibility of imprisonment for an offence is suffcient to trigger the liberty interest and scrutiny under section 7. Malmo-Levine, supra at para. 84 ICMA Authorities, Tab 12). R. v. Parker (2000),188 D.L.R. 4th 385, at para. 101 (Ont. C.A.) ICMA Authorities, Tab 14). 35. Vulnerable patients suffering from addiction and the health care providers who provide treatment at Insite suffer violations of their constitutionally guaranteed rights (section 7 of the Charter) because of the threat of prosecution under the Act. The uncertainty associated with a ministerial exemption mechanism for Insite from certain provisions of the Act imposes a great burden on those already labouring under the weight of addiction. Moreover, health care providers are also put at risk in their ability to provide medically necessary and evidence-based health care services in a timely manner to all citizens by the capricious exemption mechanism contained in the Act. (5) The Principles of Fundamental Justice Have Not Been Respected 36. It is well established that a law that is arbitrary or overbroad will constitute a breach of the principles of fundamental justice. The CMA submits that the Applications Judge was correct when he found that the impugned provisions were arbitrary, or if not arbitrary, grossly disproportionate and overbroad. The Court of Appeal agreed that the provisions were overbroad. P. Hogg, Constitutional Law of Canada, 5th ed., loose-leaf (Carswell: Toronto, 2007) at 47-52 to 47-60.1 ICMA Authorities, Tab 19). R. v. Heywood, (1994) 3 S.c.R. 761 at 792-794 ICMA Authorities, Tab 10). Chaoull, supra at para. 127 ICMA Authorities, Tab 2). Rodriguez, supra at 590-591 ICMA Authorities, Tab 16). a) The Impugned Provisions Are Arbitrary 37. A law is arbitrary when it bears no relation to, or is inconsistent with, the objective that 9 lies behind it. In order not to be arbitrary, a limit on the section 7 right requires not only a theoretical connection between the limit and the legislative goal, but a real connection on the facts. Chaoulli, supra at paras. 130-131 [CMA Authorities, Tab 2]. 38. In the present case, by prohibiting access to evidence-based, medically necessary care, the government has contributed to the very harm it claims it seeks to prevent, i.e. drug possession and addiction. The best available medical evidence suggests that clinics such as Insite not only protect life, but offer positive health outcomes and care alternatives to vulnerable patients. 39. Moreover, the justification of any denial of access to necessary medical care based on ideology rather than facts is arbitrary since, by definition, it bears no real connection to the facts. b) The Impugned Provisions Are Overbroad 40. It is a well-established principle of fundamental justice that criminal legislation must not be overbroad. If the government, in pursuing a legitimate objective, uses means which are broader than is necessary to accomplish that objective, the principles of fundamental justice will be violated. Heywood, supra at 792-793 [CMA Authorities, Tab 10]. See also Malmo-Levine, supra at paras. 130-131 [CMA Authorities, Tab 12]. 41. A fortiori, that will be true when the state itself has a particular interest in acting to protect vulnerable persons. In the present case, the evidence before the Applications Judge demonstrated that harm reduction has been a component of Canada's drug strategy for many years. In 2002, the House of Commons Special Committee on the Non-Medical Use of Drugs rejected the dichotomy between harm reduction and an abstinence-based treatment model. It also specifically considered the creation of a safe injection facility in the downtown east side of Vancouver because it recognized that that community presented a "public health disaster". 42. Hence, while the government may be justified in preventing drug possession and trafficking, it cannot cast a legislative prohibition so widely that it captures persons in need of medical care. C. If There is an Infringement of Section 7, the Law is Not Saved by Section 1 of the Charter 43. Should the Court find that sections 4(1) and 5(1) of the Act infringe the rights guaranteed Guy Pratt /Nadia ffend Borden L dner Gervais L 1 0 by section 7 of the Charter, the CMA submits that the provisions cannot be justified under section 1 of the Charter as any law that offends the principles of fundamental justice cannot be justified, and more specifically, meet the minimal impairment branch of the section 1 analysis. See e.g. New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46, at para. 99 [CMA Authorities, Tab 6]; Heywood, supra at 802-803 [CMA Authorities, Tab 10]. D. Remedy 44. Fundamental justice requires either permanent exemptions or a declaration that the impugned law, as it applies to users of supervised injection sites, is invalid. The CMA submits that this position is consistent with sound constitutional interpretation of section 7 of the Charter, while protecting the most vulnerable patient populations in accordance with evidence-based medicine and physicians' ethical obligations. PART IV — SUBMISSIONS AS TO COSTS 45. The CMA seeks no costs and asks that none be awarded against it. PART V — ORDER SOUGHT 46. The CMA submits that constitutional questions two and four should be answered affirmatively. Should the Court answer these questions in the affirmative, however, constitutional questions three and five should be answered negatively. 47. The CMA seeks leave of this Court, pursuant to rule 59(2) of the Rules of the Supreme Court of Canada, to present oral argument at the hearing of this appeal. Rules of the Supreme Court of Canada, SOR/83-74, as amended, Rule 59(2) [Part VII of Factum]. ALL OF WHICH IS RESPECTFULLY SUBMITTED THIS 13th DAY OF APRIL, 2011. OTTO1 \ 4423086 \ 7 11 PART VI — TABLE OF AUTHORITIES TAB SOURCES Paras. in factum where cited Cases 1. Auton (Guardian a litem of) v. British Columbia (Attorney General), [2004] 3 S.C.R. 657 23 2. Chaoulli v. Quebec (Attorney General), [2005] 1 S.C.R. 791 17, 21, 23, 36, 37 3. Godbout v. Longueuil (City), [1997] 3 S.C.R. 844 29 4. Korponay v. Canada (Attorney General), [1982] 1 S.C.R. 41 29 5. MacKay v. Manitoba, [1989] 2 S.C.R. 357 20 6. New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46 43 7. Operation Dismantle Inc. v. The Queen, [1985] 1 S.C.R. 441 23 8. R. v. Clarkson, [1986] 1 S.C.R. 383 29 9. R. v. Dersch, [1993] 3 S.C.R. 768 32 10. R. v. Heywood, [1994] 3 S.C.R. 761 36, 40, 43 11. R. v. L.T.H., [2008] 2 S.C.R. 739 29 12. R. v. Malmo-Levine; R. v. Caine, [2003] 3 S.C.R. 571 28, 34, 40 13. R. v. Morgentaler, [1988] 1 S.C.R. 30 17, 18 14. R. v. Parker (2000), 188 D.L.R. 4th 385 (Ont. C.A.) 34 15. R. v. Richard, [1996] 3 S.C.R. 525 29 16. Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519 21, 36 17. Syndicat Northcrest v. Amselem, [2004] 2 S.C.R. 551 29 18. Yorkton Union Hospital v. S. UN. (1993), 16 Admin. L.R. (2d) 272 (Sask. C.A.) 29 12 TAB SOURCES Paras. where in factum cited Secondary Sources 19. Hogg, P., Constitutional Law of Canada, 5th ed., loose-leaf (Carswell: Toronto, 2007) at 47-52 to 47-60.1. 36 20. Taylor, M. and Jamal, M., The Charter of Rights in Litigation, loose-leaf (Canada Law Book: Aurora, 2010) at para. 17:15 19 13 PART VII — STATUTES, REGULATIONS, RULES
Canadian Charter of Rights and Freedom, sections 1 and 7
Controlled Drugs and Substances Act, S.C. 1996, c. 19, sections 4(1), 5(1), 56
Rules of Supreme Court of Canada, SOR/83-74, as amended, Rule 59 14 Canadian Charter of Rights and Freedoms PART I OF THE CONSTITUTION ACT, 1982 Charte canadienne des droits et libertes PARTIE I DE LA LOI CONSTITUTIONNELLE DE 1982 Rights and freedoms in Canada 1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. Life, liberty and security of person 7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. Droits et libertes au Canada 1. La Charte canadienne des droits et libertes garantit les droits et libertós qui y sont enonces. Its ne peuvent etre restreints que par une regle de droit, dans des limites qui soient raisonnables et dont la justification puisse se demontrer dans le cadre d'une society libre et democratique. Vie, liberte et securite 7. Chacun a droit a la vie, a la liberte et a la securite de sa personne; it ne peut etre porte atteinte a ce droit qu'en conformite avec les principes de justice fondamentale. 15 Controlled Drugs and Substances Act S.C. 1996, c. 19 Possession of substance 4. (1) Except as authorized under the regulations, no person shall possess a substance included in Schedule I, II or III. Trafficking in substance 5. (1) No person shall traffic in a substance included in Schedule I, II, III or IV or in any substance represented or held out by that person to be such a substance. Exemption by Minister 56. The Minister may, on such terms and conditions as the Minister deems necessary, exempt any person or class of persons or any controlled substance or precursor or any class thereof from the application of all or any of the provisions of this Act or the regulations if, in the opinion of the Minister, the exemption is necessary for a medical or scientific purpose or is otherwise in the public interest. Loi reglementant certaines drogues et autres substances L.C. 1996, ch. 19 Possession de substances 4. (1) Sauf dans les cas autorises aux termes des reglements, la possession de toute substance inscrite aux annexes I, II ou III est interdite. Trafic de substances 5. (1) Il est interdit de faire le trafic de toute substance inscrite aux annexes I, II, III ou IV ou de toute substance presentee ou tenue pour telle par le trafiquant. Exemption par le ministre 56. S'il estime que des raisons medicales, scientifiques ou d'interet public le justifient, le ministre peut, aux conditions qu'il fixe, soustraire a l'application de tout ou partie de la presente loi ou de ses reglements toute personne ou categorie de personnes, ou toute substance designee ou tout precurseur ou toute categorie de ceux-ci. 16 Rules of the Supreme Court of Canada (in force on October 13, 2006) Regles de la Cour supreme du Canada. (en vigueur le 13 octobre 2006) 59. (1) In an order granting an intervention, the judge may (a) make provisions as to additional disbursements incurred by the appellant or respondent as a result of the intervention; and (b)impose any terms and conditions and grant any rights and privileges that the judge may determine, including whether the intervener is entitled to adduce further evidence or otherwise to supplement the record. (2)In an order granting an intervention or after the time for filing and serving all of the memoranda of argument on an application for leave to appeal or the facta on an appeal or reference has expired, a judge may, in their discretion, authorize the intervener to present oral argument at the hearing of the application for leave to appeal, if any, the appeal or the reference, and determine the time to be allotted for oral argument. (3)An intervener is not permitted to raise new issues unless otherwise ordered by a judge. 59. (1) Dans l'ordonnance octroyant l'autorisation d'intervenir, le juge petit : a) prevoir comment seront supportes les &pens supplementaires de l'appelant ou de l'intime resultant de l'intervention; b) imposer des conditions et octroyer les droits et privileges qu'il determine, notamment le droit d'apporter d'autres elements de preuve ou de completer autrement le dossier. (2)Dans l'ordonnance octroyant l'autorisation d'intervenir ou aprês l'expiration du Mai de depOt et de signification des memoires de demande d'autorisation d'appel, d'appel ou de renvoi, le juge peut, a sa discretion, autoriser l'intervenant a presenter une plaidoirie orale a l'audition de la demande d'autorisation d'appel, de l'appel ou du renvoi, selon le cas, et determiner le temps alloue pour la plaidoirie orale. (3) Sauf ordonnance contraire d'un juge, l'intervenant n'est pas autorise a soulever de nouvelles questions.

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Chaoulli: CMA/COA submission regarding timeliness of access to health care

https://policybase.cma.ca/en/permalink/policy1956

Last Reviewed
2011-03-05
Date
2004-03-19
Topics
Health systems, system funding and performance
  1 document  
Policy Type
Court submission
Last Reviewed
2011-03-05
Date
2004-03-19
Topics
Health systems, system funding and performance
Text
S.C.C. File No.: 29272 IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE COURT OF APPEAL OF QUEBEC) B E T W E E N: JACQUES CHAOULLI AND GEORGE ZELIOTIS Appellants (Appellants) - and - ATTORNEY GENERAL OF QUÉBEC Respondent (Respondent) - and - ATTORNEY GENERAL OF CANADA Respondent (Mis en cause) - and - ATTORNEY GENERAL OF BRITISH COLUMBIA, ATTORNEY GENERAL OF ONTARIO, ATTORNEY GENERAL OF MANITOBA, ATTORNEY GENERAL OF NEW BRUNSWICK, ATTORNEY GENERAL OF SASKATCHEWAN, AUGUSTIN ROY, SENATOR MICHAEL KIRBY, SENATOR MARJORY LEBRETON, SENATOR CATHERINE CALLBECK, SENATOR JOAN COOK, SENATOR JANE CORDY, SENATOR JOYCE FAIRBAIRN, SENATOR WILBERT KEON, SENATOR LUCIE PÉPIN, SENATOR BRENDA ROBERTSON AND SENATOR DOUGLAS ROCHE, THE CANADIAN MEDICAL ASSOCIATION AND THE CANADIAN ORTHOPAEDIC ASSOCIATION, CANADIAN LABOUR CONGRESS, CHARTER COMMITTEE ON POVERTY ISSUES AND THE CANADIAN HEALTH COALITION, CAMBIE SURGERIES CORPORATION, FALSE CREEK SURGICAL CENTRE INC., DELBROOK SURGICAL CENTRE INC., OKANAGAN PLASTIC SURGERY CENTRE INC., SPECIALTY MRI CLINICS INC., FRASER VALLEY MRI LTD., IMAGE ONE MRI CLINIC INC., MCCALLUM SURGICAL CENTRE LIMITED, 4111044 CANADA INC., SOUTH FRASER SURGICAL CENTRE INC., VICTORIA SURGERY LTD., KAMLOOPS SURGERY CENTRE LTD., VALLEY COSMETIC SURGERY ASSOCIATES INC., SURGICAL CENTRES INC., THE BRITISH COLUMBIA ORTHOPAEDIC ASSOCIATION AND THE BRITISH COLUMBIA ANESTHESIOLOGISTS SOCIETY Interveners FACTUM OF THE INTERVENERS CANADIAN MEDICAL ASSOCIATION AND THE CANADIAN ORTHOPAEDIC ASSOCIATION BORDEN LADNER GERVAIS LLP World Exchange Plaza 1100 – 100 Queen St. Ottawa, Ontario K1P 1J9 Guy Pratte/Freya Kristjanson Tel: (613) 237-5160/(416) 367-6388 Fax: (613) 230-8842/(416) 361-7053 Net: gpratte/fkristjanson@blgcanada.com Solicitors for the Interveners, The Canadian Medical Association and The Canadian Orthopaedic Association AND TO: JACQUES CHAOULLI 21, Jasper Avenue Ville Mont-Royal, Quebec H3P 1J8 Tel.: (514) 738-2377 Fax: (514) 738-4062 Appellant, self-represented AND TO: BERGERON, GAUDREAU, LAPORTE 167, rue Notre Dame de l’Île Gatineau, Quebec J8X 3T3 Richard Gaudreau Tel: (819) 770-7928 Fax: (819) 770-1424 Agent for the Appellant, Jacques Chaoulli AND TO: TRUDEL & JOHNSTON 85, de la Commune Est, 3e étage Montreal, Quebec H2Y 1J1 Philippe H. Trudel Bruce W. Johnston Tel.: (514) 871-8385 Fax: (514) 871-8800 Counsel for the Appellant, George Zéliotis AND TO: MCCARTHY TÉTRAULT LLP 1400 - 40 Elgin Street Ottawa, Ontario K1R 5K6 Colin S. Baxter Tel.: (613) 238-2000 Fax: (613) 238-9836 Agent for the Appellant, George Zéliotis AND TO: BERNARD, ROY ET ASSOCIÉS 8.01 - 1, rue Notre-Dame Est Montreal, Québec H2Y 1B6 Robert Monette Tel.: (514) 393-2336 Fax: (514) 873-7074 Counsel for the Respondent, Attorney General of Québec AND TO: NOËL & ASSOCIÉS 111, rue Champlain Hull, Quebec J8X 3R1 Sylvie Roussel Tel.: (819) 771-7393 Fax: (819) 771-5397 Agent for the Respondent, Attorney General of Quebec AND TO: CÔTE, MARCOUX & JOYAL Complexe Guy Favreau, Tour Est 200, boul. Rene-Levesque O. 5 etage Montréal, Québec H2Z 1X4 André L’Espérance Tel: (514) 283-3525 Fax: (514) 283-3856 Counsel for the Respondent, Attorney General of Canada AND TO: D’AURAY, AUBRY, LEBLANC & ASSOCIÉS 275, rue Sparks Ottawa, Ontario K1A 0H8 Jean-Marc Aubry, Q.C. Tel.: (613) 957-4663 Fax: (613) 952-6006 Agent for the Respondent, Attorney General of Canada AND TO: MINISTRY OF ATTORNEY GENERAL Legal Services Branch 6th Floor, Sussex Building P.O. Box 9280 Stn Prov Govt 1001 Douglas Street Victoria, B.C. V8W 9J7 George H. Copley, Q.C. Tel: (250) 356-8875 Fax: (250) 356-9154 Counsel for the Intervener, Attorney General of British Columbia AND TO: BURKE-ROBERTSON Barristers and Solicitors 70 Gloucester Street Ottawa, Ontario K2P 0A2 Robert E. Houston, Q.C. Tel: (613) 236-9665 Fax: (613) 235-4430 Agent for the Intervener, Attorney General of British Columbia AND TO: ATTORNEY GENERAL OF ONTARIO 720 Bay Street, 4th Floor Toronto, Ontario M5G 2K1 Janet E. Minor Shaun Nalatsuru Tel: (416) 326-4137 Fax: (416) 326-4015 Counsel for the Intervener, Attorney General of Ontario AND TO: BURKE-ROBERTSON Barristers and Solicitors 70 Gloucester Street Ottawa, Ontario K2P 0A2 Robert E. Houston, Q.C. Tel: (613) 236-9665 Fax: (613) 235-4430 Agent for the Intervener, Attorney General of Ontario AND TO: ATTORNEY GENERAL OF MANITOBA Department of Justice 1205-405 Broadway Winnipeg, Manitoba R3C 3L6 Tel: (204) 945-0679 Fax: (204) 945-0053 AND TO: GOWLING LAFLEUR HENDERSON LLP 2600-160 Elgin Street P.O. Box 466, Stn. “D” Ottawa, Ontario K1P 1C3 Henry S. Brown, Q.C. Tel: (613) 233-1781 Fax: (613) 563-9869 Agent for the Intervener, Attorney General of Manitoba AND TO: ATTORNEY GENERAL OF NEW BRUNSWICK P.O. Box 6000, Room 444 670 King St., Centennial Building Fredericton, N.B. E3B 5H1 Gabriel Bourgeois, Q.C. Tel: (506) 453-3606 Fax: (506) 453-3275 Counsel for the Intervener, Attorney General of New Brunswick AND TO: GOWLING LAFLEUR HENDERSON LLP 2600-160 Elgin Street P.O. Box 466, Stn. “D” Ottawa, Ontario K1P 1C3 Henry S. Brown, Q.C. Tel: (613) 233-1781 Fax: (613) 563-9869 Agent for the Intervener, Attorney General of New Brunswick AND TO: ATTORNEY GENERAL OF SASKATCHEWAN Constitutional Law Branch 8th Floor – Scarth Street Regina, Saskatchewan S4P 3V7 Tel: (306) 787-8385 Fax: (306) 787-9111 AND TO: GOWLING LAFLEUR HENDERSON LLP 2600-160 Elgin Street P.O. Box 466, Stn. “D” Ottawa, Ontario K1P 1C3 Henry S. Brown, Q.C. Tel: (613) 233-1781 Fax: (613) 563-9869 Agent for the Intervener, Attorney General of Saskatchewan AND TO: AUGUSTIN ROY AND TO: BERGERON, GAUDREAU, LAPORTE 167, rue Notre Dame de l’Île Gatineau, Quebec J8X 3T3 Richard Gaudreau Tel: (819) 770-7928 Fax: (819) 770-1424 Agent for the Intervener, Augustin Roy AND TO: LERNERS LLP 2400 - 130 Adelaide Street West Toronto , Ontario M5H 3P5 Earl A. Cherniak, Q.C. Tel: (416) 867-3076 Fax: (416) 867-9192 Counsel for the Interveners, Senator Michael Kirby, Senator Marjory Lebreton, Senator Catherine Callbeck, Senator Joan Cook, Senator Jane Cordy, Senator Joyce Fairbairn, Senator Wilbert Keon, Senator Lucie Pépin, Senator Brenda Robertson and Senator Douglas Roche AND TO: GOWLING LAFLEUR HENDERSON LLP 2600-160 Elgin Street P.O. Box 466, Stn. “D” Ottawa, Ontario K1P 1C3 Brian A. Crane, Q.C. Tel: (613) 233-1781 Fax: (613) 563-9869 Agents for the Interveners, Senator Michael Kirby, Senator Marjory Lebreton, Senator Catherine Callbeck, Senator Joan Cook, Senator Jane Cordy, Senator Joyce Fairbairn, Senator Wilbert Keon, Senator Lucie Pépin, Senator Brenda Robertson and Senator Douglas Roche AND TO: SACK GOLDBLATT MITCHELL 20 Dundas Street West Suite 1130, P.O. Box 180 Toronto, Ontario M5G 2G8 Steven Shrybman Tel: (416) 977-6070 Fax: (416) 591-7333 Counsel for the Intervener, Canadian Labour Congress AND TO: BURKE-ROBERTSON Barristers and Solicitors 70 Gloucester Street Ottawa, Ontario K2P 0A2 Robert E. Houston, Q.C. Tel: (613) 236-9665 Fax: (613) 235-4430 Agent for the Intervener, Canadian Labour Congress AND TO: UNIVERSITY OF VICTORIA P.O. Box 2400, Station CSC Victoria , British Columbia V8W 3H7 Martha Jackman Tel: (250) 721-8181 Fax: (250) 721-8146 Counsel for the Interveners, Charter Committee on Poverty Issues and the Canadian Health Coalition AND TO: LANG MICHENER 300-50 O’Connor Street Ottawa , Ontario K1P 6L2 Marie-France Major Tel: (613) 232-7171 Fax: (613) 231-3196 Agent for the Interveners, Charter Committee on Poverty Issues and the Canadian Health Coalition AND TO: BLAKE, CASSELS & GRAYDON LLP Suite 2600, Three Bentall Centre 595 Burrard Street, P. O Box 49314 Vancouver, B. C. V7X 1L3 Marvin R.V. Storrow, Q.C. Tel: (604) 631-3300 Fax: (604) 631-3309 Counsel for the Interveners, Cambie Surgeries Corporation, False Creek Surgical Centre Inc., Delbrook Surgical Centre Inc., Okanagan Plastic Surgery Centre Inc., Specialty MRI Clinics Inc., Fraser Valley MRI Ltd., Image One MRI Clinic Inc., McCallum Surgical Centre Limited and 4111044 Canada Inc., South Fraser Surgical Centre Inc., Victoria Surgery Ltd., Kamloops Surgery Centre Ltd., Valley Cosmetic Surgery Associates Inc., Surgical Centres Inc., the British Columbia Orthopaedic Association and the British Columbia Anesthesiologists Society AND TO: BLAKE, CASSELS & GRAYDON LLP World Exchange Plaza 20th Floor, 45 O’Connor Ottawa, Ontario K1P1A4 Gordon K. Cameron Tel: (613) 788-2222 Fax: (613) 7882247 Agent for the Interveners, Cambie Surgeries Corporation, False Creek Surgical Centre Inc., Delbrook Surgical Centre Inc., Okanagan Plastic Surgery Centre Inc., Specialty MRI Clinics Inc., Fraser Valley MRI Ltd., Image One MRI Clinic Inc., McCallum Surgical Centre Limited and 4111044 Canada Inc., South Fraser Surgical Centre Inc., Victoria Surgery Ltd., Kamloops Surgery Centre Ltd., Valley Cosmetic Surgery Associates Inc., Surgical Centres Inc., the British Columbia Orthopaedic Association and the British Columbia Anesthesiologists Society TABLE OF CONTENTS PART I: FACTS 1 1. Overview 1 2. CMA/COA’s Interest in the Appeal 2 3. CMA/COA’s Position on the Facts 3 PART II: QUESTIONS IN ISSUE 8 PART III: ARGUMENT 8 1. Breach of Section 7 of the Charter 8 (a) Right to Life and Security of the Person 9 (i) Infringement of Life and Security of the Person 9 (ii) Real Apprehension of Charter Section 7 Violation 10 (b) Principles of Fundamental Justice 11 (c) Not an Economic Right 15 2. Not Saved Under Charter Section 1 17 PART IV: SUBMISSIONS CONCERNING COSTS 18 PART V: ORDER SOUGHT 19 PART VI: TABLE OF AUTHORITIES 20 PART VII: STATUTES AND REGULATIONS 22 PART I: FACTS 1. Overview 1. The Canadian Medical Association (“CMA”) and the Canadian Orthopaedic Association (“COA”) support the existing single payer (publicly funded) model of health care delivery, but are concerned that delays in access to medically necessary health care may put the life and health of patients in Canada at risk. The CMA/COA submit that governments must address the issue of timeliness of access to health care if they wish to maintain the viability and constitutionality of the social contract that is Medicare. 2. The CMA/COA put forward a position that they believe best protects the public health care system, while at the same time recognizing that failures in that system which threaten the life, liberty and security of the person of patients in Canada may constitute a Charter section 7 breach. The CMA/COA submit that so long as access to medically necessary care is provided in a timely manner, there is no Charter section 7 breach. In the absence of a clear commitment to timely access and where as a matter of fact the public system fails to provide timely access to medically necessary health care, legislative prohibitions that impede access or the means for access to medical treatment necessary to the life, liberty and security of the person do breach Charter section 7. 3. The fundamental issue in this case is whether it is constitutionally justifiable for governments to legislatively preclude a patient from seeking access or the means for access to medical treatment necessary to the life, liberty and security of the person, when such treatment is not available in a timely manner in the public system by reason of significant waiting times, under-funding, inadequate human and physical resources, or other impediments. 4. The purpose and effect of the matrix of federal and provincial statutes applicable to Medicare is to establish the public health care system as the sole payer of medically necessary (“insured”) services. In Québec, for example, the government defines what constitute medically necessary services, pays for all insured service provided to residents of Québec, sets out the conditions under which the insured services may be funded outside the province, and otherwise forbids by law the provision of private insurance for such insured services. While the Québec government has legislated to provide medically necessary care, the legislation does not extend to the provision of timely access to medically necessary care. It is this disjunction which has caused the CMA/COA to intervene in this case. Governments are not held accountable for the failure to provide medically necessary services in a timely manner in the public system. 5. This is not a case of economic rights because in the context of health care any clinically excessive delay can have profound consequences on both the physical and psychological aspects of a person’s life and security of the person. The CMA/COA, as physicians, submit that it is the impact of the deterioration of the public health care system to the point that it cannot deliver timely access to Canadians that is the heart of the issue. In this context, “timely access” refers to the delivery of care within a medically appropriate timeframe. Medically necessary health care delayed is health care denied. 2. CMA/COA’s Interest in the Appeal 6. The CMA is the national voice of Canadian physicians, with over 57,000 members in each of the ten provinces and the three territories. Its mission is to serve and unite the physicians of Canada, and to be the national advocate, in partnership with the people of Canada, for the highest standards of health and health care. An affiliate of the CMA, the COA is a voluntary medical speciality society of physicians with specialized training and certification in orthopaedic surgery. The COA’s goals are to achieve excellence in orthopaedic care for Canadians, in part through ensuring that adequate and accessible health care resources are available for Canadians. 7. The CMA/COA are committed to the fundamental principles of the national system of Medicare – comprehensiveness, universality of coverage, portability of benefits, reasonable access and non-profit administration. Furthermore, the CMA Code of Ethics, article 31, states that physicians should “recognize the responsibility of physicians to promote fair access to health care resources”. However, excessive waiting times in the public system threaten the viability of Medicare unless and until governments clearly commit to and factually do provide timely access. The decision of this Court will have a profound and lasting effect on the Canadian health care system, of which physicians are an integral part. It will directly affect the conditions under which patients receive treatment from physicians and other providers. Canadian Medical Association, Code of Ethics of the Canadian Medical Association, (Ottawa: The Association), October 1996, CMA/COA Authorities, Tab 17 3. CMA/COA’s Position on the Facts 8. Madam Justice Piché found at trial that if access to the health system is not possible, it is illusory to think that rights to life and security are respected. She further found that the prohibition on the purchase of private insurance is an infringement of life and security of the person where there are excessive waiting times for essential medical services in the public system. The trial judge found that waiting lists are too long and that, even if the question is not always one of life or death, all individuals are entitled to receive the care they need in a clinically responsive manner. She held, however, that the infringement did not violate fundamental justice given the historical context and the social benefits to all of a publicly funded health care system. Judgment of Piché J., Joint Appellants’ Record, Vol. I, pp. 126-127, 129, 134-135, 143 9. More recently, the serious issue of waiting times for medically necessary health care has been considered by two major national studies – the Canadian Commission on the Future of Health Care in Canada (the “Romanow Commission”) and the Report of the Standing Senate Committee on Social Affairs, Science and Technology (“the Senate Committee”). Each of these significant reports concluded that excessive waiting times exist across the country, that governments have available a number of tools to address such waiting times which are not being used to their fullest extent, and that delays in access to medically necessary services may cause the health of patients to deteriorate, as well as stress and anxiety. Canada, Commission on the Future of Health Care in Canada, Building on Values: The Future of Health Care in Canada – Final Report, (Ottawa, 2002) (Chair: Roy Romanow) at 137-150 [hereinafter Romanow, Building on Values], CMA/COA Authorities, Tab 15 Canada, The Standing Senate Committee on Social Affairs, Science and Technology, The Health of Canadians – The Federal Role: Final Report on the State of the Health Care System in Canada, Vol. 6 (Ottawa: 2002) (Chair: Michael Kirby) at 99-121 [hereinafter Kirby, The Health of Canadians, Vol. 6], CMA/COA Authorities, Tab 16 10. The CMA/COA recognize that wait times for diagnosis and treatment are intrinsic to a health care system. No country has sufficient resources at its disposal to build the excess capacity necessary to meet all health needs on an urgent basis. However, excessive wait times emerged as a major public policy issue starting in the mid- to late-1990s following several years of cuts in the financing of public health care. Moreover, public anxiety has been mounting over lengthening wait times for treatment. Public confidence in the system “being there” at the time and to the extent of need is gradually being lost. Kirby, The Health of Canadians, Vol. 6, supra at 109-111, CMA/COA Authorities, Tab 16 11. The Senate Committee cited with approval a recent Statistics Canada study, entitled Access to Health Care Services in Canada, 2001, that provides an indication of the extent to which Canadians are subject to waiting times and the associated stress and anxiety: * Almost one in five Canadians who access health care for themselves or a family member in 2001 encountered some form of difficulty, ranging from problems getting an appointment to lengthy waiting times. * Of the estimated five million people who visited a specialist, roughly 18 %, or 900,000, reported that waiting for care affected their lives. The majority of these people (59 per cent) reported worry, anxiety or stress. About 37 % said they experienced pain. * Canadians reported that waiting for services was clearly a barrier to care. Long waits were clearly not acceptable to Canadians, particularly when they experienced adverse effects such as worry and anxiety or pain while waiting for care. Statistics Canada, Access to Health Care Services in Canada, 2001 by C. Sanmartin, C. Houle, J.-M. Berthelot and K. White, (Ottawa, Minister of Industry, 2002) [hereinafter Statistics Canada, Access to Health Care], cited in Kirby, The Health of Canadians, Vol. 6, supra at 109, CMA/COA Authorities, Tab 21 12. The Statistics Canada report concluded that: Perhaps the most significant information regarding access to care was about waiting times. … Long waits were clearly not acceptable to Canadians, particularly when they experienced adverse affects such as worry and anxiety or pain while waiting for care. Statistics Canada, Access to Health Care, supra at 21, cited in Kirby, The Health of Canadians, Vol. 6, supra at 109, CMA/COA Authorities, Tab 21 13. Furthermore, the Romanow Report acknowledged the problem that Canadian patients and their physicians are faced with: Waiting for health care is a serious concern for Canadians and it has become a preoccupation for health care professionals, managers, and governments. Studies and public opinion polls have consistently shown that one of the top concerns of rural and urban Canadians is health care access… Long waiting times are the main, and in many cases, the only reason some Canadians say they would be willing to pay for treatment outside of the public health care system… As individual provinces and territories have struggled to deal with waiting times and wait lists within their own systems, progress is being made in some areas but more effort needs to be put into generalizing those efforts across the country… Clearly, the progress is not fast enough for Canadians. More can and must be done across the country to give Canadians what they want and deserve - timely access to health care services they need. Romanow, Building on Values, supra at 138-139, CMA/COA Authorities, Tab 15 14. Following its review of the Canadian health care system, the Senate Committee concluded on the issue of waiting time that: In Canada, patient prioritization is not standardized for any medical service (with the exception of [the Cardiac Care Network] in Ontario). This means that there is currently no provincially or nationally accepted method of measuring or defining waiting times for medical services, nor are there standards and criteria for “acceptable” waits for the vast majority of health services. It is impossible, therefore, to determine whether, from a clinical point of view, patients have waited a reasonable or unreasonable length of time to access care. The absence of standardized criteria and methods to prioritize patients waiting for care means that patients are placed and prioritized on waiting lists based on a range of clinical and non-clinical criteria that vary by individual referring physician across institutions, regional health authorities, and provinces. Kirby, The Health of Canadians, Vol. 6, supra at 112, CMA/COA Authorities, Tab 16 15. The Romanow Commission concluded on the issue of current problems with wait lists: One of the most serious concerns is not only the length of time some people wait but the way in which wait lists are managed. In fact, to say wait lists are “managed” is almost a misnomer. There is no consistent way of dealing with wait lists in particular regions let alone on a provincial or national basis. This affects the health of people who wait and it seriously undermines Canadians’ confidence in their health care system. When individual Canadians are told that they are on a wait list for a particular service, they probably assume that there is a master list that is managed and co-ordinated based on the urgency of their need. In reality, that is not what happens. Romanow, Building on Values, supra at 141-143, CMA/COA Authorities, Tab 15 16. Recent international surveys also indicate that the waiting times and access to care for patients who make heavy use of the health care system are markedly poorer in Canada than in four other Western countries. R.J. Blendon et al., “Common concerns Amid Diverse Systems: Health Care Experiences in Five Countries” (2003), 22 Health Affairs 106, CMA/COA Authorities, Tab 14 17. On the international scene, since at least the early 1990’s, mechanisms to address excessive wait times including access standards and care guarantees have been the subject of study, debate and practice in several jurisdictions including the United Kingdom, Sweden and New Zealand. The Organisation for Economic Co-operation and Development (OECD) commissioned a comprehensive study of the international experience with access standards and care guarantees. OECD, Labour and Social Affairs Committee, Tackling Excessive Waiting Times for Elective Surgery: A Comparison of Policies in Twelve OECD Countries, Doc. No. DELSA/ELSA/WD/HEA(2003)6 (2003), CMA/COA Authorities, Tab 19 OECD, Labour and Social Affairs Committee, Explaining Waiting Times Variations for Elective Surgery Across OECD Countries, Working Paper No. 7, Doc. No. DELSA/ELSA/WD/HEA(2003)7 (2003), CMA/COA Authorities, Tab 18 18. While the federal government has never taken the position that timeliness is a component of accessibility, such a position is certainly open to it. The Canada Health Act has established five criteria pursuant to which the federal government will cost-share provincial Medicare programs: portability, comprehensiveness, universality, public administration, and accessibility. “Accessibility” has been interpreted to require that there be no financial barriers to accessing hospital and physician services. Canada Health Act, R.S.C. 1985, c. C-6, s. 7, 12 19. The CMA proposed to the Senate Committee that guidelines and standards around quality and waiting times be established for a clearly defined basket of core services, and argued that “if the publicly funded health care system fails to meet the specified agreed-upon standards for timely access to core services, then patients must have other options to allow them to obtain this required care through other means.” Kirby, The Health of Canadians, Vol. 6, supra at 119, CMA/COA Authorities, Tab 16 20. There are concrete Canadian examples of how timely access may be measured and provided such as the Cardiac Care Network of Ontario, and the Western Canada Waiting List Project, both of which are reviewed in the Senate Committee Report. These projects have demonstrated that a substantial improvement in the waiting list problem is possible through adopting an approach based on the clinical needs of patients on waiting lists. The Senate Committee suggested: * A process to establish standard definitions for waiting times should be national in scope, and * Standard definitions should focus on four key waiting periods – waiting for primary care consultation; for initial specialist consultation; for diagnostic tests; and for surgery. Kirby, The Health of Canadians, Vol. 6, supra at 103-113, CMA/COA Authorities, Tab 16 Romanow, Building on Values, supra at 143-144, CMA/COA Authorities, Tab 15 PART II: QUESTIONS IN ISSUE 21. The CMA/COA take a position on the following constitutional questions as stated by this Court in its Order of August 15, 2003: (1) Does s. 11 of the Hospital Insurance Act, R.S.Q., c. A-28, infringe the rights guaranteed by s. 7 of the Canadian Charter of Rights and Freedoms? (2) If so, is the infringement a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society under s. 1 of the Canadian Charter of Rights and Freedoms? (3) Does s. 15 of the Health Insurance Act, R.S.Q., c. A-29, infringe the rights guaranteed by s. 7 of the Canadian Charter of Rights and Freedoms? (4) If so, is the infringement a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society under s. 1 of the Canadian Charter of Rights and Freedoms? 22. The CMA/COA submit that if there is a clear commitment from governments which provides timely access to medically necessary care, there is no constitutional breach. However, constitutional questions #1 and 3, should be answered affirmatively if a patient is denied timely access to health care in the public system with the result that the patient’s life is threatened or the quality of his/her life substantially compromised, and that patient is legislatively precluded from seeking access or the means for access to medically necessary treatment. In this event, the corresponding questions #2 and 4 should be answered negatively. PART III: ARGUMENT 1. Breach of Section 7 of the Charter 23. The analytical approach to be used under section 7 of the Charter has recently been described by this Honourable Court as a three-step process: 1) the identification of the individual interests said to be infringed and a determination of whether those interests fall within the meaning of the phrase “life, liberty and security of the person;” 2) the identification of the principles of fundamental justice engaged in the circumstances of the case; and, 3) whether the threshold infringement found in the first stage of the analysis is inconsistent with the pertinent principle of fundamental justice. R v. Malmo-Levine; R. v. Caine, 2003 SCC 74 at para. 83 [hereinafter Malmo-Levine], CMA/COA Authorities, Tab 10 (a) Right to Life and Security of the Person 24. The CMA/COA submit that when a patient is denied timely access to health care in the publicly funded system with the result that the patient’s life is threatened or the quality of her life substantially compromised, and that patient is legislatively precluded from seeking access or the means for access to medically necessary treatment, the infringement of the rights to life and/or security of the person is clear. However, where the health care service at issue is not essential to maintaining quality and quantity of life, and the delay in accessing that treatment is not clinically significant, then the values and principles reflected in Charter section 7 are not engaged. 25. “Timely access” to health care refers to the delivery of care within a medically appropriate time frame. As discussed in paragraph 20, there are existing Canadian and international initiatives to develop and refine medically appropriate time frames. (i) Infringement of Life and Security of the Person 26. In the context of health care, any clinically excessive delay can have profound consequences on both the physical and psychological aspects of a patient’s life and security of the person. OECD, Labour and Social Affairs Committee, Tackling Excessive Waiting Times for Elective Surgery: A Comparison of Policies in Twelve OECD Countries Annex 1, Doc. No. DELSA/ELSA/WD/HEA(2003)6/ANN1 (2003), CMA/COA Authorities, Tab 20 27. The CMA/COA submit that delay in the medical context, when caused by government laws and policies, may clearly threaten an individual’s life and security of the person. The significance of government-caused delay in the criminal context was recognized in R. v. Morgentaler. Chief Justice Dickson, as he then was, in R. v. Morgentaler found that the increased risk to a woman’s health resulting from the delay caused by the government procedures in obtaining an abortion deprived her of her security of the person. Justice Beetz recognized the additional danger to a woman’s health caused by the state’s intervention which prevented “access to effective and timely medical treatment.” R. v. Morgentaler, [1988] 1 S.C.R. 30 at 59, 101 [hereinafter Morgentaler], CMA/COA Authorities, Tab 11 28. The infringement of a person’s security is not restricted to the physical aspect. State interference with bodily integrity and serious state-imposed psychological stress also constitute a breach of security of the person. There must be an objective assessment of state interference “on the psychological integrity of a person of reasonable sensibility.” It requires more than ordinary stress and anxiety, but does not need to escalate to the level of nervous shock or psychiatric illness. New Brunswick (Minister of Health and Community Services) v. G.(J.), [1999] 3 S.C.R. 46 at para. 60 [hereinafter New Brunswick], CMA/COA Authorities, Tab 7 Morgentaler, supra at 60, CMA/COA Authorities, Tab 11 29. The failure to obtain timely health care may have a serious and profound effect on an individual well beyond the normal stress and anxiety of life. Where there is an increased risk to both physical and mental health resulting from excessive delay in obtaining medically necessary health care, a deprivation of security of the person and significant diminution in the quality and quantity of life will ensue. (ii) Real Apprehension of Charter Section 7 Violation 30. The evidence before the trial judge supports a finding that there is a real apprehension of a violation of Charter section 7 rights. At trial, Piché J. heard evidence from more than fifteen witnesses, including both expert physicians and professors, as well as patients who have been intimately involved with the public health care system. A large quantity of evidence was presented on the delays in access to health care, and its consequences in such fields as orthopaedics, ophthalmology, oncology, cardiology and emergency care. She concluded: De ces témoignages, le Tribunal retient d’abord la sincérité et l’honnêteté des médecins qui ont témoigné, de leur désir de changer les choses, de leur impuissance malheureuse devant des listes d’attente trop longues. Le Tribunal retient que les listes d’attente sont trop longues, que même si ce n’est pas toujours une question de vie ou de mort, tous les citoyens ont droit à recevoir les soins dont ils ont besoin, et ce, dans les meilleurs délais. Judgment of Piché J., Joint Appellants’ Record, Vol. I, pp. 42, 43 31. The CMA/COA submit that deference must be paid to the findings of fact of the trial judge. In the alternative, the CMA/COA submit that this Court has before it all the necessary evidentiary support in order to make the determination on reasonable hypothetical circumstances. The protection under the Charter embodies a preventative aspect when a violation is apprehended, as observed by the trial judge. As Justice Forget at the Court of Appeal held: Obliger une personne à attendre d’être gravement malade (ou d’avoir subi un grave accident) avant d’entreprendre des procédures pour obtenir des soins adéquats de santé aurait pour effet, dans la majorité des cas, de rendre illusoire le recours, compte tenu de l’imprévisibilité de la maladie et de son évolution. Judgment of Court of Appeal, Forget J., Joint Appellants’ Record, Vol. I, p. 187 New Brunswick, supra at paras. 56-68 and 91, CMA/COA Authorities, Tab 7 32. The CMA/COA submit that this Honourable Court should not be waiting for, in the words of the trial judge, “une question de vie ou de mort” before acting. Cases such as Stein v. Québec (Régie de l’Assurance-maladie) demonstrate that timely access to necessary medical care is a real concern. Failures of timely access pose a significant risk to s. 7 rights. Stein v. Québec (Régie de l’Assurance-maladie), [1999] Q.J. No. 2724 (S.C.), CMA/COA Authorities, Tab 13 (b) Principles of Fundamental Justice 33. The section 7 analysis then turns to the principles of fundamental justice which are found in “the basic tenets of our legal system.” The objective of the Health Insurance Act is to regulate the single payer (publicly funded) Medicare system in Québec. The CMA/COA are committed to a sustainable health care system which provides for timely and fair access to medically necessary care. All aspects of health care are intrinsically linked to time – prevention, diagnosis, treatment, and follow up – yet there is no commitment from governments to timeliness as a core aspect of the provision of health care. As a result, the CMA/COA submit the legislation violates principles of fundamental justice due to arbitrariness and irrationality. Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486 at 512, CMA/COA Authorities, Tab 8 34. This Honourable Court has identified the three criteria that must be fulfilled in order to establish a principle of fundamental justice: First, it must be a legal principle. This serves two purposes. First, it "provides meaningful content for the s. 7 guarantee"; second, it avoids the "adjudication of policy matters": Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, at p. 503. Second, there must be sufficient consensus that the alleged principle is "vital or fundamental to our societal notion of justice": Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519, at p. 590. The principles of fundamental justice are the shared assumptions upon which our system of justice is grounded. They find their meaning in the cases and traditions that have long detailed the basic norms for how the state deals with its citizens. Society views them as essential to the administration of justice. Third, the alleged principle must be capable of being identified with precision and applied to situations in a manner that yields predictable results. Examples of principles of fundamental justice that meet all three requirements include the need for a guilty mind and for reasonably clear laws. Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), 2004 SCC 4 at para. 8, CMA/COA Authorities, Tab 3 35. The CMA/COA respectfully submit that the trial judge erred in this case in balancing the harms to individuals with the greater good to society of Medicare, under the rubric of Charter section 7 rather than under Charter section 1. As this Court has recently held: The balancing of individual and societal interests within s. 7 is only relevant when elucidating a particular principle of fundamental justice… Once the principle of fundamental justice has been elucidated, however, it is not within the ambit of s. 7 to bring into account such “societal interests” as health care costs. Malmo-Levine, supra at para. 98, CMA/COA Authorities, Tab 10 36. This Honourable Court recently reiterated that the state has an interest in avoiding harm to those subject to its laws which may justify parliamentary action: In other words, avoidance of harm is a “state interest” within the rule against arbitrary or irrational state conduct mentioned in Rodriguez, at p. 594, previously cited, that Where the deprivation of the right in question does little or nothing to enhance the state’s interest (whatever it may be), it seems to me that a breach of fundamental justice will be made out, as the individuals’ rights will have been deprived for no valid purpose. Malmo-Levine, supra at para. 131, CMA/COA Authorities, Tab 10 37. The state has a particular interest in acting to protect vulnerable persons. All patients, including those waiting to receive medical care, are vulnerable to the exercise of state power which limits access to health care. The CMA/COA submit that in the context of the single payer (publicly funded) model of health care delivery where access to alternate means for such care is prohibited by the state, patients are a vulnerable group. It is an arbitrary and irrational use of state power for the Québec Legislature, in section 15 of the Health Insurance Act, to prohibit alternative meaning of access to health care services without assuming a concomitant state obligation to guarantee timely access to necessary medical care, where the failure to afford timely access may lessen the quality and quantity of life. Health Insurance Act, R.S.Q., c. A-29, s. 15 New Brunswick, supra at para. 70, CMA/COA Authorities, Tab 7 B. (R.) v. Children’s Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315 at para. 88, CMA/COA Authorities, Tab 1 Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519 at 595, CMA/COA Authorities, Tab 12 38. The CMA/COA submit that it is open to this Court to read the concept of timeliness into the existing legislative provisions so as to render them constitutionally compliant. However, in the context of health care, a commitment to timeliness must be demonstrated in fact. The evidence before the trial judge and the findings of the Romanow Commission and the Senate Committee clearly indicate that access to medically necessary health care is not always provided in a timely manner. 39. In the absence of a commitment which provides timely access to publicly funded care, it is irrational for the state to prohibit access or the means of access to other forms of medically necessary care. The CMA/COA do not argue that governments must fund all medical services, but rather that having chosen to provide insured medical services under a single payer (publicly funded) model and prohibiting private insurance for these services, the government must provide the insured services in a timely manner. Failure to do so would be irrational, as it would constitute state action harming vulnerable persons. Hitzig v. Canada, [2003] O.J. No. 3873 (C.A.) at paras. 113-121, CMA/COA Authorities, Tab 6 40. Timeliness as a concept integral to many aspects of fundamental justice has been recognized by the common law and equity, through such concepts as laches, or the timeliness of trial rights. In particular, timeliness in the provision of medically necessary health care is essential to preserving human dignity, security of the person and promotion of human health. Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307 at paras. 121-133, CMA/COA Authorities, Tab 2 R. v. Askov, [1990] 2 S.C.R. 1199 at 1219-1223, CMA/COA Authorities, Tab 9 41. This is not just a failure of the Québec provincial legislature: it is an issue which involves the constitutional obligations of the federal government as well. As discussed above, one of the five criteria established by the federal government for cost-sharing of provincial Medicare is the principle of “accessibility”. The federal government, however, has not acknowledged timeliness as an aspect of accessibility. 42. Recognizing timeliness as intrinsic to accessibility and the requirements of fundamental justice is consistent with the constitutional commitments made by both the federal and provincial governments in section 36(1) of the Constitution Act, 1982, which provides: 36(1) Without altering the legislative authority of Parliament or of the provincial legislatures, or the rights of any of them with respect to the exercise of their legislative authority, Parliament and the legislatures, together with the government of Canada and the provincial governments, are committed to: (a) promoting equal opportunities for the well-being of Canadians; …; and (c) providing essential public services of reasonable quality to all Canadians. Constitution Act, 1982, s. 36(1), being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 [hereinafter Constitution Act, 1982] 43. Section 36(1) of the Constitution Act, 1982 establishes a constitutional commitment to promoting opportunities for well-being, and providing essential public services of reasonable quality. However, where governments fail to provide access to necessary medical care in a timely fashion in the public system, it is irrational to use the legislative power of prohibition to forbid viable alternatives. This irrationality contravenes principles of fundamental justice. Where Medicare contains no method of measuring or achieving timely access, the promise that governments will provide medically necessary treatment becomes illusory. Constitution Act, 1982, s. 36(1), supra 44. In the alternative, if this Honourable Court were to conclude that the prohibition is in accordance with the principles of fundamental justice because it promotes legitimate social interests, the CMA would respectfully submit that this conclusion should not be a “frozen” one. Any decision should not enshrine the status quo of excessive wait times as a perpetually viable constitutional state of affairs. This Court could establish threshold criteria for the life and health of Canadian citizens, below which the larger public good cannot be used to justify violations of individual rights. Recent studies such as the Romanow Commission and the Senate Committee found that the waiting time issue is dynamic, evolving and not static. (c) Not an Economic Right 45. Some of the respondents and interveners argue that the issue is one of economic rights – the purchase of insurance – which is not protected by the Charter. The CMA/COA submit that in the realm of access to health care, insurance can be a tool to secure that which is Charter protected – timely access to medically necessary health care. The economic aspect is incidental to securing the right. 46. The CMA/COA take the position that any economic and contract aspects are merely incidental to the real issue of the s. 7 right to life, liberty and security of the person. The trial judge concluded that economic barriers in the impugned legislation are ancillary to the principle of access to health care: Le Tribunal estime que les barrières économiques établies par les articles 15 LAM et 11 LAH sont intimement liées à la possibilité d’accès à des soins de santé. Sans ces droits, compte tenu des coûts impliqués, l’accès aux soins privés est illusoire. Dans ce sens, ces dispositions sont une entrave à l’accès à des services de santé et sont donc susceptibles de porter atteinte à la vie, à la liberté et à la sécurité de la personne. Judgment of Piché J., Joint Appellants’ Record, Vol. I, pp. 126-127 47. The CMA/COA submit that the trial judge was correct in concluding that excessive delay in the provision of necessary medical care violates the right to life, liberty and security of the person. Any economic rights to contract are incidental. This case is about patients in Canada having the right to quality health care in a timely manner. Judgment of Piché J., Joint Appellants’ Record, Vol. I, pp. 125-127, 133-134 48. To deny Canadians the right to timely access to health care on such conjectural grounds as the secondary aspect of this case, which touches economic or contractual aspects, would denude section 7 of its promise to life, liberty and security of the person. A legislative prohibition on the purchase of insurance when timely access is not provided is not the denial of an economic right, but the denial of a fundamental right to life, liberty and security. Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624 at paras. 91-93 [hereinafter Eldridge], CMA/COA Authorities, Tab 4 2. Not Saved Under Charter Section 1 49. It is clear that once an infringement of section 7 is established, the onus moves to the Government to justify the infringement under s. 1 pursuant to the Oakes test. The framework under section 1 was first established in R v. Oakes : A limitation to a constitutional guarantee will be sustained once two conditions are met. First. the objective of the legislation must be pressing and substantial. Second, the means chosen to attain this legislative end must be reasonable and demonstrably justifiable in a free and democratic society. In order to satisfy the second requirement, three criteria must be satisfied: (1) the rights violation must be rationally connected to the aim of the legislation; (2) the impugned provision must minimally impair the Charter guarantee; and (3) there must be proportionality between the effect of the measure and its objective so that the attainment of the legislative goal is not outweighed by the abridgement of the right. New Brunswick, supra at para. 95 citing Egan v. Canada, [1995] 2 S.C.R. 513 at para. 182, CMA/COA Authorities, Tab 7 50. It has long been established that the rights protected under section 7 are of significant importance and cannot ordinarily be overridden by competing social interests. In addition, “rarely will a violation of the principles of fundamental justice…be upheld as a reasonable limit demonstrably justified in a free and democratic society”. Godbout v. Longueuil (City), [1997] 3 S.C.R. 844 at para. 91, CMA/COA Authorities, Tab 5 New Brunswick, supra at para. 99 citing Re B.C. Motor Vehicle, supra at 518, CMA/COA Authorities, Tab 7 51. The values in issue here are similar to those considered by this Honourable Court in Eldridge, where La Forest J. for the Court held: Given the central place of good health in the quality of life of all persons in our society, the provisions of substandard medical services to the deaf necessarily diminishes the overall quality of their lives. The government has simply not demonstrated that this unpropitious state of affairs must be tolerated in order to achieve the objective of limiting health care expenditures. Stated differently, the government has not made a “reasonable accommodation” of the appellants’ disability. Eldridge, supra at para. 94, CMA/COA Authorities, Tab 4 52. The Romanow Commission has advocated central management of waiting lists, with common indicators, benchmarks and public accounting. The Senate Committee has recommended care guarantees. These are strong indications that solutions exist in a public health care system that will extend a commitment to timely access to medically necessary health care. Kirby, The Health of Canadians, Vol. 6, supra at 103-113, CMA/COA Authorities, Tab 16 Romanow, Building on Values, supra at 143-144, CMA/COA Authorities, Tab 15 53. The CMA/COA submit that if this Court holds that the legislation contravenes the Charter, governments have open to them a full range of options that could be implemented to address excessive waiting times for care. These include government commitments to assurances of timeliness as an essential element of the provision of medically necessary care where wait times are excessive, adopting timeliness as an element of “accessibility” under the Canada Health Act, and committing to clinically responsive access standards as envisioned by the Senate Committee. Other measures such as streamlining and improving the portability of out-of-province provisions in provincial Medicare statutes may also be considered by governments. In the absence of such assurances, however, a system which precludes alternative means to obtain medically necessary health care is unconstitutional where wait times are excessive. 54. Accordingly, it is submitted that a violation of Charter section 7 could be justified pursuant to section 1 if and only if the government were able to prove, on a balance of probabilities based on reliable and credible evidence rather than conjecture, that no alternative exists that could be implemented to ensure timeliness while at the same time maintaining the viability of the public single-payer. PART IV: SUBMISSIONS CONCERNING COSTS 55. The CMA/COA seeks no costs and asks that none be awarded against it. PART V: ORDER SOUGHT 56. The CMA/COA submit that when a person’s life is threatened or the quality of his or her life is substantially compromised and that person is prohibited from obtaining the medically necessary treatment through other means, even though the publicly funded system is unable to provide the necessary care, then constitutional questions # 1 and 3 should be answered affirmatively and the corresponding questions # 2 and 4 should be answered in the negative. Any declaration of unconstitutionality should, however, be delayed by three years, or such other period of time as this Court shall determine, so that the government may during this period institute the systemic commitment to timely access to medically necessary care and ensure simultaneously that individual patients receive care in as timely a manner as possible. 57. The CMA/COA seek leave of this Court, pursuant to rule 59(2), to present oral argument at the hearing of this appeal. Rules of the Supreme Court of Canada, SOR/2002-156, as amended, Rule 59(2) ALL OF WHICH IS RESPECTFULLY SUBMITTED December 12, 2005 Guy Pratte Freya Kristjanson ::ODMA\PCDOCS\LG-OTT-2\350103\1 PART VI: TABLE OF AUTHORITIES Cases Paragraph Nos. B. (R.) v. Children’s Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315………………..37 Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307……………….40 Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), 2004 SCC 4……………………………………………………………………………34 Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624…………………….48, 51 Godbout v. Longueuil (City), [1997] 3 S.C.R. 844………………………………………………50 Hitzig v. Canada, [2003] O.J. No. 3873 (C.A.)………………………………………………….39 New Brunswick (Minister of Health and Community Services) v. G.(J.), [1999] 3 S.C.R. 46……………………………………………………………….28, 31, 37, 49, 50 Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486………………………………………………...33 R. v. Askov, [1990] 2 S.C.R. 1199………………………………………………………………..40 R v. Malmo-Levine; R. v. Caine, 2003 SCC 74………………………………………….23, 35, 36 R. v. Morgentaler, [1988] 1 S.C.R. 30……………………………………………………….27, 28 Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519……………………….37 Stein v. Québec (Régie de l’Assurance-maladie), [1999] Q.J. No. 2724 (S.C.)…………………32 Secondary Sources Paragraph Nos. R.J. Blendon et al., “Common concerns Amid Diverse Systems: Health Care Experiences in Five Countries” (2003), 22 Health Affairs 106………………………………….16 Canada, Commission on the Future of Health Care in Canada, Building on Values: The Future of Health Care in Canada – Final Report, (Ottawa, 2002) (Chair: Roy Romanow)……………………………………………………9, 13, 15, 20, 52 Canada, The Standing Senate Committee on Social Affairs, Science and Technology, The Health of Canadians – The Federal Role: Final Report on the State of the Health Care System in Canada, Vol. 6 (Ottawa: 2002) (Chair: Michael Kirby)……………………………………………………….9, 10, 14, 19, 20, 52 Canadian Medical Association, Code of Ethics of the Canadian Medical Association, (Ottawa: The Association), October 1996…………………………………………..7 OECD, Labour and Social Affairs Committee, Explaining Waiting Times Variations for Elective Surgery Across OECD Countries, Working Paper No. 7, Doc. No. DELSA/ELSA/WD/HEA(2003)7 (2003)……………………………………………...17 OECD, Labour and Social Affairs Committee, Tackling Excessive Waiting Times for Elective Surgery: A Comparison of Policies in Twelve OECD Countries, Doc. No. DELSA/ELSA/WD/HEA(2003)6 (2003)………………………………….17 OECD, Labour and Social Affairs Committee, Tackling Excessive Waiting Times for Elective Surgery: A Comparison of Policies in Twelve OECD Countries Annex 1, Doc. No. DELSA/ELSA/WD/HEA(2003)6/ANN1 (2003)………………...26 Statistics Canada, Access to Health Care Services in Canada, 2001 by C. Sanmartin, C. Houle, J.-M. Berthelot and K. White, (Ottawa, Minister of Industry, 2002)……………………………………………………………………………….11, 12 PART VII: STATUTES AND REGULATIONS Loi canadienne sur la santé, L.R.C. 1985 c. C-6 Canada Health Act, R.S.C. 1985, c. C-6 7. Le versement à une province, pour un exercice, de la pleine contribution pécuniaire visée à l'article 5 est assujetti à l'obligation pour le régime d'assurance-santé de satisfaire, pendant tout cet exercice, aux conditions d'octroi énumérées aux articles 8 à 12 quant à : a) la gestion publique; b) l'intégralité; c) l'universalité; d) la transférabilité; e) l'accessibilité. 12. (1) La condition d'accessibilité suppose que le régime provincial d'assurance-santé : a) offre les services de santé assurés selon des modalités uniformes et ne fasse pas obstacle, directement ou indirectement, et notamment par facturation aux assurés, à un accès satisfaisant par eux à ces services; b) prévoie la prise en charge des services de santé assurés selon un tarif ou autre mode de paiement autorisé par la loi de la province; c) prévoie une rémunération raisonnable de tous les services de santé assurés fournis par les médecins ou les dentistes; d) prévoie le versement de montants aux hôpitaux, y compris les hôpitaux que possède ou gère le Canada, à l'égard du coût des services de santé assurés. (2) Pour toute province où la surfacturation n'est pas permise, il est réputé être satisfait à l'alinéa (1)c) si la province a choisi de conclure un accord et a effectivement conclu un accord avec ses médecins et dentistes prévoyant : a) la tenue de négociations sur la rémunération des services de santé assurés entre la province et les organisations provinciales représentant les médecins ou dentistes qui exercent dans la province; b) le règlement des différends concernant la rémunération par, au choix des organisations provinciales compétentes visées à l'alinéa a), soit la conciliation soit l'arbitrage obligatoire par un groupe représentant également les organisations provinciales et la province et ayant un président indépendant; c) l'impossibilité de modifier la décision du groupe visé à l'alinéa b), sauf par une loi de la province. 7. In order that a province may qualify for a full cash contribution referred to in section 5 for a fiscal year, the health care insurance plan of the province must, throughout the fiscal year, satisfy the criteria described in sections 8 to 12 respecting the following matters: (a) public administration; (b) comprehensiveness; (c) universality; (d) portability; and (e) accessibility. 12. (1) In order to satisfy the criterion respecting accessibility, the health care insurance plan of a province (a) must provide for insured health services on uniform terms and conditions and on a basis that does not impede or preclude, either directly or indirectly whether by charges made to insured persons or otherwise, reasonable access to those services by insured persons; (b) must provide for payment for insured health services in accordance with a tariff or system of payment authorized by the law of the province; (c) must provide for reasonable compensation for all insured health services rendered by medical practitioners or dentists; and (d) must provide for the payment of amounts to hospitals, including hospitals owned or operated by Canada, in respect of the cost of insured health services. (2) In respect of any province in which extra-billing is not permitted, paragraph (1)(c) shall be deemed to be complied with if the province has chosen to enter into, and has entered into, an agreement with the medical practitioners and dentists of the province that provides (a) for negotiations relating to compensation for insured health services between the province and provincial organizations that represent practising medical practitioners or dentists in the province; (b) for the settlement of disputes relating to compensation through, at the option of the appropriate provincial organizations referred to in paragraph (a), conciliation or binding arbitration by a panel that is equally representative of the provincial organizations and the province and that has an independent chairman; and (c) that a decision of a panel referred to in paragraph (b) may not be altered except by an Act of the legislature of the province. CONTRATS D'ASSURANCE ET SUBROGATION Contrats d'assurance prohibés. 15.  Nul ne doit faire ou renouveler un contrat d'assurance ou effectuer un paiement en vertu d'un contrat d'assurance par lequel un service assuré est fourni ou le coût d'un tel service est payé à une personne qui réside ou qui séjourne au Québec ou à une autre personne pour son compte, en totalité ou en partie. Contrats en vigueur pour d'autres services et biens. Si un tel contrat a aussi pour objet d'autres services et biens, il demeure en vigueur quant à ces autres services et biens et la considération prévue à l'égard de ce contrat doit être ajustée en conséquence, à moins que le bénéficiaire de ces services et de ces biens n'accepte de recevoir en échange des avantages équivalents. Délai de remboursement. Si la considération a été payée à l'avance, le montant du remboursement ou de l'ajustement, selon le cas, doit être remis dans les trois mois à moins que la personne assurée n'accepte au cours de cette période de recevoir des avantages équivalents. Montants inférieurs à 5 $. Si le montant total des remboursements ou des ajustements qui doivent être effectués à l'égard d'une même personne en vertu d'un contrat conclu pour au plus une année est inférieur à 5 $, le montant n'est pas exigible mais il doit être remis au ministre pour être versé au Fonds de la recherche en santé du Québec visé dans l'article 96. Exception. Le premier alinéa ne s'applique pas à un contrat qui a pour objet l'excédent du coût des services assurés rendus hors du Québec ou l'excédent du coût des médicaments dont la Régie assume le paiement. Il ne s'applique pas non plus à un contrat qui a pour objet la contribution que doit payer une personne assurée en vertu de la Loi sur l'assurance médicaments ( chapitre A-29.01). CONTRACT OF INSURANCE AND SUBROGATION Coverage under contract of insurance prohibited. 15.  No person shall make or renew a contract of insurance or make a payment under a contract of insurance under which an insured service is furnished or under which all or part of the cost of such a service is paid to a resident or temporary resident of Québec or to another person on his behalf. Contract in force for other services and property. If such a contract also covers other services and property it shall remain in force as regards such other services and property and the consideration provided with respect to such contract must be adjusted accordingly, unless the beneficiary of such services and of such property agrees to receive equivalent benefits in exchange. Delay for reimbursement. If the consideration was paid in advance, the amount of the reimbursement or adjustment, as the case may be, must be remitted within three months unless the insured person agrees, during such period, to receive equivalent benefits. Amounts less than $5. If the total amount of the reimbursements or adjustments to be made as regards one person under a contract made for not more than one year is less than $5, the amount shall not be exigible but it shall be remitted to the Minister to be paid to the Fonds de la recherche en santé du Québec contemplated in section 96. Excess cost. The first paragraph does not apply to a contract covering the excess cost of insured services rendered outside Québec or the excess cost of any medication of which the Board assumes payment nor does it apply to a contract covering the contribution payable by an insured person under the Act respecting prescription drug insurance ( chapter A-29.01). Loi sur l’assurance-maladie, L.R.Q., c. A-29, article 15 Health Insurance Act, R.S.Q., c. A-29, section 15. Constitution Act, 1982, s. 36, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 36. 1) Without altering the legislative authority of Parliament or of the provincial legislatures, or the rights of any of them with respect to the exercise of their legislative authority, Parliament and the legislatures, together with the government of Canada and the provincial governments, are committed to (a) promoting equal opportunities for the well-being of Canadians; (b) furthering economic development to reduce disparity in opportunities; and (c) providing essential public services of reasonable quality to all Canadians. 36. 1) Sous réserve des compétences législatives du Parlement et des législatures et de leur droit de les exercer, le Parlement et les législatures, ainsi que les gouvernements fédéral et provinciaux, s'engagent à a) promouvoir l'égalité des chances de tous les Canadiens dans la recherche de leur bien-être; b) favoriser le développement économique pour réduire l'inégalité des chances; c) fournir à tous les Canadiens, à un niveau de qualité acceptable, les services publics essentiels. 59 (2) Le juge peut à sa discrétion, une fois les mémoires de demande d'autorisation d'appel, d'appel ou de renvoi déposés et signifiés, autoriser l'intervenant à présenter une plaidoirie orale à l'audition de la demande d'autorisation d'appel, le cas échéant, de l'appel ou du renvoi, et déterminer le temps alloué pour la plaidoirie orale. 59 (2) After all of the memoranda of argument on an application for leave to appeal or the facta on an appeal or reference have been filed and served, a judge may, in his or her discretion, authorize an intervener to present oral argument at the hearing of the application for leave to appeal, if any, the appeal or the reference, and determine the time allotted for oral argument. 36. 1) Without altering the legislative authority of Parliament or of the provincial legislatures, or the rights of any of them with respect to the exercise of their legislative authority, Parliament and the legislatures, together with the government of Canada and the provincial governments, are committed to (a) promoting equal opportunities for the well-being of Canadians; (b) furthering economic development to reduce disparity in opportunities; and (c) providing essential public services of reasonable quality to all Canadians. 36. 1) Sous réserve des compétences législatives du Parlement et des législatures et de leur droit de les exercer, le Parlement et les législatures, ainsi que les gouvernements fédéral et provinciaux, s'engagent à a) promouvoir l'égalité des chances de tous les Canadiens dans la recherche de leur bien-être; b) favoriser le développement économique pour réduire l'inégalité des chances; c) fournir à tous les Canadiens, à un niveau de qualité acceptable, les services publics essentiels. Règles de la Cour suprême du Canada, DORS/2002-156, tel qu’amendées, Règle 59(2) Rules of the Supreme Court of Canada, SOR/2002-156, as amended, Rule 59(2) 36. 1) Without altering the legislative authority of Parliament or of the provincial legislatures, or the rights of any of them with respect to the exercise of their legislative authority, Parliament and the legislatures, together with the government of Canada and the provincial governments, are committed to (a) promoting equal opportunities for the well-being of Canadians; (b) furthering economic development to reduce disparity in opportunities; and (c) providing essential public services of reasonable quality to all Canadians. 36. 1) Sous réserve des compétences législatives du Parlement et des législatures et de leur droit de les exercer, le Parlement et les législatures, ainsi que les gouvernements fédéral et provinciaux, s'engagent à a) promouvoir l'égalité des chances de tous les Canadiens dans la recherche de leur bien-être; b) favoriser le développement économique pour réduire l'inégalité des chances; c) fournir à tous les Canadiens, à un niveau de qualité acceptable, les services publics essentiels.

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Carter: CMA submission regarding euthanasia and assisted death

https://policybase.cma.ca/en/permalink/policy13935

Last Reviewed
2011-03-05
Date
2014-08-27
Topics
Ethics and medical professionalism
Population health/ health equity/ public health
  1 document  
Policy Type
Court submission
Last Reviewed
2011-03-05
Date
2014-08-27
Topics
Ethics and medical professionalism
Population health/ health equity/ public health
Text
S.C.C. No. 35591 IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA) BETWEEN: LEE CARTER, HOLLIS JOHNSON, DR. WILLIAM SHOICHET, THE BRITISH COLUMBIA CIVIL LIBERTIES ASSOCIATION and GLORIA TAYLOR Appellants - and - ATTORNEY GENERAL OF CANADA and ATTORNEY GENERAL OF BRITISH COLUMBIA Respondents -and- ATTORNEY GENERAL OF ONTARIO, ATTORNEY GENERAL OF QUEBEC, ALLIANCE OF PEOPLE WITH DISABILITIES WHO ARE SUPPORTIVE OF LEGAL ASSISTED DYING SOCIETY, ASSOCIATION FOR REFORMED POLITICAL ACTION CANADA, THE CANADIAN CIVIL LIBERTIES ASSOCIATION, THE CANADIAN HIV/AIDS LEGAL NETWORK AND THE HIV & AIDS LEGAL CLINIC ONTARIO, THE CANADIAN MEDICAL ASSOCIATION, THE CANADIAN UNITARIAN COUNCIL, THE CATHOLIC CIVIL RIGHTS LEAGUE, THE FAITH AND FREEDOM ALLIANCE AND THE PROTECTION OF CONSCIENCE PROJECT, THE CATHOLIC HEALTH ALLIANCE OF CANADA, THE CHRISTIAN LEGAL FELLOWSHIP, THE CHRISTIAN MEDICAL AND DENTAL SOCIETY OF CANADA, THE CANADIAN FEDERATION OF CATHOLIC PHYSICIANS' SOCIETIES, THE COLLECTIF DES MEDECINS CONTRE L'EUTHANASIE, THE COUNCIL OF CANADIANS WITH DISABILITIES AND THE CANADIAN SOCIETY FOR COMMUNITY LIVING, THE CRIMINAL LA WYERS' ASSOCIATION (ONTARIO), DYING WITH DIGNITY, THE EV ANGELICAL FELLOWSHIP OF CANADA, THE FAREWELL FOUNDATION FOR THE RIGHT TO DIE and THE ASSOCIATION QUEBECOISE POUR LE DROIT DE MOURIR DANS LA DIGNITE, and THE EUTHANASIA PREVENTION COALITION AND THE EUTHANASIA PREVENTION COALITION - BRITISH COLUMBIA FACTUM OF THE INTERVENER THE CANADIAN MEDICAL ASSOCIATION Rules 37 and 42 of the Rules of the Supreme Court of Canada Interveners POLLEY FAITH LLP The Victory Building 80 Richmond Street West Suite 1300 Toronto, Ontario M5H 2A4 Harry Underwood and Jessica Prince Tel: ( 416) 365-1600 Fax: (416) 365-1601 hunderwood@polleyfaith.com jprince@polleyfaith.com Jean Nelson Tel: (613) 731-8610 Fax: (613) 526-7571 j ean.nelson@cma.ca Counsel for the Intervener, the Canadian Medical Association GOWLING LAFLEUR HENDERSON LLP 160 Elgin Street, Suite 2600 Ottawa, Ontario KIP 1 C3 D. Lynne Watt Tel: (613) 786-8695 Fax: (613) 788-3509 email lynne. watt@gowlings.com Ottawa Agent for the Intervener, the Canadian Medical Association ORIGINAL TO: The Registrar Supreme Court of Canada 301 Wellington Street Ottawa, Ontario KIA OJI COPIES TO: Counsel for the Appellants, Lee Carter, Hollis Johnson, Dr. William Shoichet, The British Columbia Civil Liberties Association and Gloria Taylor Joseph J. Arvay, Q.C. and Alison M. Latimer Farris, Vaughan, Wills & Murphy LLP 25 th Floor, 700 West Georgia Street Vancouver, BC V7Y 1B3 Tel: (604) 684-9151 Fax: (604) 661-9349 Email: jarvay@farris.com -and- Sheila M. Tucker Davis LLP 2800- 666 Burrard Street Vancouver, BC V6C 2Z7 Tel: (604) 643-2980 Fax: (604) 605-3781 Email: stucker@davis.ca Agent for the Appellants Jeffrey W. Beedell Gowling Lafleur Henderson LLP 160 Elgin Street, Suite 2600 Ottawa, Ontario KIP 1C3 Tel: (613) 233-1781 Fax: (613) 788-3587 Email: jeff. beedell@gowlings.com Counsel for the Respondent, Attorney General of Canada Donnaree Nygard and Robert Frater Department of Justice Canada 900 - 840 Howe Street Vancouver, BC V6Z 2S9 Tel: (604) 666-3049 Fax: (604) 775-5942 Email: donnaree.nygard@justice.gc.ca Counsel for the Respondent, Attorney General of British Columbia Jean M. Walters Ministry of Justice Legal Services Branch 6th Floor - 1001 Douglas Street PO Box 9230 Stn Prov Govt Victoria, BC V8W 9J7 Tel: (250) 356-8894 Fax: (250) 356-9154 Email: jean.walters@gov.bc.ca Counsel for the Intervener, Attorney General of Ontario Zachary Green Attorney General of Ontario 720 Bay Street, 4th Floor Toronto, ON MSG 2Kl Tel: ( 416) 326-4460 Fax: (416) 326-4015 Email: zachary.green@ontario.ca Agent for the Respondent, Attorney General of Canada Robert Frater Department of Justice Canada Civil Litigation Section 50 O'Connor Street, Suite 50 Ottawa, Ontario KIA 0H8 Tel: (613) 670-6289 Fax: (613) 954-1920 Email: ro bert. frater@ j ustice. gc.ca Agent for the Respondent, Attorney General of British Columbia Robert E. Houston, Q.C. Burke-Robertson 441 MacLaren Street, Suite 200 Ottawa, Ontario K2P 2H3 Tel: (613) 236-9665 Fax: (613) 235-4430 Email: rhouston@burkerobertson.com Agent for the Intervener, Attorney General of Ontario Robert E. Houston, Q.C. Burke-Robertson 441 MacLaren Street, Suite 200 Ottawa, Ontario K2P 2H3 Tel: (613) 236-9665 Fax: (613) 235-4430 Email: rhouston@burkerobertson.com Counsel for the Intervener, Attorney General of Quebec Sylvain Leboef and Syltiane Goulet Procureur general du Quebec 1200, Route de L'Eglise, 2eme etage Quebec, QC GlV 4Ml Tel: (418) 643-1477 Fax: ( 418) 644-7030 Email: sylvain.leboeuf@justice.gouv.gc.ca Counsel for the Intervener, Council of Canadians with Disabilities and the Canadian Association for Community Living David Baker Sarah Mohamed Bakerlaw 4 711 Yonge Street, Suite 509 Toronto, Ontario M2N 6K8 Tel: (416) 533-0040 Fax: ( 416) 533-0050 Email: dbaker@bakerlaw.ca Counsel for the Intervener, Christian Legal Fellowship Gerald D. Chipeur, Q.C. Miller Thomirson LLP 3000, 700-9t A venue SW Calgary, Alberta T2P 3V4 Tel: (403) 298-2425 Fax: (403) 262-0007 Agent for the Intervener, Attorney General of Quebec Pierre Landry Noel & Associes 111 Champlain Street Gatineau, QC J8X 3Rl Tel: (819)771-7393 Fax: (819) 771-5397 Email: p.landry@noelassocies.com Agent for the Intervener, Council of Canadians with Disabilities and the Canadian Association for Community Living Marie-France Major Supreme Advocacy LLP 397 Gladstone A venue, Suite 100 Ottawa, Ontario K2P 0Y9 Tel: (613) 695-8855 Ext: 102 Fax: (613) 695-8580 Email: mfmajor@supremeadvocacy.ca Agent for the Intervener, Christian Legal Fellowship Eugene Meehan, Q.C. Supreme Advocacy LLP 397 Gladstone A venue, Suite 100 Ottawa, Ontario K2P 0Y9 Tel: (613) 695-8855 Ext: 101 Fax: (613) 695-8580 Email: emeehan@supremeadvocacy.ca Counsel for the Intervener, Agent for the Intervener, Canadian HIV/AIDS Legal Network and the Canadian HIV/AIDS Legal Network and the HIV & AIDS Legal Clinic Ontario HIV & AIDS Legal Clinic Ontario Gordon Capern Michael Fenrick Paliare, Roland, Rosenberg, Rothstein, LLP 155 Wellington Street West, 35 th Floor Toronto, Ontario M5V 3Hl Tel: ( 416) 646-4311 Fax: (416) 646-4301 Email: gordon.capem@paliareroland.com Counsel for the Intervener, Reformed Political Action Canada Andre Schutten ARPA Canada I Rideau Street, Suite 700 Ottawa, Ontario KIN 8S7 Tel: (613) 297-5172 Fax: (613) 670-5701 Email: andre@ARP A Canada.ca Counsel for the Intervener, Collectif des medecins contre l'euthanasie Pierre Bienvenu Andres C. Garin Vincent Rochette Norton Rose Fulbright Canada LLP 1, Place Ville Marie, Bureau 2500 Montreal, Quebec H3B IRI Tel: (514) 847-4452 Fax: (514) 286-5474 Email: pierre. bienvenue@nortonrose.com Marie-France Major Supreme Advocacy LLP 397 Gladstone Avenue, Suite 100 Ottawa, Ontario K2P 0Y9 Tel: (613) 695-8855 Ext: 102 Fax: (613) 695-8580 Email: mfmajor@supremeadvocacy.ca Agent for the Intervener, Collectif des medecins contre l'euthanasie Sally Gomery Norton Rose Fulbright Canada LLP 1500-45 O'Connor Street Ottawa, Ontario KIP 1A4 Tel: (613) 780-8604 Fax: (613) 230-5459 Email: sally. gomery@nortonrose.com Counsel for the Intervener, Evangelical Fellowship of Canada Geoffrey Trotter Geoffrey Trotter Law Corporation 1185 West Georgia Street, suite 1700 Vancouver, British Columbia V6E 4E6 Tel: (604) 678-9190 Fax: (604) 259-2459 Email: gt @ gtlawcorp .com Counsel for the Intervener, Christian Medical and Dental Society of Canada Albertos Polizogopoulos Vincent Dagenais Gibson LLP 260 Dalhousie Street, Suite 400 Ottawa, Ontario KlN 7E4 Tel: (613) 241-2701 Fax: (613) 241-2599 Email: albertos @ vdg.ca Counsel for the Intervener, Canadian Federation of Catholic Physicians' Societies Geoffrey Trotter Geoffrey Trotter Law Corporation 1185 West Georgia Street, suite 1700 Vancouver, British Columbia V6E 4E6 Tel: (604) 678-9190 Fax: (604) 259-2459 Email: gt@gtlawcorp.com Agent for the Intervener, Evangelical Fellowship of Canada Albertos Polizogopoulos Vincent Dagenais Gibson LLP 260 Dalhousie Street, Suite 400 Ottawa, Ontario K 1 N 7E4 Tel : (613) 241-2701 Fax: (613) 241-2599 Rmail: albertos@vdg.ca Agent for the Intervener, Canadian Federation of Catholic Physicians' Societies Marie-France Major Supreme Advocacy LLP 397 Gladstone Avenue, Suite 100 Ottawa, Ontario K2P 0Y9 Tel: (613) 695-8855 Ext : 102 Fax: (613) 695-8580 Email: mfmajor@.supremeadvocacy.ca Counsel for the Intervener, Dying with Dignity Cynthia Petersen Kelly Doctor Sack Goldblatt Mitchell LLP 1100-20 Dundas Street West, Box 180 Toronto, Ontario MSG 2G8 Tel: (416) 977-6070 Fax: (416) 591-7333 Email: cpetersen@sgmlaw.com Counsel for the Intervener, Catholic Health Alliance of Canada Russell G. Gibson Albertos Polizogopoulos Vincent Dagenais Gibson LLP 260 Dalhousie Street, Suite 400 Ottawa, Ontario K 1 N 7E4 Tel: (613) 241-2701 Ext. 229 Fax: (613) 241-2599 Email: russell.gibson@vdg.ca Counsel for the Intervener, Criminal Lawyers' Association (Ontario) Marlys A. Edwarth Daniel Sheppard Sack Goldblatt Mitchell LLP 1100-20 Dundas Street West Toronto, Ontario MSG 2G8 Tel: (416) 979-4380 Fax: (416) 979-4430 Email: medwarth@ sgmlaw.com Agent for the Intervener, Dying with Dignity Raija Pulkkinen Sack Goldblatt Mitchell LLP 500-30 Metcalfe Street Ottawa, Ontario KIP 5L4 Tel: (613) 235-5327 Fax: (613) 235-3041 Email: rpulkkinen@sgmlaw.com Agent for the Intervener, Criminal Lawyers' Association (Ontario) D. Lynne Watt Gowling Lafleur Henderson LLP 160 Elgin Street, Suite 2600 Ottawa, Ontario K 1 P 1 C3 Tel: (613) 786-8695 Fax: (613) 788-3509 Email: lynne. watt@gowlings.com Counsel for the Intervener, Farewell Foundation For The Right To Die Joseph J. Arvay, Q.C. Alison Latimer Farris, Vaughan, Wills & Murphy LLP 700 West Georgia Street, 25th Floor Vancouver, British Columbia V7Y 1B3 Tel: (604) 684-9151 Fax: (604) 661-9349 Email: jarvay@farris.com Counsel for the Intervener, Association Quebecoise pour le droit de mourir dans la dignite Joseph J. Arvay, Q.C. Alison Latimer Farris, Vaughan, Wills & Murphy LLP 700 West Georgia Street, 25th Floor Vancouver, British Columbia V7Y 1B3 Tel: (604) 684-9151 Fax: (604) 661-9349 Email: jarvay@farris.com Counsel for the Intervener, Canadian Civil Liberties Association Christopher D. Bredt Ewa Krajewska Margot Finley Borden Ladner Gervais LLP Scotia Plaza, 40 King Street West Toronto, Ontario M5H 3Y4 Tel: (416) 367-6165 Fax: (416) 361-7063 Email: cbredt@blg.com Agent for the Intervener, Farewell Foundation For The Right To Die Jeffrey W. Beedell Gowling Lafleur Henderson LLP 160 Elgin Street, Suite 2600 Ottawa, Ontario KIP 1C3 Tel: (613) 786-0171 Fax: (613) 788-3587 Email: jeff.beedell@gowlings.com Agent for the Intervener, Association Quebecoise pour le droit de mourir dans la dignite Jeffrey W. Beedell Gowling Lafleur Henderson LLP 160 Elgin Street, Suite 2600 Ottawa, Ontario K 1 P 1 C3 Tel: (613) 786-0171 Fax: (613) 788-3587 Email: jeff.beedell@gowling .com Agent for the Intervener, Canadian Civil Liberties Association Nadia Effendi Borden Ladner Gervais LLP World Exchange Plaza 100 Queen Street, Suite 100 Ottawa, Ontario KlP 119 Tel: (613) 237-5160 Fax: (613) 230-8842 Counsel for the Intervener, Catholic Civil Rights League Ranjan K. Agarwal Jack R. Maslen Bennett Jones LLP 3400 One First Canadian Place P.O. Box 130, Station 1st Canadian Place Toronto, Ontario M5X 1A4 Tel: (416) 863-1200 Fax: (416) 863-1716 Email: agarwalr@bennettjones.com Counsel for the Intervener, Faith and Freedom Alliance and Protection of Conscience Project Geoffrey Trotter Ranjan K. Agarwal Jack R. Maslen Geoffrey Trotter Law Corporation 1185 West Georgia Street, suite 1700 Vancouver, British Columbia V6E 4E6 Tel: (604) 678-9190 Fax: (604) 259-2459 Email: gt@gtlawcorp.com Agent for the Intervener, Catholic Civil Rights League Sheridan Scott Bennett Jones LLP 1900-45 O'Connor Street World Exchange Plaza Ottawa, Ontario KlP 1A4 Tel: (613) 683-2302 Fax: (613) 683-2323 Email: scotts@bennettjones.com Agent for the Intervener, Faith and Freedom Alliance and Protection of Conscience Project Marie-France Major Supreme Advocacy LLP 397 Gladstone Avenue, Suite 100 Ottawa, Ontario K2P 0Y9 Tel: (613) 695-8855 Ext: 102 Fax: (613) 695-8580 Email: mfmajor@supremeadvocacy.ca Counsel for the Intervener, Alliance of People with Disabilities who are Supportive of Legal Assisted Dying Society Angus M. Gunn, Q.C. Borden Ladner Gervais LLP 1200-200 Burrard Street Vancouver, British Columbia V7X 1 T2 Tel: (604) 687-5744 Fax: (604) 687-1415 Counsel for the Intervener, Canadian Unitarian Council Tim A. Dickson R.J.M. Androsoff Farris, Vaughan, Wills & Murphy LLP 700 West Georgia Street, 25 th Floor Vancouver, British Columbia V7Y 1 B3 Tel: (604) 661-9341 Fax: (604) 661-9349 Email: tdickson@farris.com Counsel for the Intervener, Euthanasia Prevention Coalition and Euthanasia Prevention Coalition -British Columbia Hugh R. Scher Scher Law Professional Corporation 69· Bloor Street East, Suite 210 Toronto, Ontario M4W 1A9 Tel: (416) 515-9686 Fax: ( 416) 969-1815 Email: hugh@sdlaw.ca Agent for the Intervener, Alliance of People with Disabilities who are Supportive of Legal Assisted Dying Society Nadia Effendi Borden Ladner Gervais LLP World Exchange Plaza 100 Queen Street, Suite 100 Ottawa, Ontario KIP 1J9 Tel: (613) 237-5160 Fax: (613) 230-8842 Agent for the Intervener, Canadian Unitarian Council Nadia Effendi Borden Ladner Gervais LLP World Exchange Plaza 100 Queen Street, Suite 100 Ottawa, Ontario KIP 1J9 Tel: (613) 237-5160 Fax: (613) 230-8842 Agent for the Intervener, Euthanasia Prevention Coalition and Euthanasia Prevention Coalition -British Columbia Yael Wexler Fasken Martineau DuMoulin LLP 55 Metcalfe Street, Suite 1300 Ottawa, Ontario MlP 6L5 Tel: (613) 236-3882 Fax: (613) 230-6423 Email: ywexler@fasken.com Index Part I: Overview of Argument .... ... .. . ... . ... . ...... . ............. ... ... ... ......... .. .. .. . .. ... ... ... .. ... .. ..... .... .. ... ..... 1 Part II: Statement of Argument. ... ... .. ...... ... .. ........ ... ... ..... .... ... .. ..... ... ... ... .. .. ... .... ... ......... ...... ... ..... 2 A. The CMA's policy on euthanasia and assisted suicide .. ....... ......... .... .. ..... ...... ..... ... ... .. 2 B. The implications of a change in the law ...................... .... ... ................. ..... ... ...... .. ... ...... 5 1. Palliative care .............................................................. ...... ... .. ... ... ....... ... ............ . 5 2. Concerns over safeguards .................................. ..... . ........ . .......... .. ......... ........... .. 7 3. Protections for physicians ...... ..... .. .... ......... ... .... ... .. ... .. .. ... ... . .......... . .. ... ... .. ... .. .. ... 8 Part III: Submissions regarding remedy ............. ... ...... ... ... ... .... ... ... ... ........ ............................. ... . 9 Part IV: Submissions regarding costs ..... . ...... ........ ..... .. ........ . ... .. .. ....... ....... ... .... .. ..... ..... .. ... . ..... .. 9 Part V: Request for oral argument.. .... ... .. .. .......... .. .. ... .. ..... .. ..... .. ... . ........ ... .. .... .......... ....... ...... .. 10 -1- Part I: Overview of Argument 1. The policy of the Canadian Medical Association ( the "CMA") on euthanasia and assisted suicide1 forms part of the trial record.2 The policy was debated at successive annual meetings of the CMA's members in 2013 and 2014, resulting in its amendment. In 2013, new definitions were added to clarify key terminology used. In August 2014, a motion was passed by delegates to CMA's General Council, and affirmed by the CMA Board of Directors, supporting the right of all physicians, within the bounds of existing legislation, to follow their conscience when deciding whether or not to provide medical aid in dying. 3 The policy will be amended as a consequence. 2. It is anticipated that the policy, once amended, will continue to reflect the ethical principles for physicians to consider in choosing whether or not to participate in medical aid in dying. 3. The statement of support for matters of conscience now exists alongside the statement in the CMA policy that "Canadian physicians should not participate in euthanasia or assisted suicide." As long as such practices remain illegal, the CMA believes that physicians should not participate in medical aid in dying. If the law were to change, the CMA would support its members who elect to follow their conscience. 4. A portion of the CMA's membership believes that patients should be free to choose medical aid in dying as a matter of autonomy. Other voices highlight that participation would undermine long-established ethical principles applicable to the practice of medicine. Amidst this 1 CMA Policy: Euthanasia and Assisted Suicide (Update 2014), https://www.cma.ca/Assets/assetslibrary/ document/en/about-us/PD14-06.pdf#search=assisted%20death. 2 Carter v. Canada (Attorney General}, 2012 BCSC 886, paragraphs 6 and 274. 3 Resolutions adopted at the 14ih Annual Meeting of the Canadian Medical Association, Aug. 18-20, 2014: ~www.cma.ca/Assets/assets-lib rary/document/en/advocacy/ Flnal -Resolutions-GC-2014-end-of-lifecare. pdf. -2- diversity of views, however, there is a unifying theme: one of respect for the alternative perspective. This element was highlighted in the policy motion coming out of the CMA's August 2014 General Council meeting. 5. The CMA accepts that the decision of whether or not medical aid in dying should be allowed as a matter of law is for lawmakers, not medical doctors, to determine. The policy itself acknowledges, uniquely among CMA policies in this respect, that "[i]t is the prerogative of society to decide whether the laws dealing with euthanasia and assisted suicide should be changed." 6. As the national voice of physicians across the country, the CMA intervenes in this appeal desiring to assist the Court by providing its perspective on the rationale for the diverse views expressed by its membership, and to highlight practical considerations that must be assessed if the law were to change. Part II: Statement of Argument A. The CMA's policy on euthanasia and assisted suicide 7. The CMA's policy on euthanasia and assisted suicide4 was adopted in 2007, replacing and consolidating two previous CMA policies5 , and has been amended twice since then as noted above. 8. In an effort to promote broad public and member discussion, in the first half of 2014 the CMA hosted a series of town hall meetings across Canada on end of life care issues. Members of the public and the profession were able to attend the town halls in person, or post comments 4 CMA Policy: Euthanasia and Assisted Suicide (Update 2014): https://www.cma.ca/Assets/assetslibrary/ document/en/about-us/PD14-06.pdf#search=assisted%20death. 5 Physician Assisted Death 1995 and Euthanasia and Assisted Suicide (1998). -3 - online, to provide their perspectives and opm1ons on, inter alia, euthanasia and physicianassisted suicide. 6 9. The CMA adopts policies in order to inform the organization's advocacy efforts, and to provide physician members with an understanding of the views and opinions of their national representative organization and to reflect the views of its membership. The CMA' s policies are not meant to mandate a standard of care for members or to override an individual physician's conscience. 10. The CMA recognizes that many of its policies are referenced by other health care groups and the courts, as well as the provincial and territorial medical regulatory authorities. 11. In general, those CMA members who oppose medical aid in dying do so because of the derogation from established medical ethical principles and clinical practices that would result. Those who support medical aid in dying do so because of the equally established principles of considering patient well-being and patient autonomy. The policy in its current form reflects these various considerations . 12. Physicians have a tremendous amount of compassion and concern for patients who are suffering near the end of their lives, and strive to improve their patients' quality of life for the remainder of their lives. Physicians are trained to be healers. For most Canadian physicians , the question is not a simple matter of balancing between patient autonomy and professional standards, but goes much deeper, to the very core of what it means to be a medical professional. 6 The CMA published two reports coming out of the end of life care town halls - a public report in June 2014 and a CMA members' report in July 2014 - both of which can be found on the CMA's website. -4- 13. One rationale for the position in opposition to physician participation is that euthanasia and assisted suicide would have, as the policy states, "unpredictable effects on the practice of medicine" as well as the physician-patient relationship. 7 14. At the same time, the policy recognizes the principle of patient autonomy, and the fact that it is a competing consideration. It cites several articles from the CMA Code of Ethics 8 that emphasize the importance of patient well-being and autonomy. 9 Physicians are advised to "consider first the well-being of your patient." 15. Opposition to paiiicipation is found in statements from the World Medical Association and various national medical associations akin to the CMA. 10 In jurisdictions where medical aid in dying has been legali zed , the practice is considered "ethically sound .. . and part of end of life care" by the national medical association in the Netherlands and the Belgian association has not published any policy . 11 7 CMA Policy: Euthanasia and Assisted Suicide (Update 2014): https://www.cma.ca/Assets/assetslibrary/ document/en/about-us/PD14-06.pdf#search=assisted%20death. 8 For example, "Provide your patients with the information they need to make informed decisions about their medical care, and answer their questions to the best of your ability"; "Respect the right of a competent patient to accept or reject any medical care recommended"; and "Ascertain wherever possible and recognize your patient's wishes about the initiation, continuation or cessation of life-sustaining treatment." 9 The concept of patient autonomy is usually associated with allowing or at least enabling patients to make their own decisions about which health care treatments they will or will not receive, or incorporating their point of view into assessments of the appropriateness and effectiveness of treatment options. See: Entwistle, VA. , Carter, SM ., Cribb, A. & Mccaffery, K. (2010) . 'Supporting patient autonomy : The importance of clinician-patient relationships'. Journal of General Internal Medicine, vol 25, no. 7, pp. 741-745; and Sullivan MD. "The new subjective medicine: taking the patient's point of view on health care and health" . Soc Sci Med 56:1595 - 1604, 2003 . 10 World Medical Association Statement on Physician-Assisted Dying. Adopted by the 44th World Medical Assembly, Marbella, Spain, September 1992 and editorially revised by the 170th WMA Council Session, Divonne-les-Bains, France, May 2005: http ://www.wma.net/en/30publications/10policies/p13/. British Medical Association. What is the current BMA policy on assisted dying? http://bma.org.uk/practical-support-at-work/ethics/bma-policyassisted- dying. Australian Medical Association. Position Statement on the Role of the Medical Practitioner in End of Life Care 2007, section 10 : https://ama .com.au/position -statement/role-medical- pr actit ioner-end -life-ca re-2007 . American Medical Association' s Opinion 2. 211- Physician-Assisted Suicide: http://www .amaass n.org/ama/pub/p hys i cian-r esources/ medi ca1 -ethic s/ co de-med ica l-ethi cs/o pin ion2211 .page ?. 11 KNMG. Euthanasia in the Netherlands. Available at: http://knmg.artsennet.nl/Dossiers-9/Dossiersthematrefwoord / Levenseinde/ Eu t hanasia-in-the-Netherlands -1.htm. -5- 16. It is acknowledged that just moral and ethical arguments form the basis of arguments that both support and deny assisted death. The CMA accepts that, in the face of such diverse opinion, based on individuals' consciences, it would not be appropriate for it to seek to impose or advocate for a single standard for the medical profession. 1 7. In any event, the CMA accepts that the decision as to the lawfulness of the current prohibition on medical aid in dying is for patients and their elected representatives as lawmakers to determine, not physicians. B. The implications of a change in the law 18. The CMA and its members have practical and procedural concerns to bring to the Court for reflection with respect to the legalization of medical aid in dying and the implications for medical practice. Three such implications are addressed below. 1. Palliative care 19. One question and element highlighted in CMA policy formulation is the role of palliative care and whether adequate public access is a precondition to changing the law. The CMA acknowledges that the desire to access medical aid in dying is predicated, at least in part, on the inadequacy or inability of palliative care to address a patient's needs in particular circumstances. The policy currently recognizes that adequate palliative care is a prerequisite to the legalization of medical aid in dying. That is because patients should never have to choose death because of unbearable pain which can, in fact, be treated, but the treatment cannot, in reality, be accessed. 20. However, even if palliative care were readily available and effective, there would likely be some patients who would still opt for medical aid in dying over palliative care. Moreover, it -6- seems wrong to deny grievously ill patients the option of medical aid in dying simply because of systemic inadequacies in the delivery of palliative care. 21. The public and the medical profession lack current, specific and non-anecdotal information as to the availability of adequate palliative care across Canada. Notwithstanding this lack of rigorous data, concerns are often expressed. 12 As Justice Smith held at trial, "High quality palliative care is far from universally available in Canada."13 The policy itself provides that "[ e ]fforts to broaden the availability of palliative care in Canada should be intensified." 22. Canada has no national strategy to ensure the delivery of a uniformly high standard of palliative care across the country. Similarly, there are no national uniform standards which direct when and how palliative care is to be provided and by which physicians. At the CMA's annual meeting in August 2014, motions were passed as policy affirming that (i) all health care providers should have access to referral for palliative care services and expertise, (ii) a strategy should be developed for advance care planning, palliative and end of life care in all provinces and territories, and (iii) the CMA will engage in physician human resource planning to develop an appropriate strategy to ensure the delivery of quality palliative care throughout Canada. 14 23. Regardless of the outcome of this appeal, the Canadian public and the medical profession must unite in insisting upon the dedication of appropriate resources to overcome the deficiencies identified above. Palliative care will continue to be a focus of the CMA's future policy development. 12 The Senate of Canada: the Honourable Sharon Carstairs, Raising the Bar: A Roadmap for the Future of Palliative Care in Canada, June 2010, http://www.chpca.net/media/7859/Raising the Bar June 2010.pdf, pages 12 and 16. 13 Carter v. Canada (Attorney General). 2012 BCSC 886, paragraph 192. 14 Resolutions adopted at the 14ih Annual Meeting of the Canadian Medical Association, Aug. 18-20, 2014: https://www.cma.ca/Assets/assets~libra ry/document/en/advocacy/Final-Resolutions-GC-2014-end-of-!ife-care.pdf -7- 2. Concerns over safeguards 24. The trial judge placed great reliance on the ability of physicians to assess the competency of patients requesting medical aid in dying and the voluntariness of their wishes. 15 The CMA submits that the challenges physicians will face in making these assessments have been understated, especially in the end of life care context where the consequences of decisions are particularly grave and in a public medical system in which resource constraints are a pressing issue. 16 25. The CMA submits that these assessments will involve significant new responsibilities that warrant comprehensive study by and with physicians for the following reasons: 15 a) Patients must be afforded a full right of informed consent, but the ordinary context in which a physician obtains the patient's informed consent would not apply since the intervention would be initiated not by the physician's recommendation but by the patient's request and since the patient's decision may tum more than usually is the case upon considerations apart from the expected efficacy of the treatment. b) A patient may be subject to influences which the patient is motivated not to disclose to his or her physician and which may be very difficult to detect. c) Such important decisions are best made following careful discussions between physician and patient, well in advance, concerning the patient's end of life wishes generally. The CMA and its provincial and territorial medical association colleagues note that these types of discussions do not now routinely occur, and that when they do, patients' assessments of their goals can and do evolve over the course of their illness. 17 Carter v. Canada (Attorney General}, 2012 BCSC 886, paragraphs 883, 1240 and 1367. 16 Chaoulli v. Quebec (Attorney General}, (2005] 1 SCR 791, paragraphs 173 and 221-222. 17 The Policy urges that "a Canadian study of medical decision making during dying" be undertaken. It explains that "relatively little" is known about "the frequency of various medical decisions made near the end of life, how these -8- d) It may be very difficult to assess competency and voluntariness in some patients (for example, the very old, the very ill and the depressed) and in some settings (for example, the emergency room and the intensive care unit) where there may not be an established physician-patient relationship. e) Institutional supports are lacking, including recognition in provincial fee schedules of the time that is required for meetings with patients and their families. 3. Protections for physicians 26. The CMA submits that, if the law were to change, any regime of medical aid in dying must legally protect those physicians who choose to participate from criminal, civil or disciplinary proceedings or sanctions. 27. In addition, if the law were to change, no physician should be compelled to participate in or provide medical aid in dying to a patient, either at all, because the physician conscientiously objects to medical aid in dying, or in individual cases, in which the physician makes a clinical assessment that the patient's decision is contrary to the patient's best interests. Notably, no jurisdiction that has legalized medical aid in dying compels physician participation. 18 If the decisions are made and the satisfaction of patients, families, physicians and other caregivers with the decisionmaking process and outcomes." See also the Ontario Medical Association, 'Ontario Doctors Launch End of Life Care Plan'. Available at: https:Uwww.oma.org/resources/documents/eolcstrategyframework.pdf. 18 Quebec: Bill 52, An Act respecting end-of-life care, 1st Sess, 41st Leg, Quebec, 2014 cl 50 (assented to 10 June 2014), SQ 2014, c2; Netherlands: Termination of Life on Request and Assisted Suicide (Review Procedures) Act (2002) .b.1ti;! ://www .eu th anasi ecom missie .n 1/1 mages/Wet%20toetsi ng%201evensbeei nd iging%20op%20verzoek%20en%20 hulp%20bij%20zelfdoding%20Engels tcm52-36287.pdf; Switzerland: Suiss Criminal Code, Book Two : Specific Provisions, Title One: Offences against Life and Limb, Article 115 (1942). http://www.admin.ch/ opc/ en/ classifiedcompilation/ 19370083/index.html; Belgium: Loi relative a l'euthanasie, Chapitre 6, article 14 (2002) http://www.ejustice.just.fgov.be/cgi lei/change lg.pl?language=fr&la=F&ta ble name=loi&cn=2002052837; Luxembourg: Loi du 16 mars 2009 sur l'euthanasie et /'assistance au suicide, Chapitre 7, article 15 (2009). http://www.legil ux. pu bl ic.Ju/1 eg/a/arch ives/2009/0046/a046. pdf#page= 7; Washington: The Washington Death with Dignity Act, RCW, 70 §70.245.190 (2009). http://apps.leg.wa.gov/RCW/default.aspx?cite=70.245.190; Oregon: The Oregon Death with Dignity Act, ORS, 127 §127.885 4.01 (1997). http ://public. hea Ith. oregon .gov /P roviderP a rtnerReso u rces/Eva I u ati on Res ea rch/Deathwith Dign i tyAct/Docu men ts/ statute.pdf; Vermont: An act relating to patient choice and control at the end of life, VSA, 113 § 5285 (a) {2013). -9- attending physician declines to participate, every jurisdiction that has legalized medical aid in dying has adopted a process for eligible patients to be transferred to a participating physician. 19 28. While the Court cannot and should not set out a comprehensive regime, the CMA submits that it can indicate that a practicable legislative regime for medical aid in dying must legally protect those physicians who choose to provide this new intervention to their patients, as well as those who do not. Part III: Submissions regarding remedy 29. If the law is changed, the CMA would ask this Court to adopt a remedy that would preserve the autonomy and constitutional rights of patients and their health care providers. To that end, the CMA asks the Court to adopt a remedy akin to what Justice Smith ordered at the trial level: suspending the effect of a declaration for one year from the date of any decision and instituting a process for individual exemptions such as that afforded to the late Ms. Taylor. Part IV: Submissions regarding costs 30. The CMA seeks no costs and asks that none be awarded against it. http://www.leg.state.vt.us/docs/2014/Acts/ACT039.pdf; New-Mexico: Morris v New-Mexico (2014); and Montana: Baxter v Montana, 482 LEXIS at 59 (2008). 19 Canadian Medical Association, Schedule A: Legal Status of Physician-Assisted Dying (PAD) in Jurisdictions with Legislation, https://www.cma.ca/ Assets/ assets-II bra ry/ document/ en/advocacy/ EO L/Leg a 1-status-p hysicia nassi sted-d eat h-j u risd i cti on slegislation. odf#search=schedule%20A%3A%201egal%20stacus%20of%20physician%2Dassisted%20death, page 3. -10- Part V: Request for oral argument 31. The CMA requests permission to make fifteen minutes of oral argument at the hearing of this appeal. ALL OF WHICH IS RESPECTFULLY SUBMITTED, this 27th day of August, 2014. /_/ - Harry Underwood Jean Nels

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Joint statement on scopes of practice

https://policybase.cma.ca/en/permalink/policy219

Last Reviewed
2017-03-04
Date
2003-03-01
Topics
Health human resources
  1 document  
Policy Type
Policy endorsement
Last Reviewed
2017-03-04
Date
2003-03-01
Topics
Health human resources
Text
Joint Statement on Scopes of Practice (February 2003) Canada's physicians, nurses, pharmacists and other health professionals recognize that a sustainable health workforce is a key challenge facing our health care system. In this regard, scopes of practice is an important issue that needs to be addressed. The Canadian Medical Association (CMA), the Canadian Nurses Association (CNA) and the Canadian Pharmacists Association (CPhA) have approved the following principles and criteria for the determination of scopes of practice. The primary purposes of such determinations are to meet the health care needs of Canadians, and to serve the interests of patients and the public safely, efficiently and competently. The CPhA, CNA and CMA believe that policy decisions taken in this area must put patients first. Secondly, they should be grounded in principles that reflect our commitment to professionalism, lifelong learning and patient safety. Thirdly, that there be recognition of the need for legislative and regulatory changes to support evolving scopes of practice. Moreover, we believe that health professionals must be involved in decision-making processes in this area. Principles Focus: Scopes of practice statements should promote safe, ethical, high-quality care that responds to the needs of patients and the public in a timely manner, is affordable and is provided by competent health care providers. Flexibility: A flexible approach is required that enables providers to practise to the extent of their education, training, skills, knowledge, experience, competence and judgment while being responsive to the needs of patients and the public. Collaboration and cooperation: In order to support interdisciplinary approaches to patient care and good health outcomes, physicians, nurses and pharmacists engage in collaborative and cooperative practice with other health care providers who are qualified and appropriately trained and who use, wherever possible, an evidence-based approach. Good communication is essential to collaboration and cooperation. Coordination: A qualified health care provider should coordinate individual patient care. Patient choice: Scopes of practice should take into account patients' choice of health care provider. Criteria Accountability: Scopes of practice should reflect the degree of accountability, responsibility and authority that the health care provider assumes for the outcome of his or her practice. Education: Scopes of practice should reflect the breadth, depth and relevance of the training and education of the health care provider. This includes consideration of the extent of the accredited or approved educational program(s), certification of the provider and maintenance of competency. Competencies and practice standards: Scopes of practice should reflect the degree of knowledge, values, attitudes and skills (i.e., clinical expertise and judgement, critical thinking, analysis, problem solving, decision making, leadership) of the provider group. Quality assurance and improvement: Scopes of practice should reflect measures of quality assurance and improvement that have been implemented for the protection of patients and the public. Risk assessment: Scopes of practice should take into consideration risk to patients. Evidence-based practices: Scopes of practice should reflect the degree to which the provider group practices are based on valid scientific evidence where available. Setting and culture: Scopes of practice should be sensitive to the place, context and culture in which the practice occurs. Legal liability and insurance: Scopes of practice should reflect case law and the legal liability assumed by the health care provider including mutual professional malpractice protection or liability insurance coverage. Regulation: Scopes of practice should reflect the legislative and regulatory authority, where applicable, of the health care provider. Principles and criteria to ensure safe, competent and ethical patient care should guide the development of scopes of practice of health care providers. This document is based on a January 2002 policy developed by the Canadian Medical Association whicb has been endorsed by the Canadian Nurses Association and the Canadian Pharmacists Association. We welcome the support of other health care providers for these principles and criteria regarding scopes of practice.

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Canada’s lower-risk cannabis use guidelines (LRCUG)

https://policybase.cma.ca/en/permalink/policy13726

Date
2017-05-26
Topics
Pharmaceuticals/ prescribing/ cannabis/ marijuana/ drugs
  1 document  
Policy Type
Policy endorsement
Date
2017-05-26
Topics
Pharmaceuticals/ prescribing/ cannabis/ marijuana/ drugs
Text
Canada’s Lower-Risk Cannabis Use Guidelines (LRCUG) Recommendations
Cannabis use has health risks best avoided by abstaining
Delay taking up cannabis use until later in life
Identify and choose lower-risk cannabis products
Don’t use synthetic cannabinoids
Avoid smoking burnt cannabis—choose safer ways of using
If you smoke cannabis, avoid harmful smoking practices
Limit and reduce how often you use cannabis
Don’t use and drive, or operate other machinery
Avoid cannabis use altogether if you are at risk for mental health problems or are pregnant
Avoid combining these risks Reference summary Fischer, B., Russell, C., Sabioni, P., van den Brink, W., Le Foll, B., Hall, W., Rehm, J. & Room, R. (2017). Lower-Risk Cannabis Use Guidelines (LRCUG): An evidence-based update. American Journal of Public Health, 107(8). DOI: 10.2105/AJPH.2017.303818. Endorsements summary The LRCUG have been endorsed by the following organizations: Council of Chief Medical Officers of Health (in principle) Acknowledgment The Lower-Risk Cannabis Use Guidelines (LRCUG) are an evidence-based intervention project by the Canadian Research Initiative in Substance Misuse (CRISM), funded by the Canadian Institutes of Health Research (CIHR). A longer evidence summary of the guidelines, aimed at health professionals, is available at camh.ca. Cannabis use is a personal choice, but it comes with risks to your health and well-being. Follow these recommendations to reduce your risks. Cannabis use is a personal choice, but it comes with risks to your health and well-being. Follow these recommendations to reduce your risks. Health risks of cannabis use There is strong scientific evidence that cannabis use is associated with a variety of health risks. The risks depend on your constitution, which kinds of cannabis products you use and how or how often you use them. Some of the main health risks are:
problems with thinking, memory or physical co-ordination
impaired perceptions or hallucinations
fatal and non-fatal injuries, including those from motor-vehicle accidents, due to impairment
mental health problems and cannabis dependence
chronic respiratory or lung problems
reproductive problems. Reducing health risks related to cannabis use Cannabis use has health risks best avoided by abstaining To avoid all risks, do not use cannabis. If you decide to use, you could experience immediate, as well as long-term risks to your health and well-being. Any time you choose not to use, you avoid these risks. Delay taking up cannabis use until later in life Using cannabis at a young age, particularly before age 16, increases the likelihood of developing health, educational and social problems. Avoid cannabis use during adolescence. Generally, the later in life you begin to use cannabis, the lower the risk of problems. Identify and choose lower-risk cannabis products High-potency cannabis products, with high tetrahydro­cannabinol (THC) content, are more likely to result in harms. Some products contain a higher dose of canna­bidiol (CBD), which counteracts some of THC’s adverse effects. This means that products with high CBD-to-THC ratios reduce some of the risks. Know what you’re using. Ideally, choose cannabis products with lower risk of harms. Don’t use synthetic cannabinoids Compared with natural cannabis products, synthetic cannabis products (e.g., K2 or Spice) can lead to more severe health problems, even death. If you use, give preference to natural cannabis products and abstain from synthetics. Avoid smoking burnt cannabis—choose safer ways of using Smoking burnt cannabis, especially when combined with tobacco, can harm your lungs and respiratory system. Choose other methods, such as vaporizers or edibles instead—but recognize that they also come with some risks. For example, edibles are safer for your lungs, but you may consume larger doses and experience more severe impairment because psychoactive effects are delayed. If you smoke cannabis, avoid harmful smoking practices If you smoke cannabis, avoid “deep inhalation” or “breath-holding.” These practices are meant to increase psychoactive experiences, but they increase the amount of toxic material absorbed by your lungs and into your body. Limit and reduce how often you use cannabis Frequent cannabis use (i.e., daily or almost every day) is strongly linked to a higher risk of health and social problems. Limit yourself—and ideally your friends or others you may be using with—to occasional use, such as on weekends or one day a week at most. Don’t use and drive, or operate other machinery Driving while impaired by cannabis substantially increases your risk of being involved in a motor-vehicle accident resulting in injury or death. Don’t use and drive, or use other machinery. Wait at least six hours after using cannabis—or even longer if you need. Combining cannabis and alcohol further increases impairment, so be sure to avoid this combination if you plan to drive. Avoid cannabis use altogether if you are at risk for mental health problems or are pregnant Some individuals should not use cannabis because of specific risk profiles. If you or an immediate family mem­ber has a history of psychosis or substance use disorder, your risk of cannabis-related mental health problems increases, and you should abstain from use. Pregnant women should not use cannabis because it could harm the fetus or newborn. Avoid combining the risks identified above The more of these risky behaviours you engage in when using cannabis, the higher your risk of harms. For ex­ample, initiating cannabis use at a young age and smok­ing high-potency products every day puts you at much higher risk of both immediate and long-term problems. Avoid combining these high-risk choices. When choosing to use cannabis, you can actively take steps to reduce risks to your health. Below are 10 science-based recommendations for how to do so. These recommendations are aimed mainly at non-medical cannabis use. © 2017 CAMH 5638 / 06-2017

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Canada’s child and youth health charter

https://policybase.cma.ca/en/permalink/policy10327

Last Reviewed
2018-03-03
Date
2007-05-29
Topics
Population health/ health equity/ public health
  1 document  
Policy Type
Policy endorsement
Last Reviewed
2018-03-03
Date
2007-05-29
Topics
Population health/ health equity/ public health
Text
CHILD AND YOUTH HEALTH IN CANADA THEIR CHARTER — OUR CHALLENGE “There can be no keener revelation of a society’s soul than the way it treats its children.” Nelson Mandela “One generation plants the trees; another gets the shade.” Chinese Proverb Children and youth have always been a priority for the doctors of Canada — the Child and Youth Health Initiative of the Canadian Medical Association, the Canadian Paediatric Society and the College of Family Physicians of Canada is evidence of that. We three organizations joined together in November 2006 to launch the Child and Youth Health Initiative. In September 2004, Canada’s first ministers committed to “improving the health status of Canadians through a collaborative process.” This led to an agreement on health goals for Canada. The first of them is “Our children reach their full potential, growing up happy, healthy, confident and secure.” At the international level, the United Nations Convention on the Rights of the Child sets out the wider rights of all children and young people, including the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health. We now owe it to our children and youth to develop tangible health goals and targets. From the outset of the partnership, we were acutely aware that only a broad societal coalition could achieve the overarching goal of excellence in child and youth health in Canada. Making the health of children and youth a national priority requires a coalition of child and youth health champions, including governments, parents, health providers, businesses, schools, teachers and communities. To start that process, we created Canada’s Child and Youth Health Charter. An action framework was then developed called Canada’s Child and Youth Health Challenge because a charter alone will not deliver on the vision of the children and youth of Canada being among the healthiest in the world. Together, we believe they will help to build a coalition of child and youth health champions because they give the people who can make a difference in children and youth health a rallying point. The credibility and success of the Charter and the Challenge require broad, inclusive consultation and a commitment to child and youth health from society at large. The Child and Youth Health Summit, held April 25-26, 2007, was about consultation and commitment to making a difference to the health and well-being of children and youth. This document contains Canada’s Child and Youth Health Charter, which was one of the focuses of the summit. Canada’s Child and Youth Health Challenge and Canada’s Child and Youth Health Declaration, are the other components of our commitment and promise to take action for the children of Canada. These documents can be found at www.ourchildren.ca. Canada’s Child and Youth Health Charter In 2005, Canada’s federal, provincial and territorial governments created pan-Canadian health goals. The first of them is “Canada is a country where: Our children reach their full potential, growing up happy, healthy, confident and secure.” To reach their potential, children and youth need to grow up in a place where they can thrive — spiritually, emotionally, mentally, physically and intellectually — and get high-quality health care when they need it. That place must have three fundamental elements: a safe and secure environment; good health and development; and a full range of health resources available to all. Children and youth of distinct populations in Canada, including First Nations, Inuit and Métis, must be offered equal opportunities as other Canadian children and youth through culturally relevant resources. Canada must become: 1. A place with a safe and secure environment: a) Clean water, air and soil; b) Protection from injury, exploitation and discrimination; and c) Healthy family, homes and communities. 2. A place where children and youth can have good health and development: a) Prenatal and maternal care for the best possible health at birth; b) Nutrition for proper growth, development and long-term health; c) Early learning opportunities and high-quality care, at home and in the community; d) Opportunities and encouragement for physical activity; e) High-quality primary and secondary education; f) Affordable and available post-secondary education; and g) A commitment to social well-being and mental health. 3. A place where a full range of health resources is available: a) Basic health care including immunization, drugs and dental health; b) Mental health care and early help programs for children and youth; c) Timely access to specialty diagnostic and health services; d) Measurement and tracking the health of children and youth; e) Research that focuses on the needs of children and youth; and f) Uninterrupted care as youth move to adult health services and between acute, chronic and community care, as well as between jurisdictions. NOTES 1. The principles of this charter apply to all children and youth in Canada regardless of race, ethnicity, creed, language, gender, physical ability, mental ability, cultural history, or life experience. 2. Principles enshrined in all the goal statements include: a. Universality: The charter applies equally to all children and youth residing in Canada and covers all children and youth from 0-18 years of age. b. Without financial burden: All children and youth in Canada should have access to required health care, health services and drugs regardless of ability to pay. c. Barrier-free access: All children and youth, regardless of ability or circumstance should have appropriate access to optimal health care and health services. d. Measurement and monitoring: Appropriate resources will be available for adequate ongoing collection of data on issues that affect child and youth health and development. e. Safe and secure communities: Communities in Canada must create an environment for children and youth to grow that is safe and secure. 3. The purpose of this charter is to facilitate development of specific goals, objectives, actions and advocacy that will measurably improve child and youth health throughout Canada. 4. Success will be identified as simple, measurable, achievable, and timely goals and objectives for each of the 16 statements in this charter. 5. The initial draft of this charter has been developed by Canada’s physicians focusing on what they can best do to improve child and youth health; however, the support and participation of all individuals and groups interested in child and youth health is encouraged and desired. 6. The primary audience for actions and advocacy arising from this charter will be governments, agencies or individuals who, by virtue of legislation, regulation or policy have the ability to effect change for children and youth. 7. This charter is not a legal document; it represents a commitment by champions of child and youth health in Canada to the health and well-being of all children and youth in Canada. Charter Endorsers The following organizations have endorsed the Child and Youth Health Charter, as of October 9, 2007. Association of Canadian Academic Healthcare Organizations Boys and Girls Clubs of Canada Breakfast for Learning Canadian Association of Paediatric Health Centres Canadian Child and Youth Health Coalition Canadian Healthcare Association Canadian Institute of Child Health Canadian Medical Association Canadian Paediatric Society Canadian Pharmacists Association Canadian Psychological Association Centre of Excellence for Early Childhood Development Centre for Science in the Public Interest College of Family Physicians of Canada Landon Pearson Resource Centre for the Study of Childhood and Children's Rights Muttart Foundation National Alliance for Children and Youth National Anti-Poverty Organization Newfoundland and Labrador Medical Association Paediatric Chairs of Canada Safe Kids Canada, The National Injury Prevention Program of The Hospital for Sick Children Silken's ActiveKids Movement and Silken and Company Productions The Royal College of Physicians and Surgeons of Canada

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Support life-saving supervised consumption and overdose prevention sites: open letter to Premier Doug Ford and Health Minister Christine Elliott

https://policybase.cma.ca/en/permalink/policy13931

Date
2018-08-30
Topics
Pharmaceuticals/ prescribing/ cannabis/ marijuana/ drugs
  1 document  
Policy Type
Policy endorsement
Date
2018-08-30
Topics
Pharmaceuticals/ prescribing/ cannabis/ marijuana/ drugs
Text
Dear Premier Ford and Minister Elliott: We write to you as organizations concerned about the health and welfare of some of the most vulnerable Ontarians, following reports that your government plans to undertake an unnecessary review of the evidence on supervised consumption sites (SCS),1 and the even more troubling announcement that you are imposing a moratorium on the approval of new overdose prevention sites (OPS).2 All the available evidence, including substantial peer-reviewed scientific literature, demonstrates conclusively that these health services save lives and promote the health of people who use drugs. This includes opening doors to treatment. Rather than conduct an unnecessary review and delay expansion of these services, the Ontario government should work with community organizations and health providers to rapidly scale up these services. Delays mean more preventable overdose deaths and new infections of HIV, hepatitis C and other illnesses that could be averted. Multiple reviews of the evidence have already been done, and have established that SCS and OPS:
provide a needed health service, reducing overdose deaths and the sharing of drug-injection equipment (and the associated risk of transmission of blood-borne infections);
increase access to addiction treatment and other necessary health services; and
benefit public order by reducing public injecting.3 As you know, Canada is experiencing a large-scale opioid overdose crisis. In Ontario alone, overdose deaths related to opioids increased by 45 per cent in 2017, with more than three people dying every day during that year.4 The opioid overdose epidemic has been called “the worst drug safety crisis in Canadian history.”5 HIV, hepatitis C and other infections, as well as overdose deaths, are preventable if the right measures are taken. These include increasing voluntary access to treatment for problematic drug use (where Ontario must do better), and also simultaneously scaling up evidence-based harm reduction services such as SCS and OPS. We urge you to heed the recommendations of experts in public health, front-line clinicians, harm reduction staff, and people with lived experience of drug use. Rather than impeding access to life-saving health services, we urge you to work with community organizations and other health services providers to ensure greater, equitable access to SCS and OPS for the people of Ontario. Signed: Aboriginal Legal Services ACAS—Asian Community AIDS Services Action Canada for Sexual Health and Rights Addiction Services of Thames Valley Addictions and Mental Health Ontario Africans in Partnership Against AIDS AIDS Coalition of Nova Scotia AIDS Committee of North Bay and Area AIDS Committee of Toronto AIDS Committee of Windsor AIDS Committee of York Region AIDS Vancouver Island Alliance for Healthier Communities Atlantic Interdisciplinary Research Network on Hepatitis C and HIV Black Coalition for AIDS Prevention Breakaway Addiction Services Broadbent Institute Butterfly (Asian and Migrant Sex Workers Support Network) CACTUS Canadian Aboriginal AIDS Network Canadian AIDS Society Canadian Association of Community Health Centres Canadian HIV/AIDS Legal Network Canadian Medical Association Canadian Mental Health Association—Thunder Bay Branch Canadian Nurses Association Canadian Positive People Network Canadian Public Health Association Canadian Research Initiative on Substance Misuse—Prairie Node Canadian Students for Sensible Drug Policy Canadian Treatment Action Council Casey House CATIE Centre for Addiction and Mental Health (CAMH) Centre for Social Innovation Centre on Drug Policy Evaluation Chinese and Southeast Asian Legal Clinic Community Legal Assistance Sarnia Community Legal Services of Ottawa / Services juridiques communautaires d’Ottawa Community YWCA Muskoka Courage Co-Lab Inc. Direction 180 Dopamine Dr. Peter AIDS Foundation Elevate NWO Elgin-Oxford Legal Clinic Four Counties Addiction Services Team Gerstein Crisis Centre Guelph Community Health Centre Haliburton, Kawartha, Pine Ridge Drug Strategy Halifax Area Network of Drug Using People (HANDUP) Harm Reduction Nurses Association Health Providers Against Poverty HIV & AIDS Legal Clinic Ontario HIV Edmonton HIV/AIDS Regional Services HIV/AIDS Resources and Community Health Houselink Community Homes Housing Action Now! Huron Perth Community Legal Clinic Income Security Advocacy Centre (ISAC) Injured Workers Community Legal Clinic Inner City Health and Wellness Program Interagency Coalition on AIDS and Development (ICAD) Kensington-Bellwoods Community Legal Services Lake Country Community Legal Clinic Lakeside HOPE House Lanark County Interval House L’Anonyme Legal Clinic of Guelph and Wellington County Maggie’s Toronto Sexwork Action Project Maison Fraternité Mission Services of Hamilton Inc. Mississauga Community Legal Services MODIFY: Drug Insight From Youth Moms Stop the Harm mumsDU - moms united and mandated to saving the lives of Drug Users Native Youth Sexual Health Network Neighbourhood Legal Services London & Middlesex Nipissing Community Legal Clinic OHIP for All Ontario AIDS Network (OAN) Ontario Nurses’ Association Ontario Positive Asians (OPA+) Ottawa Salus Overdose Prevention Ottawa Parkdale Activity Recreation Centre Parkdale Community Legal Services Parkdale Queen West Community Health Centre PASAN PHS Community Services Society Planned Parenthood Toronto Queer Ontario Racial Health Equity Network Realize Reelout Arts Project Regent Park Community Health Centre Regional HIV/AIDS Connection Registered Nurses’ Association of Ontario (RNAO) Rideauwood Addiction and Family Services Sandy Hill Community Health Centre South Riverdale Community Health Centre Stonegate Community Health Centre Street Health Students for Sensible Drug Policy, Ryerson Chapter Superior North Emergency Medical Service Syme Woolner Neighbourhood and Family Centre Tanner Steffler Foundation The AIDS Committee of Cambridge, Kitchener, Waterloo and Area The Children’s Aid Society of the District of Thunder Bay The Interfaith Coalition to Fight Homelessness The Mental Health Consumer Survivor Project for Simcoe County Thunder Bay Catholic District School Board Thunder Bay Drug Strategy Timmins-Temiskaming Community Legal Clinic Toronto Overdose Prevention Society Toronto People With AIDS Foundation Waterloo Region Community Legal Services WellFort Community Health Services West Neighbourhood House West Toronto Community Legal Services Women & HIV/AIDS Initiative, Ontario YW Kitchener–Waterloo YWCA Hamilton YWCA Niagara Region YWCA Toronto Endnotes 1 F. Merali, “PCs ‘playing politics with people’s lives’ on injection sites, drug policy expert warns,” CBC News, August 4, 2018. Available at: www.cbc.ca/news/canada/toronto/supervised-injection-sites-waiting-1.4771143. 2 K. Bueckert, “Ontario puts new overdose prevention sites approvals on hold,” CBC News, August 11, 2018. Available at: www.cbc.ca/news/canada/kitchener-waterloo/ontario-overdose-prevention-sites-approval-hold-1.4782132. 3 E.g., M. Kennedy, M. Karamouzian & T. Kerr. “Public Health and Public Order Outcomes Associated with Supervised Drug Consumption Facilities: A Systematic Review,” Current HIV/AIDS Reports, 2017; 14(5): 161-183, doi: 10.1007/s11904-017-0363-y. Available at: www.salledeconsommation.fr/_media/public-health-and-public-order-outcomes-associated-with-supervised-drug-consumption-facilities-a-systematic-review.pdf. 4 Public Health Ontario, “Opioid-related morbidity and mortality in Ontario,” May 23, 2018. Available at: www.publichealthontario.ca/en/dataandanalytics/pages/opioid.aspx#/trends. 5 Municipal Drug Strategy Coordinators’ Network of Ontario, “Opioid Epidemic: Call for Urgent Action That Can Save Lives Now,” December 9, 2015.

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Open letter to Ontario Minister of Health about the newly proposed “Consumption and Treatment Services” model

https://policybase.cma.ca/en/permalink/policy13932

Date
2018-10-31
Topics
Population health/ health equity/ public health
  1 document  
Policy Type
Policy endorsement
Date
2018-10-31
Topics
Population health/ health equity/ public health
Text
Dear Minister Elliott: We write to you as organizations concerned about the health and welfare of some of the most vulnerable Ontarians, in response to the October 22 announcement that your government plans to replace supervised consumption sites (SCS) and low-barrier overdose prevention sites (OPS) with “Consumption and Treatment Services.”1 While we welcome the stated commitment to maintain existing SCS and OPS in Ontario, we are deeply concerned that your government’s new approach to supervised consumption services is creating more barriers instead of facilitating the rapid-scale up of a diversity of much-needed supervised consumption services across the province. This is especially troubling in the context of the public health crisis in which we now find ourselves. In particular, we are concerned by the decision to impose one “Consumption and Treatment Services” model on service providers and essentially terminate low-threshold, flexible OPS. These life-saving services are part of a continuum of service models that should be made available to all people who use drugs who need them, including the most marginalized. Thousands of overdoses have been reversed using this model, and no deaths recorded at these sites. As you know, OPS were created in response to the urgent need for rapid roll-out of these vital services. A specific legal regime under a federal class exemption issued to Ontario was put in place to allow for their rapid implementation in response to the current crisis. The requirement for both OPS and SCS, including already authorized ones, to undergo a new application process for funding is sapping concerted efforts from the federal and provincial governments to respond to the overdose crisis. Not only does the new application process replicate the onerous federal exemption process for SCS (such as requiring applicants to engage in ongoing community consultations), it will also impose additional requirements including requiring applicants to provide treatment and rehabilitation services and to conduct seemingly more extensive data reporting, monitoring and evaluations — all without dedicating additional funding to allow organizations to adequately comply. Moreover, the requirement for service providers to provide treatment and rehabilitation services is not in line with harm reduction values of meeting people where they are. At the same time, the arbitrary decision to cap the number of sites at 21 without any justification means people who do not reside near existing or impending sites will be denied access to life-saving care, at a time when overdose deaths in Ontario are at an all-time high, with more than three people dying every day in 2017.2 Denying funding to new sites will undoubtedly mean more preventable overdose deaths and new HIV, hepatitis C and other infections. We agree that there are inadequate drug treatment, mental health services and supportive housing options available for people who use drugs, and providing greater support for these services is laudable. But this should not come at the expense of life-saving supervised consumption services, including low-threshold services that are varied, responsive and meet the needs of their communities. We urge you to reconsider the decision to create new hurdles for service providers to receive funding to provide supervised consumption services and to limit the number of sites to 21. We call on you to work with people who use drugs, community organizations and other health service providers to ensure greater, equitable access to SCS and OPS for the people of Ontario. Lives are at stake. Sincerely, Richard Elliott, Executive Director, Canadian HIV/AIDS Legal Network Ryan Peck, Executive Director, HIV & AIDS Legal Clinic Ontario Dr. F. Gigi Osler, President, Canadian Medical Association Michael Villeneuve, Chief Executive Officer, Canadian Nurses Association Ian Culbert, Executive Director, Canadian Public Health Association Sarah Ovens, Coordinator, Toronto Overdose Prevention Society Cc. The Honourable Doug Ford, Premier of Ontario 1 Ministry of Health and Long-Term Care News Release: Ontario Government Connecting People with Addictions to Treatment and Rehabilitation, October 22, 2018, online: https://news.ontario.ca/mohltc/en/2018/10/ontario-government-connecting-people-with-addictions-to-treatment-and-rehabilitation.html. 2 Public Health Ontario, “Opioid-related morbidity and mortality in Ontario” (May 23, 2018), online: https://www.publichealthontario.ca/en/dataandanalytics/pages/opioid.aspx#/trends.

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Health Care Coverage for Migrants: An Open Letter to the Canadian Federal Government

https://policybase.cma.ca/en/permalink/policy13940

Date
2018-12-15
Topics
Population health/ health equity/ public health
Health systems, system funding and performance
Ethics and medical professionalism
  1 document  
Policy Type
Policy endorsement
Date
2018-12-15
Topics
Population health/ health equity/ public health
Health systems, system funding and performance
Ethics and medical professionalism
Text
Dear Prime Minister Trudeau & Ministers Taylor and Hussen, We are writing to you today as members of the health community to urge your action on a crucial matter pertaining to health and human rights. You will no doubt be aware that the United Nations Human Rights Committee (UNHRC) recently issued a landmark decision condemning Canada for denying access to essential health care on the basis of immigration status based on the case of Nell Toussaint. Nell is a 49-year-old woman from Grenada who has been living in Canada since 1999, and who suffered significant negative health consequences as a result of being denied access to essential health care services. The UNHRC’s decision condemns Canada’s existing discriminatory policies, and finds Canada to be in violation of both the right to life, as well as the right to equality and freedom from discrimination. Based on its review of the International Covenant on Civil and Political Rights, the UNHRC has declared that Canada must provide Nell with adequate compensation for the significant harm she suffered. As well, they have called on Canada to report on its review of national legislation within a 180-day period, in order “to ensure that irregular migrants have access to essential health care to prevent a reasonably foreseeable risk that can result in loss of life”. The United Nations Special Rapporteur has pushed for the same, calling on the government “to protect health-related rights to life, security of the person, and equality of individuals and groups in situations of vulnerability”. Nell is one of an estimated half million people in Ontario alone who are denied access to health coverage and care on the basis of their immigration status, putting their health at risk. As members of Canada’s health community, we are appalled by the details of this case as well as its broad implications, and call on the government to: 1. Comply with the UNHRC’s order to review existing laws and policies regarding health care coverage for irregular migrants. 2. Ensure appropriate resource allocation, so that all people in Canada are provided universal and equitable access to health care services, regardless of immigration status. 3. Provide Nell Toussaint with adequate compensation for the significant harm she has suffered as a result of not receiving essential health care services. For more information on this issue, please see our backgrounder here: https://goo.gl/V9vPyo. Sincerely, Arnav Agarwal, MD, Internal Medicine Resident, University of Toronto, Toronto ON Nisha Kansal, BHSc, MD Candidate, McMaster University, Hamilton ON Michaela Beder, MD, Psychiatrist, Toronto ON Ritika Goel, MD, Family Physician, Toronto ON This open letter is signed by the following organizations and individuals: Bathurst United Church TOPS 1. Arnav Agarwal, MD, Internal Medicine Resident, University of Toronto, Toronto ON 2. Nisha Kansal, BHSc, MD Candidate, McMaster University, Hamilton ON 3. Michaela Beder, MD FRCPC, Psychiatrist, Toronto ON 4. Ritika Goel, MD, Family Physician, Toronto ON 5. Gordon Guyatt, MD FRCPC, Internal Medicine Specialist, McMaster University, Hamilton ON 6. Melanie Spence, RN, Nursing, South Riverdale Community Health Centre, Toronto ON 7. Yipeng Ge, BHSc, Medical Student, University of Ottawa, Ottawa ON 8. Stephen Hwang, MD, Professor of Medicine, University of Toronto, Toronto ON 9. Gigi Osler, BScMed, MD, FRCSC, Otolaryngology-Head and Neck Surgery, Canadian Medical Association, Ottawa ON 10. Anjum Sultana, MPH, Public Policy Professional, Toronto ON 11. Danyaal Raza, MD, MPH, CCFP, Family Medicine, Toronto ON 12. P.J. Devereaux, MD, PhD, Cardiologist, McMaster University, Brantford ON 13. Mathura Karunanithy, MA, Public Policy Researcher, Toronto ON 14. Philip Berger, MD, Family Physician, Toronto ON 15. Nanky Rai, MD MPH, Primary Care Physician, Toronto ON 16. Michaela Hynie, Prof, Researcher, York University, Toronto ON 17. Meb Rashid, MD CCFP FCFP, Family Physician, Toronto ON 18. Sally Lin, MPH, Public Health, Victoria BC 19. Jonathon Herriot, BSc, MD, CCFP, Family Physician, Toronto ON 20. Carolina Jimenez, RN, MPH, Nurse, Toronto ON 21. Rushil Chaudhary, BHSc, Medical Student, Toronto ON 22. Nisha Toomey, MA (Ed), PhD Student, University of Toronto, Toronto ON 23. Matei Stoian, BSc, BA, Medical Student, McMaster University, Hamilton ON 24. Ruth Chiu, MD, Family Medicine Resident, Kingston ON 25. Priya Gupta, Medical Student, Hamilton ON 26. The Neighbourhood Organization (TNO), Toronto, ON 27. Mohammad Asadi-Lari, MD/PhD Candidate, University of Toronto, Toronto ON 28. Kathleen Hughes, MD Candidate, McMaster University, Hamilton ON 29. Nancy Vu, MPA, Medical Student, McMaster University, Hamilton ON 30. Ananthavalli Kumarappah, MD, Family Medicine Resident, University of Calgary, Calgary AB 31. Renee Sharma, MSc, Medical Student, University of Toronto, Toronto ON 32. Daniel Voloshin, Medical Student , McMaster Medical School , Hamilton ON 33. Sureka Pavalagantharajah, Medical Student, McMaster University, Hamilton ON 34. Alice Cavanagh , MD/PhD Student, McMaster University, Hamilton ON 35. Krish Bilimoria, MD(c), Medical Student, University of Toronto, North York ON 36. Bilal Bagha, HBSc, Medical Student, St. Catharines ON 37. Rana Kamhawy, Medical Student, Hamilton ON 38. Annie Yu, Medical Student, Toronto ON 39. Samantha Rossi, MA, Medical Student, University of Toronto, Toronto ON 40. Carlos Chan, MD Candidate, Medical Student, McMaster University, St Catharines ON 41. Jacqueline Vincent, MA, Medical Student, McMaster, Kitchener ON 42. Eliza Pope, BHSc, Medical Student, University of Toronto, Toronto ON 43. Cara Elliott, MD, Medical Student, Toronto ON 44. Antu Hossain, MPH, Public Health Professional, East York ON 45. Lyubov Lytvyn, MSc, PhD Student in Health Research, McMaster University, Burlington ON 46. Michelle Cohen, MD, CCFP, Family Physician, Brighton ON 47. Serena Arora, Medical Student, Hamilton ON 48. Saadia Sediqzadah, MD, Psychiatrist, Toronto ON 49. Maxwell Tran, Medical Student, University of Toronto, Toronto ON 50. Asia van Buuren, BSc, Medical Student, Toronto ON 51. Darby Little, Medical Student, University of Toronto, Toronto ON 52. Ximena Avila Monroy, MD MSc, Psychiatry Resident, Sherbrooke QC 53. Abeer Majeed, MD, CCFP, Family Physician, Toronto ON 54. Oluwatobi Olaiya, RN, Medical Student, Hamilton ON 55. Ashley Warnock, MSc, HBSc, HBA, Medical Student, McMaster University, Hamilton ON 56. Nikhita Singhal, Medical Student, Hamilton ON 57. Nikki Shah, MD Candidate, Medical Student, Hamilton ON 58. Karishma Ramjee, MD Family Medicine Resident , Scarborough ON 59. Yan Zhang, MSc, Global Health Professional, Toronto ON 60. Megan Saunders, MD, Family Physician, Toronto ON 61. Pooja Gandhi, MSc, Speech Pathologist, Mississauga ON 62. Julianna Deutscher, MD, Resident, Toronto ON 63. Diana Da Silva, MSW, Social Worker, Toronto ON Health Care Coverage for Migrants: An Open Letter to the Canadian Federal Government Sign here - https://goo.gl/forms/wAXTJE6YiqUFSo8x1 The Right Honourable Justin Trudeau, Prime Minister of Canada The Honourable Ginette P. Taylor, Minister of Health The Honourable Ahmed D. Hussen, Minister of Immigration, Refugees and Citizenship CC: Mr. Dainius Puras, United Nations Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of health Dear Prime Minister Trudeau & Ministers Taylor and Hussen, We are writing to you today as members of the health community to urge your action on a crucial matter pertaining to health and human rights. You will no doubt be aware that the United Nations Human Rights Committee (UNHRC) recently issued a landmark decision condemning Canada for denying access to essential health care on the basis of immigration status based on the case of Nell Toussaint. Nell is a 49-year-old woman from Grenada who has been living in Canada since 1999, and who suffered significant negative health consequences as a result of being denied access to essential health care services. The UNHRC’s decision condemns Canada’s existing discriminatory policies, and finds Canada to be in violation of both the right to life, as well as the right to equality and freedom from discrimination. Based on its review of the International Covenant on Civil and Political Rights, the UNHRC has declared that Canada must provide Nell with adequate compensation for the significant harm she suffered. As well, they have called on Canada to report on its review of national legislation within a 180-day period, in order “to ensure that irregular migrants have access to essential health care to prevent a reasonably foreseeable risk that can result in loss of life”. The United Nations Special Rapporteur has pushed for the same, calling on the government “to protect health-related rights to life, security of the person, and equality of individuals and groups in situations of vulnerability”. Nell is one of an estimated half million people in Ontario alone who are denied access to health coverage and care on the basis of their immigration status, putting their health at risk. As members of Canada’s health community, we are appalled by the details of this case as well as its broad implications, and call on the government to: 1. Comply with the UNHRC’s order to review existing laws and policies regarding health care coverage for irregular migrants. 2. Ensure appropriate resource allocation, so that all people in Canada are provided universal and equitable access to health care services, regardless of immigration status. 3. Provide Nell Toussaint with adequate compensation for the significant harm she has suffered as a result of not receiving essential health care services. For more information on this issue, please see our backgrounder here: https://goo.gl/V9vPyo. Sincerely, Arnav Agarwal, MD, Internal Medicine Resident, University of Toronto, Toronto ON Nisha Kansal, BHSc, MD Candidate, McMaster University, Hamilton ON Michaela Beder, MD, Psychiatrist, Toronto ON Ritika Goel, MD, Family Physician, Toronto ON

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A new vision for Canada: family practice— the patient’s medical home 2019

https://policybase.cma.ca/en/permalink/policy14024

Date
2019-03-02
Topics
Physician practice/ compensation/ forms
Health systems, system funding and performance
  1 document  
Policy Type
Policy endorsement
Date
2019-03-02
Topics
Physician practice/ compensation/ forms
Health systems, system funding and performance
Text
The evolving needs of patients and their communities place ever-changing demands on the health care system to maintain and improve the quality of services provided. Changing population demographics, increasing complexity, and new technology make for a dynamic system. Family physicians are at the heart of the health care system, acting as the first point of contact and a reliable medical resource to the communities they serve, caring for patients and supporting them throughout all interactions with the health care system. The Patient’s Medical Home (PMH) is a vision that emphasizes the role of the family practice and family physicians in providing high-quality, compassionate, and timely care. The success of a PMH depends on collaboration and teamwork—from the patient’s participation in their care to interprofessional and intraprofessional care providers working together, to policy-makers who can offer infrastructure support and funding. PMH 2019 was created with invaluable feedback from a broad range of stakeholders reflective of such a joint approach. Its goal is to make the PMH a reality for patients and providers across Canada. In 2011 the College of Family Physicians of Canada (CFPC) released A Vision for Canada: Family Practice - The Patient’s Medical Home.1 It outlined a vision for the future of primary care by transforming the health care system to better meet the needs of everyone living in Canada. The vision outlined the 10 pillars that make up the PMH and provided detailed recommendations to assist family physicians and their teams, as well as policy-makers and health care system administrators, to implement this new model across the country. WHY A REVISED PMH? Since 2011 many principles of the PMH vision have been embraced in primary care reforms. New models have been introduced across Canada (see Progress on the PMH to Date). To better reflect current realties, meet the evolving needs of family physicians and their teams, and support continued implementation of the PMH, the CFPC has developed this revised edition of the vision. It reflects evolving realities of primary care in Canada, including the rapid adoption of electronic medical records (EMRs)2,3 and a shift toward interprofessional practice structures.2 While progress has been made, there is still work to be done to fully achieve the PMH vision. In 2016 almost 75 per cent of Canadians rated the quality of care received from their family physicians as good or excellent.4 In 2017 a CFPC survey found that 79 per cent of respondents rate the care they receive from their family doctor as excellent or good.5 However, at the same time 55 per cent of Canadians also believed that the overall health care system still required fundamental changes.4 In addition, Canada continues to perform below the international average on certain aspects of patient-centred care; for example, same- or next-day access to appointments. While most Canadians (84.7 per cent) have a regular doctor or place of care, they generally report longer wait times for medical care than adults in comparable countries.4 PMH 2019 addresses these concerns and proposes solutions that can help further improve the primary care system for all. Although the specific components of the revised PMH have been updated (see What is the Patient’s Medical Home?), the core principles remain the same. PMH 2019 focuses on providing high-quality, patient-centred, and comprehensive care to patients and their families during their lifetime. It embraces the critical role that family physicians and family practices play in the health care system, reflecting the fact that systems with strong primary health care deliver better health outcomes, enhance efficiency, and improve quality of care.6 PMH 2019 recognizes that a patient will not be able to see their personal family physician at every visit, but can rely on the PMH’s qualified team of health professionals to provide the most appropriate care responding to patient needs with continuous support and leadership from family physicians. PMH 2019 highlights the central importance of community adaptiveness and social accountability in primary care with a new pillar. The importance of being responsive to community needs through engagement, and ensuring the provision of equitable, culturally safe, antioppressive practise that seeks to assess and intervene into social determinants of health (SDoH), is now more clearly featured. 2 A NEW VISION FOR CANADA Family Practice— The Patient’s Medical Home 2019 PURPOSE OF THIS DOCUMENT PMH 2019 outlines 10 revised pillars that make up a PMH. Key attributes are defined and explained for each pillar. Supporting research is provided to demonstrate the evidence base for each attribute. This document is intended to support family physicians currently working in a PMH to better align their practice with the PMH pillars, or assist those practices looking to transition to a PMH. Furthermore, this document can guide governments, policy-makers, other health care professionals, and patients on how to structure a primary health care system that is best-suited to meet the needs of Canadians. Many resources for the PMH have been developed and will continue to be available. These include practical Best Advice guides on a range of topics and the self-assessment tool that can help quantify a practice’s progress toward PMH alignment. Moving forward, additional materials that address the new themes identified in PMH 2019 and the tools to support physicians in the transition to PMH structures—for example the PMH Implementation Kit— will be available at patientsmedicalhome.ca. What is a Patient’s Medical Home? The PMH is a family practice defined by its patients as the place they feel most comfortable presenting and discussing their personal and family health and medical concerns. The PMH can be broken down into three themes: Foundations, Functions, and Ongoing Development (see Table 1 and Figure 1). The three Foundation pillars are the supporting structures that facilitate the care provided by the PMH. All three aspects are required for the successful implementation and sustainability of a PMH. The Functions are areas central to the operation of a family practice and consist of the five core PMH pillars. These principles govern the type of care provided by the PMH practices to ensure it is effective and efficient for meeting the needs of the patients, families, and communities they serve. The pillars in this section reflect the Four Principles of Family Medicine,7 which underlines the important place they take in the overall PMH 2019. The pillars in Ongoing Development are essential to advancing the PMH vision. These areas make it possible for physicians to provide the best possible care for patients in various settings. Applying these pillars, the PMH will thrive through practising quality improvement (QI) principles to achieve the results necessary to meet the needs of their patients, their communities, and the broader health care community, now and in the future. The PMH is a vision to which every practice can aspire. Many practices across Canada have already begun transitioning to a PMH, thanks to the dedication and leadership of family physicians and their teams across Table 1. 10 Pillars of the revised PMH vision THEME PILLAR Foundations 1. Administration and Funding 2. Appropriate Infrastructure 3. Connected Care Functions 4. Accessible Care 5. Community Adaptiveness and Social Accountability 6. Comprehensive Team-Based Care with Family Physician Leadership 7. Continuity of Care 8. Patient- and Family-Partnered Care Ongoing Development 9. Measurement, Continuous Quality Improvement, and Research 10. Training, Education, and Continuing Professional Development A NEW VISION FOR CANADA Family Practice— The Patient’s Medical Home 2019 3 the country. This vision is a resource for these practices as they engage in ongoing practice assessment and QI initiatives. It can also assist other stakeholders, including government planners, policy-makers, and funders to better understand what defines an effective patientcentred family practice. By involving patients in all stages of the development, evaluation, and continuous quality improvement (CQI) activities of the practice, the PMH can contribute significantly to furthering the goals of transformation to a patient-centred health care system.8 What the Patient’s Medical Home is Not While it is important to understand what the PMH aspires to be, it is also important to highlight that it is not a one-size-fits-all solution. Solo practices in rural or remote settings or large group practices serving inner-city populations can align with PMH principles by incorporating strategies that match the realities of their unique settings. In fact, social accountability and community adaptiveness is an important new addition to the revised PMH vision to account for the need of every family practice to adapt and respond to the needs of their patients and communities. What works for one practice will not work for all. The PMH vision does not require that all practices be relocated or re-engineered, or that significant financial investments be made by physicians or other health care professionals. Instead, system level support and involvement is required to achieve the vision. The pillars and attributes listed in this document are signposts along the way to reform that aids practices on their journey. It is important to note that this vision is not intended to undermine or change any exciting initiatives involving family practice currently under way across Canada (several of which already embrace and incorporate the medical home concept; see Progress on the PMH to Date). Rather, it is meant to build on and strengthen these efforts. The more that health care initiatives meet PMH objectives, the more likely it is that the overall goals of creating a patient-centred health care system throughout Canada will be realized. Figure 1. The Patient’s Medical Home 4 A NEW VISION FOR CANADA Family Practice— The Patient’s Medical Home 2019 PROGRESS ON THE PMH TO DATE Since the release of the original PMH vision document, system-level change has occurred in almost all jurisdictions in Canada. More specifically, PMH-type practices are gaining traction in various provinces and currently exist in various stages of development. The CFPC took a snapshot of PMH uptake in all provinces in the PMH Provincial Report Card, published in early 2019.9 That report contains grades and descriptions for progress in each province up to late 2018, which acts as a useful gauge for where the vision stands at the time of publication of this new edition. Alberta In Alberta, primary care networks (PCNs)10 were established to link groups of family physicians and other health care professionals. Within PCNs clinicians work together to provide care specific to community and population health care needs. Currently, there are 42 PCNs operating in Alberta, comprised of more than 3,700 (or 80 per cent of) family physicians, and over 1,100 other health care practitioners. PCNs provide care to close to 3.6 million Albertans, 80 per cent of the population in Alberta. Primary care clinics are being asked to collect data for Third Next Available (TNA) appointments to improve access for Albertans.11 TNA measures the delay patients experience in accessing their providers for a scheduled appointment. TNA is considered a more accurate system measure of access than the “next available” appointment, since the next or second next available appointment may have become available due to a cancellation or other event that is not predictable or reliable. British Columbia The British Columbia government’s new primary care strategy focuses on expanding access to team-based care through PCNs.12 PCNs are in the initial stages of adoption and when fully rolled out will provide a systemlevel change—working to connect various providers to improve access to, and quality of, care. They will allow patients to access the full range of health care options, streamline referrals, and provide better support to family physicians, nurse practitioners, and other primary health care providers. The General Practice Services Committee13 (GPSC; a partnership of the provincial government and Doctors of BC) specifically references and builds on the PMH concept in their vision for the future of British Columbia’s health care system. Manitoba In Manitoba, PMHs are Home Clinics and PCNs are My Health Teams. My Health Teams bring together teams of health care providers (physicians, nurses, nurse practitioners, etc.) to collaborate in providing highquality care based on community and patient needs.14 As suggested by the name of the initiative itself, the goal is to improve health care by developing teams of health care professionals who will work together to address primary health care needs of Manitobans.15 The first two My Health Teams were established in 2014, and there are now 15 across the province.16 The Manitoba Centre for Health Policy did some work assessing the impact of My Health Teams. New Brunswick In 2017 the government announced the New Brunswick Family Plan, which placed a specific emphasis on access to team-based care. To achieve this goal, the provincial government and the New Brunswick Medical Society established a voluntary program called Family Medicine New Brunswick. In this team-based model, physicians have their own rosters of patients, but also provide a service to all patients of doctors on their team.17 It was announced in 2018 that 25 family physicians will be added to the provincial health care system to ensure more New Brunswick residents have access to a primary care physician and to help reduce wait times.18 Newfoundland and Labrador In 2015 the Newfoundland and Labrador government released Healthy People, Healthy Families, Healthy Communities: A primary health care framework for Newfoundland and Labrador. The strategy’s goals include ensuring “timely access to comprehensive, person-focused primary health care services and supports,” and “primary health care reform should work to establish teams of providers that facilitate access to a range of health and social services tailored to meet A NEW VISION FOR CANADA Family Practice— The Patient’s Medical Home 2019 5 the needs of the communities they serve.”19 Both goals align with the general PMH principles. Primary health care teams have been introduced in St. John’s and are planned for Corner Brook and Burin.20 Many initiatives under way as a part of this strategy are in the early stages of development. Continuing in the direction laid out will move Newfoundland and Labrador closer to integrating the PMH vision in their delivery of primary health care. Northwest Territories The recent creation of a single Territorial Health Authority has enabled work on primary care improvements across the Northwest Territories. In August 2018 the NWT Health and Social Services Leadership Council unanimously voted in favour of a resolution supporting redesigning the health care system toward a team- and relationshipbased approach, consistent with PMH values. In several regions, contracted physicians are already assigned to regularly visit remote communities and work closely with local staff to provide continuity of remote support between visits. Planning is under way for implementing PMH-based multidisciplinary care teams in several larger regional centres, with enhanced continuity and access to physician and nursing staff as well as co-located mental health support and other health care disciplines. This work is facilitated by a territory-wide EMR and increased use of telehealth and other modalities of virtual care. Nova Scotia The 2017 Strengthening the Primary Health Care System in Nova Scotia report recommended establishing “health homes,” consisting of interprofessional, collaborative family practice teams. The model is based on a population health approach that focuses on wellness and chronic disease management/prevention and incorporates comprehensive, team-based care. There are approximately 50 collaborative family practice21 teams and a number of primary care teams across Nova Scotia. Ontario The model most aligned with the PMH framework is the family health team (FHT).22 FHTs are comprised of family physicians, nurse practitioners, and other health care professionals, and provide community-centred primary care programs and services. The 184 FHTs collectively serve over three million enrolled Ontarians. Based on the results of a five-year evaluation undertaken by the Conference Board of Canada in 2014, FHTs have achieved improvements at the organizational and service-delivery levels.23 Much progress has also been made through patient enrolment models. Patient enrolment, or rostering, is a process in which patients are formally registered with a primary care provider or team. Patient enrolment facilitates accountability by defining the population for which the provider is responsible. Formal patient enrolment with a primary care physician lays the foundation for a proactive approach to chronic disease management and preventive care.24 Studies show that the models have achieved some degree of success in enhancing health system efficiency in Ontario through the reducing use of emergency departments for non-emergent care.25 Prince Edward Island In Prince Edward Island, primary care is provided through five PCNs.26 Each network consists of a team that includes family physicians, nurse practitioners, registered nurses, diabetes educators, licensed practical nurses, clerical staff, and in some cases dietitians and mental health workers. They offer a broad range of health services including diagnosis, treatment, education, disease prevention, and screening. Quebec The Groupes de médecine de famille27 (GMF) is the team-based care model in Quebec most closely aligned with the PMH. GMF ranking (obligations, financial, and professional supports) is based on weighted patient rostering. One GMF may serve from 6,000 to more than 30,000 patients. The resource allocation (financial and health care professionals) depends on the weighted patient target under which the GMF falls. In a GMF, each doctor takes care of their own registered patients, but all physicians in the GMF can access medical records of all patients. GMFs provide team-based care with physicians, nurses, social workers, and other health care professionals working collaboratively to provide appropriate health care based on community needs. Saskatchewan Saskatchewan has made investments in a Connected Care Strategy, which focuses on a team approach to care that includes the patient and family, and extends from the community to the hospital and back again. It is about connecting teams and providing seamless care for people who have multiple, ongoing health care needs, with a particular focus on care in the community.28 6 A NEW VISION FOR CANADA Family Practice— The Patient’s Medical Home 2019 FOUNDATIONS PMH foundations are the underlying, supporting structures that enable a practice to exist, and facilitate providing each PMH function. Without a strong foundation, the PMH cannot successfully provide high-quality, patient-centred care. The foundations are Administration and Funding (includes financial and governmental support and strong governance, leadership, and management), Appropriate Infrastructure (includes physical space, human resources, and electronic records and other digital supports), and Connected Care (practice integration with other care settings enabled by health IT). ADMINISTRATION & FUNDING PAGE 7 APPROPRIATE INFRASTRUCTURE PAGE 9 CONNECTED CARE PAGE 12 Patients as partners in health care Patient-centred or patient-partnered? Understanding and acknowledging patients as full partners in their own care is a small but powerful change in terminology. Considering and respecting patients as partners allows health care providers to better recognize and include the skills and experience each patient brings to the table. Patient perspectives and feedback can be more inclusively incorporated in the QI processes in place to improve care delivery. Understanding the nature of patient partnerships can help physicians better establish trusting relationships with those in their care.29 Pillar 1: Administration and Funding Practice governance and management Effective practice governance is essential to ensuring an integrated process of planning, coordinating, implementing, and evaluating.30 Every PMH should clearly define its governance and administrative structure and functions, and identify staff responsible for each function. While the complexity of these systems varies depending on the practice size, the number of members on the health care professional team, and the needs of the population being served, every PMH should have an organizational plan in place that helps guide the practice operations. From a governance perspective, policies and procedures should be developed and regularly reviewed and updated, especially in larger practices. These policies and procedures will offer guidance in areas such as organization of clinical services, appointment and booking systems, information management, facilities, equipment and supplies, human resources, defining PMH team members’ clinical and administrative/management roles and responsibilities, budget and finances, legal and liability issues, patient and provider safety, and CQI. In some cases, standardized defaults for these may be available based on the province of practice and existing structures supporting interprofessional teams. Structures and systems need to be in place that allow for compensated time for providers to undertake and actively participate in CQI activities. This needs to be scheduled and remunerated so that it is seen as being as important and critical as clinical time. To ensure that all PMH team members have the capacity to take on their required roles, leadership development programs should be offered. Enabling physicians to engage in this necessary professional development requires sufficient government funding to cover training A NEW VISION FOR CANADA Family Practice— The Patient’s Medical Home 2019 7 Practices need staff and financial support, advocacy, governance, leadership, and management in order to function as part of the community and deliver exceptional care. 1.1 Governance, administrative, and management roles and responsibilities are clearly defined and supported in each PMH. 1.2 Sufficient system funding is available to support PMHs, including the clinical, teaching, research, and administrative roles of all members of PMH teams. 1.3 Blended remuneration models that best support team-based, patient-partnered care in a PMH should be considered to incentivize the desired approach. 1.4 Future federal/provincial/territorial health care funding agreements provide appropriate funding mechanisms that support PMH priorities, including preventive care, population health, electronic records, community-based care, and access to medications, social services, and appropriate specialist and acute care. 8 A NEW VISION FOR CANADA Family Practice— The Patient’s Medical Home 2019 costs and financial support to ensure lost income is not a barrier (see Pillar 10: Training, Education, and Continuing Professional Development). External supports Every family practice in Canada can become a PMH and an optimal learning environment will only be achievable with the participation and support of all stakeholders throughout the health care system. This includes family physicians; other health professionals who will play critical roles on PMH teams; federal, provincial, and territorial governments; academic training programs; governing bodies for physicians and allied health care providers; and most importantly, the people of Canada themselves, individually and in their communities—the recipients of care provided by the PMH. To achieve their objectives, PMHs need the support of governments across Canada through the provision of adequate funding and other resources. Given that the structure, composition, and organization of each PMH will differ based on community and population needs, funding must be flexible. More specifically, PMH practices will differ in terms of the staff they require (clinical, administrative, etc.). Funding must be available to ensure that PMH practices can determine optimal staffing levels and needs, to best meet community needs. The health care system must also ensure that all health care professionals on the PMH team have appropriate liability protection, and that adequate resources are provided to ensure that each PMH practice can provide an optimal setting for teaching students and residents and for conducting practice-based research. These characteristics are also reflected in the Four Principles of Family Medicine, reinforcing the centrality of family medicine to the delivery of care. Experience through new models of family practice, such as patient enrolment models (PEMs) in Ontario, suggests that blended funding models are emerging as the preferred approach to paying family physicians.31–33 These models are best suited to incentivizing teambased, patient-partnered care. The current fee-forservice (FFS) model incentivizes a series of short consultations that might be insufficient to address all of the patient’s needs, while blended remuneration provides for groups of physicians to work together to provide comprehensive care through office hours and after-hours care for their rostered patients. Capitation allows for more in-depth consultations depending on population need, rather than a volume-based model. Research has also found that blended capitation models can lead to small improvements in processes of care (e.g., meeting preventive care quality targets)34 and can be especially useful for supporting patients in managing and preventing chronic diseases.35 The CFPC advocates for governments to implement blended payment mechanisms across the country to achieve better health outcomes (see the Best Advice guide: Physician Remuneration in a Patient’s Medical Home36 for more information). It is important to ensure that additional practice activities such as leadership development, QI, and teaching are supported through dedicated funding or protected time intended specifically for these activities and are not seen as financially disadvantageous. The sustainability of Canada’s health care system depends on a foundation of strong primary care and family practice.37 Indeed, “high-performing primary care is widely recognized as the foundation of an effective and efficient health care system.”38 Future funding for health care—in particular from the federal government through federal, provincial, and territorial agreements—must be sustained through appropriate and well-designed funding agreements that incentivize PMH visions of primary care; other medical home priorities including preventive care, population health, EMRs; communitybased care; along with access to medications, social services, and appropriate specialist and acute care. For the PMH vision to be successful and a part of the future of family practice care in Canada, we need the commitment and support of everyone in the Canadian health care system, including decision makers and patients. By working with all levels of government and with patients, we can improve the health care system so that everyone in Canada has access to patient-centred, comprehensive, team-based care. A NEW VISION FOR CANADA Family Practice— The Patient’s Medical Home 2019 9 Pillar 2: Appropriate Infrastructure The shift in Canada from paper-based patient records to EMRs is reaching saturation. As delivery of care evolves with greater integration of technology, potential applications to improve patient care expand.39 The proportion of family physicians using EMRs has grown from 16 per cent in 2004 to 85 per cent in 2017.40 As it becomes ubiquitous in health care delivery, information technology can be of great benefit in sharing information with patients, facilitating adherence to treatment plans and medication regimes, and using health information technology (HIT) in new and innovative methods of care. However, HIT also poses new risks and can create new barriers. Providers should be mindful of how the application about new technologies may hinder good quality patient care. When properly implemented, EMRs can help track data over time, identify patients who are due for preventive visits, better monitor patient baseline parameters (such as vaccinations and blood pressure readings), and improve overall quality of care in a practice.1 EMRs can enhance the capacity of every practice to store and recall medical information on each patient and on the practice population as a whole. They can facilitate sharing information needed for referrals and consultations. The information in an electronic record can be used for teaching, carrying out practice-based research, and evaluating the effectiveness of the practice change as part of a commitment to CQI.1 EMRs and HIT actively support other pillars in the PMH vision. In addition to storing and sharing information, the biggest benefit of this technology is the ability to collect data for practice performance and health outcomes of patients served by family practices.41 The data allow practices to measure progress through CQI goals. Larger-scale collection allows for the aggregation of anonymized data sets and measuring performance beyond the practice level.41 Strict privacy regulations ensure that patient data remain secure and confidential. Overall, QI and research benefit patients by guiding more appropriate and efficient care, which forms the basis of another key pillar of Physical space, staffing, electronic records and other digital supports, equipment, and virtual networks facilitate the delivery of timely, accessible, and comprehensive care. 2.1 All PMHs use EMRs in their practices and are able to access supports to maintain their EMR systems. 2.2 EMR products intended for use in PMHs are identified and approved by a centralized process that includes family physicians and other health care professionals. Practices are able to select an EMR product from a list of regionally approved vendors. 2.3 EMRs approved for PMHs will include appropriate standards for managing patient care in a primary care setting; e-prescribing capacity; clinical decision support programs; e-referral and consultation tools; e-scheduling tools that support advanced access; and systems that support data analytics, teaching, research, evaluation, and CQI. 2.4 Electronic records used in a PMH are interconnected, user-friendly, and interoperable. 2.5 Co-located PMH practices are in physical spaces that are accessible and set up to support collaboration and interaction between team members. 2.6 A PMH has the appropriate staff to provide timely access (e.g., having physician assistants and/or registered nurses to meet PMH goals). 2.7 A PMH has technology to enable alternative forms of care, such as virtual care/telecare. 2.8 Sufficient system funding and resources are provided to ensure that teaching faculty and facility requirements will be met by every PMH teaching site. the PMH vision— Pillar 9: Measurement, Continuous Quality Improvement, and Research. As EMR use becomes common, issues shift from rollout to optimization in the practice. Ideally, EMRs must be adequately supported financially and use a universal terminology to allow for standardized data management, and be interoperable with other electronic health records relevant to patient care.1 Training and ongoing technical support for effective use of technology must also be available. Digital information sources, especially in the sensitive areas of patient information and care planning, require a higher level of technical support to maintain faith in their use and application across stakeholder groups. A comprehensive, systematic analysis of peer-reviewed and grey literature found that cost sharing or financial sponsorship from governments is required to support the high cost of EMR adoption and maintenance. Governments in several European countries equip all primary care practices with interoperable, ambulatory care-focused electronic health records (EHRs) that allow information to flow across settings to enhance the continuity and coordination of care.1 Ensuring that government supports enable adoption, maintenance and effective use, coordination, and interoperability of electronic tools is crucial for meaningful use of this technology. A PMH will also use technology for alternative forms of care. Virtual care is clinical interactions that do not require patients and providers to be in the same room at the same time.42 Virtual visits will be financially compensated by provincial health plans. Consultations may be asynchronous, where patients answer structured clinical questions online and then receive care from a physician at a later time (e-visits), or synchronous, where patients interact with physicians in real time via telephone (teleconsultations), videoconference (virtual visits), or text.43 Virtual care increases accessibility for those living in rural and remote areas, but also in urban areas where some patients do not have a regular primary care physician or cannot access their physician for in-person appointments within a time frame that meets their current needs.43 Virtual care can also be an alternative solution for patients living in long-term care facilities and/or with mobility issues.43 Strong communication between team members allows PMH practices to function on a virtual basis when the health care professionals are not stationed in the same physical space. It is important to recognize when colocation is not feasible and maintain effective information flow in these situations, which may be especially relevant in rural and remote areas. Practices should ensure the electronic records they use are set up to support collaboration and interaction between all members of the team as much as possible, which includes all health care providers within the PMH as well as the patient’s circle of support. For example, ensuring that when patients see someone other than their most responsible provider is logged into the system and is easy to review to maintain the continuity of care. This becomes complex in situations where providers are not co-located, and further system level supports up to the level of more interoperable and universal electronic records is a prerequisite for full application of this principle. Appropriate infrastructure in a PMH is not just about technology—it includes efficient, effective, and ergonomically well-designed reception, administration, and clinical areas in the office. This is of significant benefit to staff and patients alike.44 Having a shared physical and/or virtual space where multiple team members can meet to build relationships and trust, and communicate with each other regarding patient care is essential to creating a collaborative practice. Team-based care thrives when care is intentional, when planned and regular patient care meetings are incorporated into usual PMH practice, and when these steps are included in remuneration. This collaboration ensures that patients are involved in all relevant Satisfaction with virtual visits A British Columbia study found that over 93 per cent of patients indicated that their virtual visit was of high quality, and 91 per cent reported that their virtual visit was very or somewhat helpful to resolve their health issue.43 10 A NEW VISION FOR CANADA Family Practice— The Patient’s Medical Home 2019 A NEW VISION FOR CANADA Family Practice— The Patient’s Medical Home 2019 11 discussions and are receiving the best care from professionals with a comprehensive set of skills. A family practice should be physically accessible to patients and their families. This includes ensuring all public areas, washrooms, and offices are wheelchair accessible.44 An examination room should comfortably accommodate the patient and whatever appropriate companion, or health care professionals, who may be in the room at the same time. Having multi-purpose rooms also reduces or eliminates the need to wait for an appropriate room to be available. To achieve their objectives, PMHs need the support of governments across Canada through the provision of adequate funding and other resources. Research demonstrates that in the case of EMRs, key barriers to adoption by family physicians include financial and time constraints, lack of knowledgeable support personnel, lack of interoperability with hospital and pharmacy systems,45 as well as provincial/territorial EHR systems. Therefore, government must assure funding to support the PMH team in their clinical, research, and administrative responsibilities. There must also be support for core practice components such as EMRs, patient-centred practice strategies such as group visits, and electronic communications between patients and health professionals (see Pillar 1: Administration and Funding). EMRs should help improve the delivery of care in community-based practices by enhancing productivity and processes. They are not intended to reduce time with patients, nor should they cause physician burnout or have a negative impact on physician wellness. While the structures supporting the PMH practices differs by province, it is important they cover a common set of principles enabling the base functionalities described in this document. The system must also ensure that all health professionals on the PMH team have appropriate liability protection and that adequate resources are provided so that each PMH practice can provide an optimal setting for teaching students and residents and for conducting practice-based research. Provider autonomy is critical to provider wellness: as physician leadership within the PMH is one of the key pillars, preservation of physician autonomy, while respecting the autonomy and ensuring the accountability of both patients and other health care professionals, must be addressed. Figure 2. The Patient’s Medical Neighbourhood Pillar 3: Connected Care Canada Health Infoway Established in 2001, Canada Health Infoway47 is an independent, not-for-profit organization funded by the federal government. It seeks to improve health care access, moving beyond traditional in-person care models to innovative strategies that accelerate the development, adoption, and effective use of digital health solutions across Canada. Key digital health priorities include electronic records, telehomecare, virtual visits, and patient portals. Connectivity and effective communication within and across settings of care is a crucial concept of a PMH. This ensures that the care patients receive is coordinated and continuous. To achieve this, each PMH should establish, maintain, and use defined links with secondary and tertiary care providers, including local hospitals; other specialists and medical care clinics; public health units; and laboratory, diagnostic imaging, physiotherapy, mental health and addiction, rehabilitation, and other health and social services. Connected care is a priority for many health care organizations in Canada. For example, the Canadian Foundation for Healthcare Improvement (CFHI) has established a unique program that looks at improving care connections between providers through improved use of technology.41 (See the Canadian Foundation for Healthcare Improvement textbox for more information). The Canadian Nurses Association (CNA), Canadian Medical Association (CMA), and HEAL recognize that giving Canadians the best health and health care requires creating a functionally integrated health system along the full continuum of care—a system based on interprofessional collaborative teams that ensure the right provider, at the right time, in the right place, for the right care.46 Similarly, Canada Health Infoway focuses on expanding digital health across the system to improve quality of and access to care. The PMH exists within the broader patient’s medical neighbourhood (see Figure 2), with links to all other providers in the community. It is important to maintain connections with colleagues in health care as well as social support organizations within the community, as described in Pillar 5: Community Adaptiveness and Social Accountability. Through links within the neighbourhood, PMH practices work with other providers to ensure timely access for referrals/consultations and define processes for information sharing. Establishing and maintaining these links requires open and frequent communication between all those involved in patient care. 12 A NEW VISION FOR CANADA Family Practice— The Patient’s Medical Home 2019 Practice integration with other care settings and services, a process enabled by integrating health information technology. 3.1 A PMH is connected with the health and social services available in the community for patient referrals. 3.2 Defined links are established between the PMH and other medical specialists, and medical care services in the local or nearest community to ensure timely referrals. 3.3 The PMH serves as a hub for collecting and sharing relevant patient information through information technology. It ensures the continuity of patient information received throughout the medical and social service settings. Ideally PMH practices act as the central hub for patient care by collecting and coordinating relevant patient information from external care providers and patients. This includes medical care and care accessed through other health and social services; for example, services received through home care programs. PMH practices should also be able to share relevant information with external providers where and when appropriate, while strictly adhering to relevant privacy regulations. This two-way flow of information ensures that all providers in the network of care have access to the most accurate and comprehensive information available, allowing them “… to spend less time looking for information and more time on what matters: treating the patient.” 49 Overall, connected care in the PMH and the health system is enabled through HIT systems. PMH practices continuously strive to work efficiently with other providers in the patient’s medical neighborhood by taking advantage of developing technologies that make links quicker to establish and easier to maintain. To use HIT systems for coordinated care, the following are required:51 Data standardization Interoperable EMR and other health information systems Real-time access to data and the ability to relay accurate information in a timely manner Reliable communication mechanisms between various health and social service providers and the PMH Privacy for patient information It is important to keep in mind that any patient information, generated during the provision of care, belongs to the patient, as outlined in the Personal Information Protection and Electronics Document Act (PIPEDA). The practice is responsible for secure and confidential storage and transfer of the information. Refer to the Data Stewardship module of the Best Advice guide: Advanced and Meaningful Use of EMRs50 for more information. Canadian Foundation for Healthcare Improvement The Canadian Foundation for Healthcare Improvement supports the RACE (Rapid Access to Consultative Expertise) and BASE eConsult services, which use telephone and web-based systems to connect patients with specialists.48 These programs have been successful and demonstrate that remote consultations can reduce wait times for accessing specialty care by enabling family physicians to more efficiently manage their patients in primary care settings. A NEW VISION FOR CANADA Family Practice— The Patient’s Medical Home 2019 13 14 A NEW VISION FOR CANADA Family Practice— The Patient’s Medical Home 2019 FUNCTIONS The functions describe the heart of the PMH and the care provided by PMH practices. These are the key elements that differentiate a PMH from other forms of primary care. A PMH offers: Accessible Care; Community Adaptiveness and Social Accountability; Comprehensive Team-Based Care with Family Physician Leadership; Continuity of Care; and Patient- and Family-Partnered Care. ACCESSIBLE CARE PAGE 15 COMMUNITY ADAPTIVENESS & SOCIAL ACCOUNTABILITY PAGE 17 COMPREHENSIVE TEAM-BASED CARE WITH FAMILY PHYSICIAN LEADERSHIP PAGE 20 CONTINUITY OF CARE PAGE 23 PATIENT & FAMILY PARTNERED CARE PAGE 25 Equitable and ethical practices The CMA has identified equitable access to care as a key priority for reform in the health care system.53 Similarly, accessibility is a key component of the primary health care approach, which is advocated for by the CNA.54 Through the CNA’s Social Justice Gauge, and with the further development of the social justice initiative, the CNA maintains its position as a strong advocate for social justice and a leader in equitable and ethical practices in health care and public health.55 Pillar 4: Accessible Care A NEW VISION FOR CANADA Family Practice— The Patient’s Medical Home 2019 15 Accessible primary care is fundamental to a highperforming health care system and is considered by patients52 and other health care organizations as one of the most important characteristics of primary health care. For care to be accessible, all patients should have access to a family physician who acts as their most responsible provider and is supported by a team of qualified health professionals. Patients must be able to access medical care and treatment when needed. While most Canadians currently have a regular family doctor,4 it is important that the goal be for everyone in Canada to have access to their own family physicians. Accessible care is about more than just quick access to appointments. It does include timely access principles, but also advanced access, virtual access, and teambased approaches to care that ensure patients can be seen by the most appropriate provider when they need to be seen. Because visits occur for different reasons it is not useful to define appropriate wait times for each type of visit unlike in other areas of health care, such as surgery. Therefore, the focus in family practice should be on enhancing access to ensure patients can access care when they feel it is necessary. This is not to say that family physicians in a PMH must be on call 24/7/365, but that methods for patients to access care through the design of practice operations and scheduling should be given more attention. On the other hand, as patients are offered more choice (e.g., by phone or e-communication), they should also expect practices to establish realistic parameters for what is reasonable. Practices should communicate clearly about what kind of provider availability and response time is reasonable to expect depending on access method and availability of resources. Obtaining this understanding from a practice’s patients and striving to meet these expectations is a By adopting advanced and timely access, virtual access, and team-based approaches, accessible care ensures that patients can be seen quickly. 4.1 A PMH ensures patients have access to medical advice, and information on available care options 24 hours a day, 7 days a week, 365 days a year. 4.2 Every patient is registered with a PMH. 4.3 PMH practices offer scheduling options that ensure timely access to appropriate care. 4.4 When the patient’s personal family physician is unavailable, appointments are made with another physician, nurse, or other qualified health professional member of the PMH team. 4.5 Patients are able to participate in planning and evaluation of their medical home’s appointment booking system. 4.6 Panel sizes for providers in a PMH should be appropriate to ensure timely access to appointments and safe, high-quality care. After-hours care A Waterloo, Ontario, study found that providing after-hours clinical services reduced wait times, with services from other health care providers seen as a key for improving patient access.59 Accessible care Accessible care reduces redundancy and duplication of services (e.g., when a patient takes a later appointment and also consults another provider in the interim), improves health outcomes, leads to better patient and provider satisfaction, and reduces emergency visits.56–58 16 A NEW VISION FOR CANADA Family Practice— The Patient’s Medical Home 2019 good way to maintain the patient-centred focus of the practice as described in Pillar 1: Administration and Funding. Significant shifts in providing alternative access must be supported by funding bodies. Same-day scheduling has been introduced in many PMH practices to better accommodate patient needs. Frequently referred to as doing “today’s work today,” advanced access offers the vast majority of patients the opportunity to book their appointments on the day they call regardless of the reason for the visit.60 Read more about same day scheduling in the Best Advice guide: Timely Access to Appointments in Family Practice.61 Whenever possible, patients should have clear reasons for the appointment at the time of booking. This ensures that adequate time is planned for each patient visit. If the need to address multiple problems arises, the problems can be triaged on the spot by one of the team and arrangements made to have these concerns dealt with in a timely manner either during the same visit or at another time. It is not always possible for patients to book appointments with their most responsible family physician. To ensure continuity, appointments can be made with other physicians or health care professionals in the team. The decision about who provides care in these cases is based on the patient’s needs, the availability of team members, and the scope of practice for each team member. In these cases, any relevant information from the appointment is communicated to the most responsible provider and taken into account in the long-term care of the patient. PMH practices can further meet patients’ needs through extended office hours, in which the responsibilities for coverage and care are shared by family physicians in one or more practices, as well as by increased involvement of other team members. PMH practices also provide their patients with email, after-hours telephone, and virtual services to guide them to the right place at the right time for the care they need. Appropriately directing patients to the next available appointment, or to a hospital or another emergency service, is critical to the effective management and sustainability of our health care system.62,63 A PMH can help ensure that patients are aware of where they can go to access care and health information 24 hours a day, 365 days a year by providing this information to patients in person or via other systems (website, voice mail messages, etc.). In alignment with Pillar 9: Measurement, Continuous Quality Improvement, and Research, PMH practices offer opportunities for patients to provide feedback on the accessibility of the practice. Specifically, patients should have the opportunity to evaluate and provide input for the appointment booking system. Mechanisms and supports need to be in place to ensure that practices and governing bodies can review and respond to feedback appropriately and communicate this back to patients. Determining the optimal panel size for each PMH practice is critical to ensuring accessible and safe, high-quality care.64 Establishing and incorporating recommendations from the PMH vision may enable practices to consider increasing their panel size. Actual panel size will vary depending on the number of physicians and other team members in the practice, the practice’s obligations and A NEW VISION FOR CANADA Family Practice— The Patient’s Medical Home 2019 17 Social accountability refers to the family physicians’ obligation to meet the needs of Canada’s communities.66 For health care to be socially accountable, it must be accessible by everyone and responsive to the needs of patients, communities, and the broader population.4 This obligation is embedded in the Family Medicine Professional Profile and the Four Principles of Family Medicine, highlighting that family physicians are community-adaptive, responding to the needs of their patients and communities. These principles of family medicine align well with the principles of social accountability. Family practice is relationship-based care that embraces all issues of need and endures over time and place of care. A generalist keeps the whole in mind while attending to the individual parts, the system in mind when fixing individual problems, and the end in mind when commencing the journey. Tools exist to help family physicians and other health care providers enhance their skills and training regarding social accountability and cultural safety through many professional organizations and cross-Canada resource hubs like the National Collaborating Centre of Determinants of Health67 and the National Collaborating Centre on Aboriginal Health,68 as examples. PMH practices are aware of how the SDoH influence the health of patients and communities. Family physicians are often the best-situated primary care professionals to act on Pillar 5: Community Adaptiveness and Social Accountability A PMH is accountable to its community, and meets their needs through interventions at the patient, practice, community, and policy level. 5.1 PMHs strive to assess and address the social determinants of health (e.g., income, education, housing, immigration status) as relevant for the individual, community, and policy levels. 5.2 Panel size will consider the community’s needs and patients’ safety. 5.3 PMHs use data about marginalized/at-risk populations to tailor their care, programming, and advocacy to meet unique community needs. 5.4 Family doctors in the PMH act as health advocates at the individual, community, and policy levels, using the CanMEDs–Family Medicine (CanMEDS-FM) Framework as a guide to advocacy and are supported in doing so. 5.5 Family doctors and team members within the PMH provide care that is anti-oppressive and culturally safe, seeking to mitigate the experiences of discrimination faced by many patients based on their age, gender, race, class, sexual orientation, gender identity, ability, etc. commitment to teaching and research, and the needs of the population being served (see Pillar 5: Community Adaptiveness and Social Accountability). When deciding panel size, each practice must determine how accepting more patients into the practice might impact the current population, the sustainability of the workload for physicians and other members of the PMH team, and the consequences of panel size on experience of care. Refer to the Best Advice guide: Panel Size for more information.65 issues that affect patients’ SDoH. Advocating for patients and the health care system overall is a natural part of a PMH structure. Advocacy can occur at three levels:69 Micro: In the immediate clinical environment, daily work with individual patients and predicated on the principles of caring and compassion Meso: In the local community, including the patient’s cultural community, the local community of medical providers, and the larger civic community, in which health professionals are citizens as well as practitioners Macro: In the humanitarian realm, where physicians are concerned with the welfare of their entire patient population and seek to improve human welfare through healthy public policy (such as reducing income inequality, supporting equitable and progressive taxation, and expanding the social safety net) The principles of advocacy in family practice are found in the CanMEDS–Family Medicine 201769 competency framework, under the Health Advocate role. The Best Advice guide: Social Determinants of Health70 describes how family physicians in the PMH can make advocacy a practical part of their practice. Poverty is a significant risk factor for chronic disease, mental illness, and other health conditions. Low income and other SDoH also present significant barriers to accessing care.71 To meet the needs of these patients, practices may need to extend hours, be more flexible and responsive, and spend additional time helping patients navigate and access necessary care. PMH practices consider other specific community needs when determining appropriate panel size. Demographics and health status of the patient population can influence the length and frequency of appointments needed, thereby impacting a physician’s caseload.65 For example, a PMH in a community with high rates of chronic conditions may need to reduce the panel size to provide timely and high-quality care, given that patients require more care time and resources. Similarly, a patient’s social situation may impact the time a family physician spends with them. Family physicians and team members may need to use a translator at clinical appointments, and may need to provide written resources in alternative languages, all factors affecting the time required to provide care. Enabling PMH practices to adjust panel size based on community needs requires governments to establish blended payment mechanisms. These remuneration systems ensure family physicians are adequately compensated, and are not financially disincentivized from spending the necessary time with patients (see Pillar 1: Administration and Funding, for more information). Social accountability and cultural competency Part of the response to being more socially accountable with care offered to the community resides within each and every health professional. While courses on cultural competency are now a standard part of medical education, physicians can take this learning further by seeking to reflect on, be aware of, and correct any unconscious biases that naturally forms and holds as a result of individual life experiences. Working to resolve implicit biases is a lifelong effort, but done diligently, can contribute to improving the quality of care provided,72 as well as the satisfaction of being an effective healer—of ourselves, our patients and our societies. Importance of social accountability Social accountability is a key value for health care organizations and professionals. For example, the Royal College of Physicians and Surgeons of Canada (Royal College), Resident Doctors of Canada, and the Association of Faculties of Medicine amongst others, have adopted policies that highlight the importance social accountability within their organizations and the work they do. 18 A NEW VISION FOR CANADA Family Practice— The Patient’s Medical Home 2019 Family physicians and their PMH teams are situated at the nexus of individual and population health, and can engage with their patients in addressing health promotion and disease prevention in creative ways. From accompanying individual patients through teachable moments (e.g., the smoker with pneumonia ready to quit) to influencing civic policy to address homelessness, the stories entrusted to family physicians in daily practice are powerful tools for healthy change. These teams are also key providers in many important public health areas, including illness and injury prevention; health promotion; screening and managing chronic diseases; immunizations; and health surveillance. PMH practices prioritize delivering evidence-based care for illness and injury prevention and health promotion, reinforcing them at each patient visit and other counselling opportunities. PMHs and local or regional public health units should cultivate and maintain strong links with one another. Health care professionals who are part of PMH teams may take on advisory, educational, supportive, or active roles in public health initiatives, in many different occupational, educational, or recreational settings throughout the community. An effective public health system should be inextricably linked to communitybased family physicians and PMHs, recognizing and supporting them as essential to the achievement of the broader population and public health goals. While PMHs focus primarily on the care of individuals and their families, it is important for team members to understand and address the health challenges facing their practice populations and the larger community. These broader challenges represent upstream factors (SDoH) that have greater impact on the health of patients than do the efforts of individual physicians. However, the relationships embedded in individual and collective practices can be central to engaging patients and citizens in building more just and healthier communities and societies. For example, with the help of HIT, details about the needs of populations can be more easily accessed through extraction from practice EMRs, or participation in programs such as the Canadian Primary Care Sentinel Surveillance Network (CPCSSN).73 The CPCSSN networks collect health information from EMRs of participating primary care providers, extract anonymous data, and share information on chronic conditions with governments, health care providers, and researchers to help inform meaningful systems and practice change. Programs like the CPCSSN allow practices to better understand the needs of their communities and implement specific health promotion and prevention programs that can contribute to the population’s overall well-being. Initiatives like this also ensure the avoidance of data duplication, and recognise that practices do not need (or have the resources) to collect data on their own. However, these data are just a part of caring—the heart of generalism is keeping the whole in mind while attending to its parts, whether it is at the level of the whole patient, the whole family, or the whole society. To meet the needs of their diverse panel of patients, family physicians and other team members in the PMH work to provide anti-oppressive and culturally-safe care, seeking to mitigate experiences of discrimination faced by many patients based on their SDoH. This requires understanding how historical and current injustices have impacted the well-being of certain populations, and working to ensure a safe and welcoming practice environment by focusing on the principles of caring and compassion. Sociodemographic data benefits The FHT at St Michael’s Hospital routinely collects sociodemographic data on all patients. Patients are surveyed about income, housing status, gender identity, and other key SDoH factors, and their responses are integrated into the secure EMR. This information is used to inform and direct individualized patient-centred care. The data will also be used for planning and evaluating the FHT’s programs.74 A NEW VISION FOR CANADA Family Practice— The Patient’s Medical Home 2019 19 Pillar 6: Comprehensive Team-Based Care with Family Physician Leadership Primary care practice teams Many allied health professional organizations have prioritized the importance of working together in a team to provide patients with the best possible care. The CFPC worked collaboratively with organizations—such as the CNA, the Canadian Association of Social Workers, the Canadian Psychological Association, and the Dieticians of Canada—to create the Best Advice guide: Team-Based Care in the Patient’s Medical Home.75 The guide includes implementation strategies for creating a primary practice team, and general descriptions of roles found in a collaborative team. 20 A NEW VISION FOR CANADA Family Practice— The Patient’s Medical Home 2019 A broad range of services is offered by an interprofessional team. The patient does not always see their family physician but interactions with all team members are communicated efficiently within a PMH. The team might not be co-located but the patient is always seen by a professional with relevant skills who can connect with a physician (ideally the patient’s own personal physician) as necessary. 6.1 A PMH includes one or more family physicians, who are the most responsible provider for their own panel of registered patients. 6.2 Family physicians with enhanced skills, along with other medical specialists, are part of a PMH team or network, collaborating with the patient’s personal family physician to provide timely access to a broad range of primary care and consulting services. 6.3 On-site, shared-care models to support timely medical consultations and continuity of care are encouraged and supported as part of each PMH. 6.4 The location and composition of a PMH’s team is flexible, based on community needs and realities; team members may be co-located or may function as part of virtual networks. 6.5 The personal family physician and nurse with relevant qualifications form the core of PMH teams, with the roles of others (including but not limited to physician assistants, pharmacists, psychologists, social workers, physiotherapists, occupational therapists, dietitians, and chiropractors) encouraged and supported as needed. 6.6 Physicians, nurses, and other members of the PMH team are encouraged and supported in developing ongoing relationships with patients. Each care provider is recognized as a member of the patient’s personal medical home team. 6.7 Nurses and other health professionals in a PMH team will provide services within their defined roles, professional scopes of practice, and personally acquired competencies. Their roles providing both episodic and ongoing care support and complement—but do not replace—those of the family physician. Team-based care is a core function of the PMH. Building a team with a diverse mix of professional backgrounds creates an opportunity to redefine what is considered optimal, based on the needs of the practice and the community it serves. A high-performing team is essential to delivering more comprehensive, coordinated, and effective care centred on the patient’s needs. While different circumstances call for aspects of patient care to be provided by different health professionals, it is important to ensure that family physician expertise is available to all team members through consultation. To practice effectively in an interprofessional health care team, there must be a clear understanding of each member’s unique contributions, including educational background, scopes of practice and knowledge, and areas of excellence and limitations.76 Practices that draw on the expertise of a variety of team members are more likely to provide patients with the care they need and respond to community needs.77 Relationships across all dynamics within a practice, whether between a patient and family physician or between a patient and other members of the team, should be encouraged and supported in the PMH. Establishing these relationships develops trust and confidence, and works toward the ultimate goal of achieving better health outcomes. While it should be left to each practice to determine who does what (within the boundaries of professional scopes of practice), the most responsible provider for the medical care for each patient in the practice should be the patient’s personal family physician. Family physicians with enhanced skills and family physicians with focused practices play an important role in collaborating with the patient’s personal family physician and team to provide timely access to a range of primary care and consulting services. They supplement their core skills and experience with additional expertise in a particular field, while remaining committed to their core generalist principles.78 These doctors can draw extensively on their generalist training and approach to disease management and patient-centred care, enabling them to work collaboratively at different levels of care, including with other specialists, to meet patient needs.79 These clinicians also serve as a resource for other physicians in their local health system by enhancing care delivery and learning and teaching opportunities. The Best Advice guide: Communities of Practice in the Patient’s Medical Home80 provides more information about intraprofessional collaboration between family physicians. Shared care strategies provide patients with timely access to consultations with other specialists or family physicians with enhanced skills at scheduled times in the family practice office setting. The consultant might assess several patients per visit, at which time a plan for ongoing care can be developed and agreed to by the family physician, consultant, other team members, and the patient. There is no one-size-fits-all model when determining what mix of health care professionals is right. Team composition depends on the professional competencies, skills, and experiences needed to address the health needs of the patient population.81 These needs vary, depending on the communities’ defining characteristics; Additional members of practice teams Not all health care professionals in a team need to be hired as a full-time team member. For example, a practice can hire a dietician for specific days to lead a diabetes education program and see scheduled patients. Practices can also host other health care professionals, such as those employed with a regional health authority, to provide care to patients on-site. However, funding bodies should recognize that family practice clinics hosting other health care professionals often carry the overhead costs associated with these practitioners working on site, and further supports should be made available to ensure that costs do not unduly fall on the physicians. Pillar 1: Administration and Funding and Pillar 2: Appropriate Infrastructure highlight that a PMH needs to be properly funded and have access to the right infrastructure (physical and governance) to support the initiatives described in this vision. A NEW VISION FOR CANADA Family Practice— The Patient’s Medical Home 2019 21 22 A NEW VISION FOR CANADA Family Practice— The Patient’s Medical Home 2019 for example, geography, culture, language, demographics, disease prevalence. Family physicians are encouraged to identify the gaps in health care provision in the local practice environment and work with other health care providers to meet those needs as much as possible. Data from EMRs—as well as input from patients, community members, and stakeholders—should inform team planning. Factors to consider include: Patient population Identified community health care needs Hours available for patient access Hours available for each physician to work Roles and number of non-physician providers Funds available81 Overlapping or variations of similar competencies can result in ambiguous expectations of what a defined role is within a practice. When teams are planned and developed, roles should be clearly outlined. This is best done at the local practice level relative to community needs and resources. This approach considers changes over the course of a health care professional’s career, including skills development, achievement of certifications, and professional interests.82 It is important to include time for team members to become comfortable in their role, at the outset of team-based care and with any changes to the team. It is also important to recognize that these arrangements are flexible and subject to change, provided the team engages in discussion and reaches consensus on needed adjustments. Team members might be in the same office or in the same building, but this is not necessary. For smaller and more remote practices, or larger urban centres where proximate physical space may be a barrier, some connections may be arranged with peers in other sites. Applying HIT judiciously allows for virtual referrals and consultations. Virtual links between PMH practices and other specialists, hospitals, diagnostic services, etc., can be enhanced with more formal agreements and commitments to provide timely access to care and services. By providing patients with a comprehensive array of services that best meet their needs, team-based care can lead to better access, higher patient and provider satisfaction, and greater resource efficiency.61,77,83 Although there are presently many systems in place that support the creation of health care teams, practices can also create a successful team on their own. To ensure team success, providers must have a clear understanding of the different role responsibilities and ensure that there are tools available to engage open dialogue and communication. Teams within the PMH are supported by a model that is flexible and adaptable to each situation. The skills that family physicians acquire during their training (as described in the CanMEDS-FM framework) make them well suited to provide leadership within interprofessional teams. As an important part of a PMH, teams are central to the concept of patient-centred care that is comprehensive, timely, and continuous. A NEW VISION FOR CANADA Family Practice— The Patient’s Medical Home 2019 23 Pillar 7: Continuity of Care Continuity of care is defined by consistency over time related to where, how, and by whom each person’s medical care needs are addressed throughout the course of their life.84 With strong links to comprehensive team-based care (see Pillar 6: Comprehensive Team-Based Care with Family Physician Leadership), continuity of care is essential to any practice trying to deliver care truly centred on the needs of the patient. Continuity of care is rooted in a long-term patient-physician partnership in which the physician knows the patient’s history from experience and can integrate new information and decisions from a whole-person perspective efficiently without extensive investigation or record review.84 From the patient’s perspective, this includes understanding each person’s life journey and the context this brings to current health status, and the trust they have in their provider that is built over time. Past studies show that when the same physician attends to a person over time, for both minor and more serious health problems, the patient-physician relationship is strengthened and understanding grows—an essential element of effective primary health care.85 The personal physician offers their medical knowledge and expertise for a more complete understanding of the patient as a person, including the patient’s medical history and their broader social context, such as personal, family, social, and work histories (see Pillar 5: Community Adaptiveness and Social Accountability). In this model, patients, their families and/or personal caregivers, and all health care providers in the PMH team are partners in care, working together to achieve the patient’s goals and engaging in shared decision making. Understanding the patient’s needs, hopes, and fears, and their patterns of response to illness, medications, and other treatments, deepens the physician’s ability to respond to larger trends, not just the medical issue presented at any given appointment. Continuity of care can ideally support the health and well-being of patients actively and in their daily lives without focusing only on care when they are ill. The strong physician-patient relationship developed over time allows them to maintain good health and prevent illness and injury, as the physician uses their deep knowledge of their patient to work with teams of qualified health professionals to best support the patient’s well-being. Family physicians in the PMH, acting as the most responsible provider, can provide continuous care over the patient’s lifespan and develop strong relationships with patients. Research demonstrates that one of the most significant contributors to better population health is continuity of care.86,87 It found that those who see the same primary care physician continuously over time have better health outcomes, reduced emergency department use, and reductions in hospitalizations versus those who receive care from many different physicians. A Canadian study found that after controlling for demographics and health status, continuity of care was a predictor of decreased hospitalization for ambulatory caresensitive conditions (such as such as COPD, asthma, diabetes, and heart failure) and decreased emergency department visits for a wide range of family practicesensitive conditions.85 Overall “the more physicians patients see, the greater the likelihood of adverse effects; seeking care from multiple physicians in Patients live healthier, fuller lives when they receive care from a responsible provider who journeys with them and knows how their health changes over time. 7.1 The PMH enables and fosters long-term relationships between patients and the care team, thereby ensuring continuous care across the patient’s lifespan. 7.2 PMH teams ensure continuity of care is provided for their patients in different settings, including the family practice office, hospitals, long-term care and other community-based institutions, and the patient’s residence. 7.3 A PMH serves as the hub that ensures coordination and continuity of care related to all the medical services their patients receive throughout the medical community. the presence of high burdens of morbidity will be associated with a greater likelihood of adverse side effects.”86 It has been reported that a regular and consistent source of care is associated with better access to preventive care services, regardless of the patient’s financial status. Continuity of care also requires continuity in medical settings, information, and relationships. Having most medical services provided or coordinated in the same place by one’s personal family physician and team has been shown to result in better health outcomes.88 As described in Pillar 3: Connected Care, when care must be provided in different settings or by different health professionals (i.e., the medical neighbourhood), continuity can still be preserved if the PMH plays a coordination role and communicates effectively with other providers. The PMH liaises with external care providers to coordinate all aspects of care provided to patients based on their needs. This includes but is not limited to submitting and following up on referrals to specialized services, coordinating home care, and working with patients before and after discharge from hospitals or other critical care centres. In addition to this coordination role, the PMH acts as a hub by sharing, collecting, storing, and acting as a steward for all relevant patient information. This ensures that the family physician, as the most responsible provider, has a complete overview of the patient’s history. A record of care provided for each patient should be available in each medical record (preferably through an EMR) and available to all appropriate care providers (see Pillar 2: Appropriate Infrastructure for more information about EMRs). Knowing that medical information from all sources (i.e., providers inside and outside the PMH) is consolidated in one location (physical or virtual) increases the comfort and trust of patients regarding their care. Continuity for patient health Research demonstrates that continuity of care is a key contributor to overall population health. Patients with a regular family physician experience better health outcomes and fewer hospitalizations as compared to those without.69 24 A NEW VISION FOR CANADA Family Practice— The Patient’s Medical Home 2019 Pillar 8: Patient- and Family-Partnered Care External factors for patient health care Patient- and family-partnered care is considered a key value to stakeholders across the health care system. In 2011, the CMA and the CNA released a set of principles to guide the transformation of Canada’s health care system.91 Patient-centred care is listed as the first principle, and as a key component of improving the overall health care experience.91 Similarly, in 2016 Patients Canada called on all levels of government to ensure that patients are at the centre of any new health accords and future health care reform.92 * Family caregivers include relatives, partners, friends, neighbours, and other community members. Patient-centred care is at the core of the PMH. Dr. Ian McWhinney—often considered the “father of family medicine”—describes patient-centred care as the provider “enter[ing] the patient’s world, to see the illness through the patient’s eyes … [It] is closely congruent with and responsive to patients’ wants, needs and preferences.”89 In this model, patients, their families and/ or personal caregivers, and all health care providers in the PMH team are partners in care, working together to achieve the patient’s goals and engaging in shareddecision making. Care should always reflect the patient’s feelings and expectations and meet their individual needs. Refer to the Best Advice guide: Patient-Centred Care in a Patient’s Medical Home90 for more information. Family caregivers* play an important role in the PMH. They help patients manage and cope with illness and can assist physicians by acting as a reliable source of health information and collaborating to develop and enact treatment plans.93 The level and type of engagement from family caregivers should always be determined by the patient. Physicians “should routinely assess the patient’s wishes regarding the nature and degree of caregiver participation in the clinical encounter and strive to provide the patient’s desired level of privacy.”94 They should revisit this conversation regularly and make changes based on patient desires. PMH practices focus on providing patient-centred care and ensuring that family caregivers are included. A NEW VISION FOR CANADA Family Practice— The Patient’s Medical Home 2019 25 Family practices respond to the unique needs of patients and their families within the context of their environment. 8.1 Care and care providers in a PMH are patient-focused and provide services that respond to patients’ feelings, preferences, and expectations. 8.2 Patients, their families, and their personal caregivers are active participants in the shared-decision making process. 8.3 A PMH facilitates patients’ access to their medical information through electronic medical records as agreed upon with their care team. 8.4 Self-managed care is encouraged and supported as part of the care plans for each patient. 8.5 Strategies that encourage access to a range of care options beyond the traditional office visits (e.g., telehealth, virtual care, mobile health units, e-consult, etc.) are incorporated into the PMH. 8.6 Patient participation and formalized feedback mechanisms (e.g., patient advisory councils, patient surveys) are part of ongoing planning and evaluation. As part of their commitment to patient-centred care, PMH practices facilitate and support patient self-management. Self-management interventions such as support for decision making, self-monitoring, and psychological and social support, have been demonstrated to improve health outcomes.95 PMH team members should always consider recommendations for care from the patient’s perspective. They should work collaboratively with patients and their caregivers to develop realistic action plans and teach problem-solving and coping. This is particularly important for those with chronic conditions, who must work in partnership with their physician and health care team to manage their condition over time. (Refer to the Best Advice guide: Chronic Care Management in a Patient’s Medical Home96 for more information). The goal of self-managed care should be to build the patient’s and caregiver’s confidence in their ability to deal effectively with illnesses, improve health outcomes, and foster overall well-being. To facilitate patient- and family-partnered care, a range of user-friendly options for accessing information and care beyond the traditional office visit should be available to patients when appropriate. These include email, telehealth, virtual care, mobile health units, e-consults, home visits, same-day scheduling, group visits, self-care strategies, patient education, and treatment sessions offered in community settings. Providing a range of options allows patients to access the type of care they prefer based on individual needs. Patients also need to be informed about how they can access information and resources available to them; for example, resources such as Prevention in Hand (PiH).97 Allowing patients to access to their medical records can improve patient-provider communication and increase patient satisfaction.98,99 The specific information accessible to patients should be discussed and agreed upon by the patient and their care team. Patient education about accessing and interpreting the available information is necessary. Facilitating this type of access requires each PMH to have an EMR system that allows external users to access information securely (see Pillar 2: Appropriate Infrastructure). Patient surveys and opportunities for patients to participate in planning and evaluating the effectiveness of the practice’s services should be encouraged; practices must be willing respond and adapt to patient feedback. To strengthen a patient-centred approach, practices may consider developing patients’ advisory councils or other formalized feedback mechanisms (e.g., using patient surveys) as part of their CQI processes (see Pillar 9: Measurement, Continuous Quality Improvement, and Research). Patient self-management The Ajax Harwood Clinic (AHC) is a good example of how a practice that enables patient self-management can improve long-term health outcomes, especially for patients with chronic conditions.94 The AHC has created an environment of learning and seeks to encourage health literacy among its patients through its various programs. The clinic is focused on patient education and empowerment, and all programs at the clinic are free of charge to patients to remove financial barriers to access. 26 A NEW VISION FOR CANADA Family Practice— The Patient’s Medical Home 2019 A NEW VISION FOR CANADA Family Practice— The Patient’s Medical Home 2019 27 ONGOING DEVELOPMENT Each PMH strives for ongoing development to better achieve the core functions. The PMH and its staff are committed to Measurement, Continuous Quality Improvement, and Research; and Training, Education, and Continuing Professional Development. MEASUREMENT, CONTINUOUS QUALITY IMPROVEMENT, AND RESEARCH PAGE 28 TRAINING, EDUCATION, AND CONTINUING PROFESSIONAL DEVELOPMENT PAGE 30 28 A NEW VISION FOR CANADA Family Practice— The Patient’s Medical Home 2019 Continuous quality improvement CQI is an important value among health organizations such as the CFHI.100 Pillar 9: Measurement, Continuous Quality Improvement, and Research CQI is an essential characteristic of the PMH vision. It encourages health care teams to make practical improvements to their practice, while monitoring the effectiveness of their services, the health outcomes and safety of their patients, and the satisfaction of both patients and the health professionals on the team. Every PMH is committed to establishing a CQI program that will improve patient safety, and enhance efficiency and quality of the services provided to patients. As part of CQI activities, a structured approach is used to evaluate current practice processes and improve systems and to achieve desired outcomes. To engage in CQI, the PMH team must identify the desired outcomes and determine appropriate evaluation strategies. Once the process and the desired outcome are defined with patients, the CQI activity will track performance through data collection and comparison with the baseline. Performance measures can be captured through structured observation, patient and staff surveys (see Pillar 8: Patient- and Family- Partnered Care), the PMH self-assessment tool, and the practice’s EMR (see Pillar 1: Administration and Funding and Pillar 3: Connected Care). The indicators selected should be appropriate to each practice and community setting, be meaningful to the patients and community, and the CQI process could be introduced as a practice’s self-monitoring improvement program or as an assessment carried out by an external group. In some jurisdictions, funding is tied to achieving performance targets, including those that provide evidence for the delivery of more cost-effective care and better health outcomes.101 Some provinces in Canada have begun to link financial incentives to clinical outcomes and targets that have been achieved (“pay for performance” models).102 Although there may be some benefits derived by this approach, there can also be risks if funding incentives and resource supports become overly focused on patients with certain medical problems or on those who have greater potential to reach prescribed targets, while at the same time care is being delayed or denied for others.101,103 Future development A NEW VISION FOR CANADA Family Practice— The Patient’s Medical Home 2019 28 Family practices strive for progress through performance measurement and CQI. Patient safety is always a focus, and new ideas are brought to the fore through patient engagement in QI and research activities. 9.1 PMHs establish and support CQI programs that evaluate the quality and cost effectiveness of teams and the services they provide for patient and provider satisfaction. 9.2 Results from CQI are applied and used to enhance operations, services, and programs provided by the PMH. 9.3 All members of the health professional team (both clinical and support teams), as well as trainees and patients, will participate in the CQI activity carried out in each PMH. 9.4 PMHs support their physicians, other health professionals, students, and residents to initiate and participate in research carried out in their practice settings. 9.5 PMHs function as ideal sites for community-based research focused on patient health outcomes and the effectiveness of care and services. A NEW VISION FOR CANADA Family Practice— The Patient’s Medical Home 2019 29 of financial incentive models should consider these unintended consequences that might impair the ability of practices to provide good quality patient care to their full population. The objectives that define a PMH could be used to develop the indicators for CQI initiatives in family practices across Canada. These criteria could be augmented by indicators recommended by organizations such as Accreditation Canada, Health Quality Ontario, Health Standards Organization, and the Patient-Centered Medical Home model in the United States. The CFPC is committed to collaborating with these groups to further develop the CQI process for PMHs and family practices. Consult the CFPC’s Practice Improvement Initiative (Pii)104 for a list of available resources. CQI is a team activity and should involve all members of the PMH team as well as patients and trainees. This will ensure buy-in from the team, allow for patient engagement and participation, and provide trainees with valuable learning opportunities.105 PMHs are committed to using the results of CQI initiatives to make tangible changes in their practice to improve operations, services, and programs. Time and effort invested into participation in CQI activities should be recognized as valuable and not be disincentivized through existing remuneration models. Dedicated time and capacity to perform these activities should be built into the practice operational principles. On a larger scale, PMHs function as ideal sites for community-based research focused on patient health outcomes and the effectiveness of care and services. The PMH team should be encouraged and supported to participate in research activities. They should also advocate for medical students, residents, and trainees to take part in these projects. In Canada, the Canadian Primary Healthcare Research Network (CPHRN) and the commitment of the Canadian Institutes for Health Research’s (CIHR’s) Strategy for Patient-Oriented Research (SPOR) are vitally important.106 The focus on supporting patient-oriented research carried out in community primary care settings is consistent with the priorities of the PMH. Competitions for research grants such as those announced by SPOR should be strongly encouraged and supported. PMHs are ideal laboratories for studies that embrace the principles of comparative effectiveness research (CER) and the priorities defined by the CPHRN and CIHR’s SPOR project. They provide excellent settings for multi-site research initiatives, including projects like those currently undertaken by the CPCSSN—a nationwide network of family physicians conducting surveillance of various chronic diseases. 30 A NEW VISION FOR CANADA Family Practice— The Patient’s Medical Home 2019 Pillar 10: Training, Education, and Continuing Professional Development PMH practices serve as training sites for medical students, family medicine residents, and those training to become nurses and other health care professionals.107 They create space for modelling and teaching practices focused on the essential roles of family physicians and interprofessional teams as part of the continuum of a health care system. One of the goals of family medicine residency training is for residents to learn to function as a member of an interdisciplinary team, caring for patients in a variety of settings including family practice offices, hospitals, long-term care and other communitybased institutions, and patients’ residences.70,108 A PMH also models making research and QI initiatives a standard feature of a family practice. Professional development and opportunities to participate in these activities should be available and supported within PMH practices through resources, guidance, and specifically dedicated time. Family medicine training is increasingly focused on achieving and maintaining competencies defined by the CFPC’s Triple C Family Medicine Curriculum.109 Triple C includes five domains of care: care of patients across the life cycle; care across clinical settings (urban and rural); a defined spectrum of clinical responsibilities; care of marginalized/disadvantaged patients and populations; and a defined list of core procedures. Triple C also incorporates the Four Principles of Family Medicine and the CanMEDS-FM Roles. PMHs allow family medicine students and residents to achieve the competencies of the Triple C curriculum and to learn how to incorporate the Four Principles of Family Medicine, the Family Medicine Professional Profile, and the CanMEDS-FM roles into their professional lives. Learners gain experience with patient-partnered care, teams/networks, EMRs, timely access to appointments, comprehensive continuing care, management of undifferentiated and complex problems, coordination of care, practice-based research, and CQI—essential elements of family practice in Canada. Furthermore, PMH practices serve as optimal sites for trainees in other medical specialties and health professions to gain valuable experience working in interprofessional teams and providing high quality, patient-centred care. Medical schools and residency programs should encourage learners to conduct some of their training within PMH practices. Emphasis on training and education ensures that the knowledge and expertise of family physicians can be shared with the broader health care community, and also over time by creating learning organizations where both students and fully practising family physicians can stay at the forefront of best practice. 10.1 PMHs are identified and supported by medical and other health professional schools as optimal locations for the experiential training of their students and residents. 10.2 PMHs teach and model their core defining elements including patient-partnered care, teams/networks, EMRs, timely access to appointments, comprehensive continuing care, management of undifferentiated and complex problems, coordination of care, practice-based research, and CQI. 10.3 PMHs provide a training environment for family medicine residents that models, and enables residents to achieve, the competencies as defined by the Triple C Competency-based Family Medicine Curriculum, the Four Principles of Family Medicine, and the CanMEDS-FM Roles. 10.4 PMHs will enable physicians and other health professionals to engage in continuing professional development (CPD) to meet the needs of their patients and their communities both individually and as a team. 10.5 PMHs enable family physicians to share their knowledge and expertise with the broader health care community. Practising family physicians must engage in CPD to keep current on medical and health care developments and to ensure their expertise reflects the changing needs of their patients, communities, and learners. Mainpro+® (Maintenance of Proficiency) is the CFPC’s program designed to support and promote family physicians’ CPD across all CanMEDS-FM Roles and competencies. CPD refers to physicians’ professional obligation to engage in learning activities that address their own identified needs and the needs of their patients; enhance knowledge, skills, and competencies across all dimensions of professional practice; and continuously improve their performance and health care outcomes within their scope of practice.110 Three foundational principles for CPD in Canada have been recently described: Socially responsive to the needs of patients and communities Informed by scientific evidence and practicebased data Designed to achieve improvement in physician practice and patient outcomes CPD is inclusive of learning across all CanMEDS-FM Roles and competencies, including clinical expertise, teaching and education, research and scholarship, and in practice-based QI. PMH practices support their physicians, and all other staff members, to engage in CPD activities throughout their careers by creating a learning culture in the organization. This includes providing protected time for learning and team-based learning, and access to practice data both to discern patient/community need and practice gaps to inform CPD choices and to evaluate the impact of learning on patient care. This learning culture and the will to be constantly improving quality and access to care is essential to ensuring that the PMH continues to support high performing care teams. To ensure that all PMH team members have the capacity to take on their required roles, leadership development programs should be offered. Enabling physicians to engage in this necessary professional development requires sufficient funding by governments to cover costs of training and financial support to ensure lost income and practice capacity do not prevent this. Physicians in the PMH share their knowledge with colleagues in the broader health care community and with other health care professionals in the team by participating in education, training, and QI activities in collaboration with the pentagram partners.† This is particularly relevant for family physicians who are focused on a particular area of practice (possibly holding a Certificate of Added Competence) and are able to share their extended expertise with others. This can happen either informally or through more official channels. For example, physicians may participate in activities organized by the CFPC or provincial Chapters (e.g., Family Medicine Forum, provincial family medicine annual scientific assemblies), or lend their expertise to interprofessional working groups addressing specific topics in health care. Family physicians should be encouraged to engage in these types of events to share their knowledge and skills for the betterment of the overall health system. Continuing professional development CPD is an integral value across the entire health care system. Organizations such as the Royal College, CMA, and CNA emphasize the value and importance of continuing education for health care professionals to improve patient care. † Pentagram partners: policy-makers—federal, provincial, territorial, and regional health authorities; health and education administrators; university; community; health professionals—physicians and teams A NEW VISION FOR CANADA Family Practice— The Patient’s Medical Home 2019 31 32 A NEW VISION FOR CANADA Family Practice— The Patient’s Medical Home 2019 CONCLUSION The revised PMH vision of a high-functioning primary care system responds to the rapidly evolving health system and the changing needs of Canadians. The pillars and attributes described in this document can guide practices at various stages in the transition to a PMH, and many characteristics are found in other foundational documents of family medicine such as the Family Medicine Professional Profile111 and the Four Principles of Family Medicine. Supporting resources, such as the PMH Implementation Kit, are available to help those new to the transition overcome barriers to change. Although the core components of the PMH remain the same for all practices, each practice will implement the recommendations according to their unique needs. The PMH is focused on enhancing patient-centredness in the health care system through collaboration, access, continuity, and social accountability. It is intended to build on the long-standing historical contribution of family physicians and primary care to the health and wellbeing of Canadians, as well as on the emerging models of family practice and primary care that have been introduced across the country. Importantly, this vision provides goals and recommendations that can serve as indicators. It enables patients, family physicians, other care health professionals, researchers, health planners, and policy-makers evaluate the effectiveness of any and all models of family practice throughout Canada. Those family practices that meet the goals and recommendations described in this vision will have become PMHs, but the concept is ever evolving. As family physicians commit to making change in their practices, the CFPC commits to supporting developments in the PMH by creating and promoting new resources, which will be available through the PMH website. The CFPC will also play an important advocacy role to ensure that the necessary supports are in place to reach the goals of a PMH. Every family practice across Canada should be supported and encouraged by the public, governments, and other health care stakeholders (the pentagram partners) to achieve this objective. Doing so will ensure that every person in Canada is able to access the best possible primary care for themselves and their loved ones. A NEW VISION FOR CANADA Family Practice— The Patient’s Medical Home 2019 33 REFERENCES 1. College of Family Physicians of Canada. A Vision for Canada: Family Practice - The Patient’s Medical Home. Mississauga, ON: College of Family Physicians of Canada; 2011. Available from: www.cfpc.ca/uploadedFiles/Resources/ Resource_Items/PMH_A_Vision_for_Canada.pdf. Accessed 2019 Jan 21. 2. National Physician Survey. 2014 National Physician Survey website. http:// nationalphysiciansurvey.ca/surveys/2014-survey/. Accessed 2019 Jan 22. 3. 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