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Presentation to the Standing Committee on Finance Pre-Budget Consultations : Securing Our Future . . . Balancing Urgent Health Care Needs of Today With The Important Challenges of Tomorrow

https://policybase.cma.ca/en/permalink/policy2013
Last Reviewed
2020-02-29
Date
2001-11-01
Topics
Health systems, system funding and performance
Health human resources
  1 document  
Policy Type
Parliamentary submission
Last Reviewed
2020-02-29
Date
2001-11-01
Topics
Health systems, system funding and performance
Health human resources
Text
The Canadian Medical Association (CMA) values the open, constructive and ongoing dialogue afforded by the Standing Committee on Finance’s Pre-Budget Consultations process. As a society, it is essential that we make every effort to work together to find lasting solutions to what are a series of complex and interdependent policy issues, especially during these turbulent times. Last August, the Committee set out objectives for this year’s consultations. You asked for advice on how to ensure that Canada remains a major player in the New Economy while providing Canadians with equal opportunities to succeed and create a socio-economic environment where they can enjoy the best quality of life and standard of living. However, world events have intervened and the urgent has crowded out the important. The CMA has suspended, for the most part, what we consider important longer term issues in an effort to do our part in helping guide the government’s deliberations in this time of national need. We support the government’s commitments, to date, in response to the events of September 11 and their aftermath. We are cognizant of the economic forecasts that show a slowing economy as a result and the need to re-focus our national attention on security issues. The overriding challenge for this Committee therefore, will be to develop recommendations for the next budget that address the current and future situation with respect to national security without losing sight of internal needs such as pursuing the innovations necessary to ensure the long-term sustainability of our health care system. Indeed, we see the latter as supporting the former. The CMA is committed to working closely with the federal government to ensure that Canada’s health care system can respond to immediate health security challenges. Our members are committed to continuing to ensure that Canadians’ confidence is restored by developing and implementing policy initiatives that serve to strengthen Canadians’ access to quality health care when they need it. To this end and building on our efforts since September 11, the CMA has put together a to meet these objectives. Specifically, the CMA has examined and developed recommendations that address national preparedness in terms of security, health and capacity; the capacity of our health human workforce in addressing current and future demands; and a look beyond the urgent to the necessary, in the form of a proposed process to review tax policy in support of health policy. II. PREPAREDNESS Health and Security The events of September 11, 2001 have had a profound impact on the lives of Canadians. Anxiety over the openness of our borders, the safety of our airlines and our vulnerability to attacks filled the media and our conversations in the days following the tragedies in the United States. A Canadian Ipsos Reid Express survey taken for the Canadian Medical Association October 23-25, 2001 indicated that 31% of respondents report ongoing sadness, anger, disturbed sleep, or are overprotective of their children. 1 This confirms what our members are telling us, based on everyday practice. A GPC International survey indicates that three-quarters of Canadians have a moderate to strong fear that the US-led anti-terrorist campaign will lead to Canada being a possible terrorist target. 2 An earlier Canadian Ipsos Reid Express survey taken October 1, 2001 shows that the attacks have risen to the top of the list of issues (73%) that should receive the greatest attention among our leaders. 3 Social issues, including health, are the second rated (49%) concern among Canadians. The Canadian Medical Association’s response following the terrorist attack was immediate and is ongoing. Working through and with our provincial/territorial Divisions and Affiliates, the Association began collecting names of those physicians willing to offer assistance to US agencies dealing with the tragedy should it have been requested. As well, we spearheaded the development of the Canadian Mental Health Support Network (www.cma.ca/cmhsn), which includes Health Canada and twelve other national health associations, to help Canadians and Canada’s health professionals cope with the mental health aftermath of the attack. The work of this network continues in terms of a series of public security announcements to be released very soon and in terms of ensuring that the information available through health professionals is clear, concise and consistent. We also provided continuous updated advice to Canadian doctors about bioterrorist threats. In the early days of the anthrax scare, before Health Canada had materials available for the public, hundreds of calls for information to 1-800-OCanada were referred daily by Health Canada to the CMA. However, there is an aspect of this issue requiring urgent attention given the current environment. It is the ability of our health system to respond to a disaster, be it a terrorist attack, a natural disaster or a large scale accident. As the Canadian Medical Association and others have documented, the people and the infrastructure of our system is already stretched in its capacity to deal with everyday demands. We have seen that emergency rooms across this country can barely cope with the increased demands brought on by the annual flu season. The system is already operating at or beyond capacity. Devastation approaching the scale of September 11 has not been seen in Canada since December 6, 1917 with the Halifax explosion. While no health system can ever be fully prepared to meet such a staggering level of destruction, it must have the confidence, the resources and, the disaster planning and referral systems to rise to the challenge if Canadians are to be reassured that help will be there if and when they need it. Public Health and Safety The challenge – if and when it comes – will require a local response that is supported nationally. To appreciate the scope of the work necessary to prepare the health system for the threats brought by terrorism it will be useful to understand the challenges currently facing public health in Canada. We have long enjoyed the benefits of a solid public health system through the various health protections, health promotion, and disease prevention and control programs created to maintain and improve the health of the population. The essential role of the medical officer of health in the public health system must be acknowledged, supported, and respected. Their credibility provides the community and health care professionals, particularly physicians, with balance and specialized medical expertise on public health matters. When the board of health is performing its mandated duties successfully, few are even aware that it is at work. Yet when a public health crisis strikes, the community expects rapid, knowledgeable, expert and quality attention to matters. But it can only do that if there is a strong infrastructure in place to meet the challenge. A clear and present danger is the emergence of new diseases or the re-appearance of old ones. An editorial in the April 27, 2000 issue of the New England Journal of Medicine expresses concern about the ability of public health infrastructures to cope with this problem without the resources needed to respond. 4 Increased trade, rising migration rates, and changes in the environment have led to worries over the revival of diseases thought to be under control or near extinction (e.g., human plague, tuberculosis and malaria) and even the recognition of some new “bugs”. The need to be vigilant about the re-emergence of infectious diseases was brought home to governments with a large outbreak of human plague in India in 1994. 5 Out of 876 cases reported, characterized as presumptive plague, 56 were fatal. A large outbreak of Ebola in Zaire in 1995 led to as many as 233 people dying from the disease and further strengthened the case for devoting resources to this problem. 6 West Nile Virus The New York City area got a first-hand look at this problem in 1999 with the appearance of the West Nile virus in North America. As the New York Times reported, it may have come in the blood of a traveler returning from Africa or Europe. 7 It may have arrived in an infected bird smuggled in baggage or even in a mosquito that got onto a jet. In spite of efforts to contain the disease, it has now begun to spread through the eastern portion of the continent, as far north as southern Ontario and as deep as Florida. Tuberculosis Tuberculosis remains one of the world’s two deadliest infections and it is feared to be on the verge of a major comeback. The disease kills 1.5 million to 2 million people a year, almost as many as AIDS. Experts say that toll could increase in the coming years because TB bacteria are evolving dangerous new strains that are increasingly drug-resistant. 8 Health Canada reports that there have been some cases (and deaths) in Canada of multiple drug-resistant TB (MDR-TB) strains. 9 Only Newfoundland, PEI and the territories have not had cases of drug-resistant TB. Latvia and Russia are considered “hot spots” in the world for MDR-TB. However, one in three reported isolates in New York City in recent years was MDR-TB. As well, highly resistant strains spread from New York to Florida, Nevada, Georgia and Colorado in less than two years. Malaria The World Health Organization estimates that one million die from malaria a year and 90% of those deaths are Africans (2500 African children under five die from malaria each day). 10 The disease seems to be dying back in other continents but growing stronger across Africa. The WHO report on infectious diseases describes malaria as having the power to “overwhelm a young child causing high fever, convulsions and breathing difficulties. With the onset of cerebral malaria the child lapses into a coma and may die within 24 hours.” 11 AIDS According to the WHO, there are over 33 million people worldwide living with HIV/AIDS. 12 The hardest hit area is sub-Saharan Africa where one in four of the adult population has HIV/AIDS. In South Africa, 10% of the population is now infected with HIV. 13 The problem among pregnant women is worse, with 22% infected with HIV. In May, 2000, the US National Security Council declared that the spread of AIDS across the world is a threat to national security. 14 The concern, like many of the infectious diseases, is that eventually it will overwhelm the ability of governments to cope with the disease. The US government has sought to double to $254 million to combat AIDS overseas. Readiness Post-September 11 The tragic events of September 11 provided a grim reminder of the necessity of having a strong public health infrastructure in place at all times. As was demonstrated quite vividly that day, we do not have the luxury of time to prepare for these events. While it is not possible to plan for every contingency, certain scenarios can be sketched out and prepared for. To succeed, all communities must maintain a certain consistent level of public health infrastructure to ensure that all Canadian residents are protected from threats to their health. These are only some of the external threats. The Canadian public health system must also cope with domestic issues such as diseases created by environmental problems (e.g., asthma), sexually transmitted diseases, and influenza, among many others. Even before the spectre of bioterrorism this country’s public health experts were concerned about the infrastructure’s ability to deal with multiple crises. There are many vacancies among the public health physician and nursing staffs, particularly in rural and northern Canada as well as the First Nations units. This workforce is also aging and efforts to attract and retain staff have been lagging. The announcement of October 18, 2001 by the federal government of a $11.59 million investment was welcome news to Canadians in the aftermath of September 11. It provided for the “basics” in terms of stockpiling of necessary antibiotics, the purchase of sensor and detection equipment to help respond to radio-nuclear incidents, enhancing a laboratory network to better equip them to detect biological agents, and provide training to front-line health care professionals to help them recognize, diagnose and treat suspicious illnesses. However, far more needs to be done to improve our ability to respond to health and security contingencies of all kinds. The Walkerton water crisis is an example of the difficulties often faced by public health officials. Without the full resources (legislative, physical, financial, human) to do the job properly, the health of Canadians is potentially jeopardized. The Ontario Medical Association emphasized this point in its brief to the Walkerton Inquiry: “Unstable and insufficient resources hamper the Ontario public health system. Steps must be taken by the provincial government to enhance the ability of boards of health to deliver public health programs and services that promote and protect health and prevent disease and injury. Sufficient and reliable public health funding is critical.” 15 The CMA reinforced that message in a resolution passed at its 2001 Annual General Meeting: “That CMA recommend all levels of government across Canada urgently review legislation governing all aspects of drinking water from source to consumption to ensure that comprehensive programs are in place and being properly implemented, with effective linkages to local, provincial and territorial public health officials and Ministries of Health.” In a recent broadcast in the United States, Dr. Jeffrey Koplan, Director of the US Centers for Disease Control and Prevention laid out seven priority areas for building capacity and preparedness within a public health system: 16 * A well trained, well staffed public health workforce * Laboratory capacity to produce timely and accurate results for diagnosis and investigation * Epidemiology and surveillance to rapidly detect health threats * Secure, accessible information systems to help analyze and interpret health data * Solid communication to ensure a secure two-way flow of information * Effective policy evaluation capability * A preparedness and response capability which includes a response plan and testing and maintaining a high state of preparedness These points apply whether the threat is a natural disaster or a terrorist attack. Public health must be ready for all such threats. And, at present, we are told, that responding to a crisis like Walkerton or North Battleford, not to mention the possibility of co-ordinated bioterrorism, effectively results in public health units shutting down many core programs that are the building blocks of the health care system. As the long shadow of bioterrorism rises over Canada and menaces our health and wellbeing, these issues take on even more significance to Canadians. This Committee must do its part to provide for an “act locally by thinking nationally” with regard to public health support systems. The Current Context As noted above, prior planning and preparation is one of the keys to ameliorating the effects of such sudden and calamitous occurrences. It must be remembered that a catastrophic event of the nature that occurred on September 11 is a local event in that it happens within the jurisdiction of a specific municipality. The quality and level of the response depends on how well prepared the local authorities are for such actions. The local capacity to respond varies across Canada with some area health services (e.g., the larger urban centres) better prepared and equipped than others (there may be jurisdictions that do not have plans). Regardless of how well prepared any municipality is there is always the very strong possibility that public health officials will be overwhelmed and need to turn to the province or territory for help. It is also possible that the event is so massive that even the provincial or territorial resources are besieged and it must call on the federal government with their stockpiles of medical supplies and access to epidemiologists and laboratory services. That assumes good planning before hand between the federal and provincial/territorial governments and that is not necessarily the case. There is an important role for the federal government to urgently improve the coordination among authorities and reduce the variability among the various response plans in cooperation with provincial authorities (and assist those in preparing plans where none exist). Health Canada must help facilitate efforts to rationalize preparations and make it easier for jurisdictions to assist one another in a time of disaster. This could include measures such as transferring patients quickly to facilities outside the affected area when the immediate hospitals are full or even to transferring them to other provinces or territories if necessary. Disease surveillance is another component of these measures. To be effective there must be, at the provincial and territorial level, linked electronic surveillance mechanisms that are standardized and the staff available to analyze and report the data. At the federal level, the government must be ready to provide data in a timely fashion, especially in an emergency. However, very few of Canada’s doctors will have seen the disease entities that threaten Canadians at the moment (e.g., anthrax, smallpox). The CMA has expressed its willingness to assist Health Canada in bringing together stakeholders to develop quickly a curriculum that would train health care professionals to recognize, diagnose and treat the new threats we face as a society. The government must also aid in the development of volunteer teams of health professionals and other experts that can be mobilized rapidly in response to disasters wherever and whenever they occur. The concept would be similar to the military's Disaster Assistance Response Team (DART). 17 DART consists of medical, engineering, logistics, communications and security personnel ready to deploy at short notice to anywhere in the world from their support base at Canadian Forces Base Trenton. It is crucial, that the federal government build and maintain its supplies for emergency use, its public health laboratories for early detection, its capacity to rapidly train and inform frontline health workers of emerging threats, its ability to assist the provinces and territories, and co-ordinate provincial responses in the event of overwhelming or multiple simultaneous threats. In this area, the CMA recommends that: 1. The federal government immediately provide a minimum of $15 million for an assistance fund to municipal and provincial authorities to improve the co-ordination of their emergency responses among public health officials, police, fire and ambulance services, hospitals and other services. This fund should be over and above a similar sized investment to ensure that Health Canada’s Centre for Emergency Preparedness can function even only at a minimal level of effectiveness. The announcement of October 18 by the Minister of Health that $11.59 million would be spent to enhance our response to a potential attack is an important step toward reassuring Canadians that help will be there when they need it. However, far more must be done to further expand the federal government’s ability to assist municipalities, provinces and territories in dealing with disasters. The vital role played by disease surveillance cannot be stressed enough. In the event of an unusual or particularly feared illness, or an outbreak of a preventable disease, the public’s attention can quickly focus on the public health unit’s response. The medical officer of health communicates with physicians (specialists and, general and family practices physicians) in the community. Physicians, especially general and family practice physicians, depend upon their medical officers of health and the health units as an important resource. This includes information on contact tracing, interpretation of unusual clinical symptomatology, vaccination, communicable disease control, outbreak control, environmental health, cluster investigation, epidemiology, travel medicine etc. An effective and efficient surveillance system must be in place in order to provide this data quickly to stop the spread of a disease as fast as possible. Unfortunately, a weak link in the existing surveillance system is communications. This has had an impact on health professionals’ ability to receive timely information regarding changes in disease incidence in their community. Regional, provincial/territorial and federal authorities must work to improve the coordination of communications at all levels to protect the health and wellbeing of Canadians in times of crisis. The CMA recommends that: 2. The federal government continue to invest, at a minimum, $25 million in the coming year in the resources and infrastructure (i.e., medical supplies, equipment, laboratory facilities, and training for health care professionals), needed to anticipate and respond to disasters. The sale of Connaught Laboratories meant that Canada lost much its residual capacity to manufacture vaccines. If this were a “normal” war, Canadians would be looking to divert our manufacturing capacity toward meeting the threat. Given the biological threat, the Government of Canada should be negotiating with the pharmaceutical industry to increase our capacity to produce a secure supply of vaccine on Canadian soil. This would include the need for more than one supplier and the capacity to increase quickly the production of the vaccine. The CMA recommends that: 3. That the federal government undertake an immediate review of Canada’s self-sufficiency in terms of critical medical supplies (e.g., vaccines) required in the event of disasters with a view to short term self sufficiency. Surge Capacity Among the first points of contact with the health system for Canadians in the event of a significant attack on our population it will be the doctors offices and the emergency rooms of our hospitals. As noted earlier, we have witnessed in recent years the enormous strain these facilities can be placed under when even something quite routine like influenza strikes a community hard. The media abounded with stories of patients waiting hours to be examined, of stretchers lining corridors and of ambulances being redirected from hospital to hospital. Canadians themselves experienced first-hand how the resources of the hospitals, particularly the human resources, were stretched to the breaking point. The acute care occupancy rates of Ontario public hospitals across the Ontario Hospital Association regions in 1999-00 illustrate this point. In three of the five regions (Eastern Ontario, Central and South West) the occupancy rate ranged from 94% to 97% 18. The highest rate was found in the very heavily populated Central region. A British Medical Journal study suggests that an occupancy rate over 90% indicates that the hospital system is in a regular bed crisis 19. This problem is not unique to Ontario: “the decrease in the number of acute care beds across Canada over the past decade, coupled with an aging population and our extraordinary success in extending the survival of patients with significant chronic illness, has eliminated any cushion in bed occupancy in the hospital system.” 20 With this in mind, picture a catastrophe similar in scale to the destruction seen in New York or Washington D.C. occurring in downtown Toronto, Vancouver or Montréal; or perhaps the release of smallpox or botulism over Fredericton or Winnipeg. As noted earlier, the public health system and medical diagnostic and treatment systems in the community and hospitals could become overwhelmed very quickly without the ability to absorb the extra caseload. Like our hydro system, that is why surge capacity must be built into the system nationally to enable hospitals to open beds, purchase more supplies, and bring in the health care professionals it requires to meet the need. An element of surge capacity that is seriously lacking is the federal government’s contribution to emergency bed space. With the closure of most of the Canadian Force’s hospitals and the severe loss of experienced health professionals in the military, the government’s ability to assist local and provincial/territorial civilian authorities should their systems become overwhelmed is limited. Currently the National Emergency Stockpile System can supply up to 40,000 cots, as well as medical supplies and relatively rudimentary hospital equipment. Reports indicate, however, that much of the equipment is decades old, and that protocols for logistical management (e.g., transport and rapid deployment) are outdated. There is an urgent need to reassess and reaffirm capacity in this context. The CMA is in close contact with the American Medical Association as they advise their government on coordinating the use of civilian and federal facilities in an emergency. Most hospitals work on a just-in-time inventory basis for the purchase of drugs. Without some sort of plan to quickly re-supply their pharmacies and expand their capacity, patient care will suffer. The federal government must assure Canadians that municipal and provincial plans are in place with an overarching national plan to support these jurisdictions if their service capacities are overwhelmed. As mentioned earlier, the announcement by the federal government of the $11.59 million investment to enhance our response to a potential attack is a good step. But the government must help further by making available an emergency fund that would enable hospitals to plan and organize their surge capacity. The CMA recommends: 4. The federal government provide, in the coming year, $25 million in specific earmarked funding to the provinces and territories to enable health care facilities to plan, build and maintain surge capacity (e.g., open more beds, purchase emergency supplies) into their systems. The purpose of having such elaborate response plans and stockpiles of supplies and equipment is to be ready for the possibility that, in spite of all efforts to prevent a catastrophe from occurring, it nevertheless happens. That is when responsibility for dealing with the aftermath of the event falls largely to the public health system where a strong and viable infrastructure must already be in place to meet the challenge. Without the resources and the preparations, the crisis might well deteriorate and spread beyond “ground-zero.” That notion is often very difficult for non-health sector agencies and organizations to appreciate and can be an impediment to improving our capacity to help Canadians in times of disaster. No one can be completely prepared but you can prepare for certain scenarios. That is where the federal government can facilitate the health system’s readiness and reassure Canadians that help will be there when they need it. The federal government has taken several steps to reassure Canadians that their physical safety is enhanced. This includes the introduction of the Anti-Terrorism Act and the development of an Anti-Terrorism Plan. As well, there is increased funding to the Canadian Security and Intelligence Service and the Communications Security Establishment to help those agencies do their jobs more effectively. The health system must be considered an integral component of any plan to combat terrorism. It too requires assistance, especially the public health infrastructure, in strengthening its ability to counter the effects of an attack, whomever or whatever is responsible. III. THE CAPACITY OF OUR HEALTH HUMAN WORKFORCE Although the right mix of physical infrastructure and sustainable, long-term funding is necessary, in and of itself, it is not sufficient to ensure that all Canadians have timely access to quality medical services. We must also have an adequate supply of physicians and other health personnel or the system will not have the flexibility or adaptability to respond to basic societal needs or a crisis in times of disaster. We believe that the health workforce in general is facing a major sustainability challenge, and as such, this section of the brief proposes initiatives that are not solely focused on physicians but the entire health human workforce. Reports produced by several health professional organizations show that although overall numbers may be increasing, it is not sufficient to meet future demands. In 2000, there was a moderate 1.7% increase in the nurse population 21; however, a 1997 Canadian Nurses Association report projected that the supply of nurses must grow by 2.1% per year to meet future demand. 22 Similarly, the number of physicians per 100,000 population appears to be increasing slightly each year (187 in 2000), but it remains below the 1993 level of 191 per 100,000 population. The physician to population ratio can be misleading in that it does not necessarily represent full time physicians. CMA figures show that a larger proportion of physicians fall into the older age groups and may not be working full time or indeed may not be providing patient care at all. Also, one needs to factor in the demographics of the current physician workforce. Female physicians, who tend to work fewer hours per week than their male colleagues, now represent 30% of the practising pool. This means that more physicians will be needed to provide the same number of services. But this may not be possible, as approximately two-thirds of all family physicians are no longer routinely accepting new patients. 23 This is placing considerable pressure on those currently working within the health care system with little hope for relief. For example, data gathered through the CMA’s annual Physician Resource Questionnaire (PRQ) substantiates anecdotal evidence that physicians are working harder. Over half the respondents to the 2001 PRQ (53.7%) indicated that their workload had increased over the past year. Looking at specific areas that have caused physicians the greatest degree of stress, 63.7% indicated that their workload is heavier than they would like (up from 62% in 1998), while 58.1% felt that their family and personal life had suffered from choosing medicine as a profession (up from 55% in 1998). There are a number of short-term and longer term initiatives that can be implemented to reverse the shortage in our health care personnel and alleviate the stress they are feeling from trying to keep the system operating as best it can. What follows is a description of the short-term initiative the CMA is proposing for consideration by the Standing Committee. For a detailed description of the longer term initiatives and recommendations, please refer to Appendix A. What Can be Done Today? Given the immediate need for more physicians and other health professionals in Canada and the time lag involved in training, especially for physicians, the CMA proposes that a variation on the strategy adopted by the Canadian Forces (CF) 24 be used to repatriate physicians and other professionals. The CF announced the implementation of a Medical and Dental Direct Entry Officer Recruitment Allowance effective April 1, 1999 to recruit licensed family physicians, general practitioners and dentists. Recruitment incentives involve a lump-sum signing bonus/recruitment allowance of $80,000 per direct entry medical officer and $25,000 per direct entry dental officer after a successful completion of 3 months of basic officer training. The commitment is for a duration of 4 years and retention incentives involve an adjustment to medical and dental rates of pay that are competitive with private sector net earnings. The CMA concurs with the concept of an incentive program as proposed by the CF and suggests that a similar approach be implemented for recruiting and retaining Canadian physicians and other health care professionals currently practising outside of Canada. Presently there are some 10,500 Canadian physicians practicing in the US as well as tens of thousands of Canadian nurses. Of these physicians, close to 1,000 are considered active physicians both in Canada and the US. 25 Some of these physicians are no doubt practising in border towns where dual licensure is common, but many may be expatriates who have maintained their licensure in Canada hopefully with plans to either return or at least leave their future options open. Rather than proposing a lump sum approach as an incentive the CMA proposes that the incentive come through graduated federal income tax relief by reducing federal income tax payable by 50% for 3 years for Canadian physicians and health care professionals who return to practice in Canada. Such an approach provides direct relief and over a period of 3 years would provide incentives similar in size to those proposed by the CF in their recruitment and retention program. It is estimated that such a program would cost approximately $45 million over 3 years to repatriate an estimated 5% or 500 physicians back to Canada. If repatriation of other health care providers were included then it is estimated that the total cost of such an initiative could increase to $85 million over 3 years. The CMA therefore recommends: 5. That the federal government seriously consider implementing a 3-year graduated tax relief and re-allocation policy to encourage expatriate physicians and other health professionals to return to Canada. IV. TAX POLICY IN SUPPORT OF HEALTH POLICY The federal government has played a key role in the development of our health care system, primarily through a variety of measures or policy levers such as: spending; taxation; regulation; and information. Up until now, Canada’s health care system has made extensive use of only two federal policy levers, namely spending, in the form of cost-sharing arrangements between the federal and provincial/territorial governments; and by regulation, through the Canada Health Act. However, the degree to which the government can continue to rely on these levers must be examined. In the not-too-distant future, our health care system will face a number of pressures that will challenge its sustainability. Namely, an aging and more demanding population in terms of the specialty care services and technology they will seek; the cry for expanding the scope of medicare coverage to include homecare and pharmacare; and a shortage of health personnel. Several national health care studies, namely the Prime Minister’s Forum on Health and more recently, the Senate Standing Committee on Social Affairs, Science and Technology’s Study of the Health Care System have raised the need to look at alternative health care funding sources. We can not and should not wait any longer to explore and act upon the options available to us. Looking at Alternatives One of the lesser-explored options has been the strategic use of Canada’s taxation system. A public discussion of tax policy has not been seen in Canada since at least 1966. 26 Nor have we seen a major assessment of tax policy in relation to social policy since the 1980’s Macdonald Commission. In fact, the last major overall tax policy review was that of Benson in 1971. There is an urgent need to more fully consider the role that the tax system can play in supporting the health care system. Several proposals have been put forward over time in this areas, such as earmarked taxes for health; health-related excise taxes; input tax credits for health care services; medical savings accounts; saving for long-term care; social insurance; and refundable tax credits. This list is not exhaustive. In fact, the CMA has done some preliminary work in this area by commissioning a discussion paper on taxation and health policy. 27 In the paper, the author puts forth 10 “real world” proposals where the tax system can be used to support health policy. The CMA has initiated detailed discussion with Health Canada, Statistics Canada and others to model some of the possible scenarios. Of course, some of these are more promising than others. It is for this reason that the CMA is recommending the federal government to establish a National Task Force to review the tax system with the purpose of developing innovative tax-based mechanisms that better synchronize tax policy with health policy. In this area, the CMA recommends: 6. That the Federal Government establish a blue ribbon National Task Force to study the development of innovative tax-based mechanisms to better synchronize tax policy and health policy. First and foremost this Task Force would study: a) increasing the reach of the medical expense deduction (i.e., increasing the threshold from the current 3% of taxable expenditures) b) extending the medical expense deduction from a non-refundable tax credit to a refundable tax credit so that those not having income tax payable are afforded easier access to those services not covered under universal health “programs” c) dealing with the untoward inequities arising out of the application of the GST. The CMA envisions the mandate of the Task Force as being – to conduct a thorough policy and costing analysis of all potential tax-based mechanisms (not limited to those outlined in the above recommendations) that can be developed to assist in the financing and management of the health care system. The Task Force would be comprised of representatives from government, the health care system, private sector, and the public and it would issue its findings and recommendations within 2 years of its conception. V. SUMMARY OF RECOMMENDATIONS In closing, the CMA has offered a powerful and strategic combination of policy initiatives designed to re-vitalize Canada’s health care system as well as to restore Canadians’ confidence that they will be taken care of in times of disaster. The proposals are realistic and practical. They give the provinces and territories full flexibility in terms of policy implementation while ensuring full recognition to the federal government for its essential investments. These proposals emphasize the need for the federal government to continue its leadership to ensure that our health care system, Canada’s most cherished social program, is available to meet the health care needs of all Canadians. No one group can address all of the issues and challenges facing the health care system. The CMA reiterates its commitment to work with the federal government and others to ensure that our health care system will be there for all Canadians in the future and in times of crisis. The Summary of Recommendations is as follows: 1. The federal government immediately provide a minimum of $15 million for an assistance fund to municipal and provincial authorities to improve the co-ordination of their emergency responses among public health officials, police, fire and ambulance services, hospitals and other services. 2. The federal government continue to invest, at a minimum, $25 million in the coming year in the resources and infrastructure (i.e., medical supplies, equipment, laboratory facilities, and training for health care professionals), needed to anticipate and respond to disasters. 3. That the federal government undertake an immediate review of Canada’s self-sufficiency in terms of critical medical supplies (e.g., vaccines) required in the event of disasters with a view to short term self sufficiency. 4. The federal government provide, in the coming year, $25 million in specific earmarked funding to the provinces and territories to enable health care facilities to plan, build and maintain surge capacity (e.g., open more beds, purchase emergency supplies) into their systems. 5. That the federal government seriously consider implementing a 3-year graduated tax relief and re-allocation policy to encourage expatriate physicians and other health professionals to return to Canada. 6. That the Federal Government establish a blue ribbon National Task Force to study the development of innovative tax-based mechanisms to better synchronize tax policy and health policy. First and foremost this Task Force would study: a) increasing the reach of the medical expense deduction (i.e., increasing the threshold from the current 3% of taxable expenditures) b) extending the medical expense deduction from a non-refundable tax credit to a refundable tax credit so that those not having income tax payable are afforded easier access to those services not covered under universal health “programs” c) dealing with the untoward inequities arising out of the application of the GST. APPENDIX A The Capacity of Our Health Human Workforce Looking to the Future There are some signs that governments have begun to acknowledge that we are in a sustained shortage situation. In November 1999, several health ministers met with members of the Canadian Medical Forum Task Force on Physician Supply in Canada which recommended 2000 first year medical school places for 2000. Since then, governments have been very active in committing to increases in both undergraduate and postgraduate medical training. Enrolment of new medical students in 2000/2001 reached 1763 for an increase of 12% since 1997/98. This closely matches the promised increases to undergraduate enrolment made by governments. Approximately 140 more positions have been promised for the school years beginning 2001 and 2002. In this area, the CMA recommends that: 7. That the federal government immediately establish a Health Human Resources Education and Training Fund in the amount of $500 million per year for 5 years to fund: (1) increased enrolment in undergraduate and postgraduate education; and (2) the expanded infrastructure (both human and physical resources) required at Canada’s 16 health science centres as a result of increased enrolment. While the outlook for the future supply of physicians in Canada seems brighter, it will be quite a few years before we can benefit from the current increases in undergraduate enrolment. These initiatives must not only continue, but be enhanced to ensure that our health care system is sustainable into the future. However, there is one factor that may keep us from attaining the optimal level of medical school enrolment – high and rising medical school tuition fees. In August 2000, at the Conference of Premiers, Prime Minister Chretien said, “It is indeed important in the new knowledge-based economy that Canadians … have access to high quality post-secondary education without excessive debt loads, and that every child get the best possible start in life. This is all part of the Canadian competitive advantage.” 28 This sounds well and good, but the facts tell us otherwise. Since 1980, medical school tuition costs have increased by almost 880%, or more than twice as fast as the general cost of living. 29 The average tuition for students entering first year medical school in September 2001 was $12,840, a 158% increase over the 1997 average fee of $4,977. This means that over the course of four years, an undergraduate medical student is likely to spend approximately $110,000 in tuition, academic and living expenses. 30 Many students have had to resort to bank loans to cover the shortfall from their government-sponsored student loan, but the growing amount of debt accumulating for medical students is starting to worry the banks. The CIBC says that rising medical education costs have resulted in debt loads growing much faster than medical students’ potential income and so, it will no longer grant medical students preferred lending rates. The CIBC sets limits on the amount of debt that they feel students can repay in the years following their training. Unfortunately, medical students are now reaching these limits – which are in the $100,000 - $130,000 range. 31 Unlike the government-sponsored loans, interest on bank loans begin accruing immediately, up to a decade before a medical student starts earning a full income. This trend raises serious concerns that access to medical education will be restricted solely on the basis of personal financial resources. High debt loads will discourage capable and qualified students – particularly those from modest financial backgrounds – from applying to medical school. Canada’s health care system needs individuals from different socio-economic, cultural, rural and urban backgrounds to serve an equally diverse population of patients. First and foremost, the government must address the situation concerning the high and rising tuition fees and the insufficient financial support systems available to medical students. It must also consider purchasing additional training positions in Canada’s medical schools specifically targeted for groups, such as Aboriginal, Indian and Inuit populations. These measures will foster the education and training of a diverse population of health care givers, and will support the culturally and socially sensitive health care needs of all Canadians. The CMA sees a strong role for the federal government in ensuring that medicine remains a rewarding and affordable career accessible to students based on their passion and academic performance, not their financial status. The CMA therefore recommends: 8. That, in order to alleviate some of the pressures driving tuition fee increases, the federal government increase transfer payments to the provinces/territories with targeted amounts for post-secondary education. 9. That the federal government create and fund a national health services student bursary program to encourage students who have limited financial resources to apply for an education in health care services. 10. That the federal government develop financial support systems for health services students that are: (a) non-coercive; (b) developed concomitantly or in advance of any tuition increase; (c) in direct proportion to any tuition fee increase; and (d) provided at levels that meet the needs of the students. 11. That the federal government purchase additional training slots in Canadian medical schools for particular segments of our population, such as aboriginals. REFERENCES 1 Canadian Ipsos Reid Express. Terrorist Effect. October 23-25, 2001. 2 GPC International. Canadians split on the best response to the terrorist attacks and fear reprisals at home. Media Release October 18, 2001. www.gpcinternational.com/media/releases/20011018.html 3 Canadian Ipsos Reid Express. The Public Agenda Post September 11, 2001. October 1, 2001 4 Osterholm M. Emerging infections – another warning. NEJM 2000; 342(17) http://www.nejm.org/content/2000/0342/0017/1280.asp. 5 World Health Organization. Plague Manual – Epidemiology, Distribution, Surveillance and Control. The Organization: 1999. http://www.who.int/emc-documents/plague/docs/whocdscsredc992a.pdf 6 Sanchez A. et al. Reemergence of Ebola virus in Africa. Emerging Infectious Diseases Vol. 1(3); July-September 1995. http://www.cdc.gov/ncidod/eid/vol1no3/sanchez.htm. 7 Revkin A. Mosquito virus exposes the hole in the safety net. New York Times Oct. 4, 1999. http://www.nytimes.com/library/national/regional/100499ny-pest.html 8Okie S. Tuberculosis is threatening to make a comeback. International Herald Tribune Aug. 11, 1999. http://www.iht.com/IHT/TODAY/WED/IN/tb.2.htm 9 Health Canada. When anti-tuberculosis drugs don’t work. Tuberculosis Epi Update January 2000. http://www.hc-sc.gc.ca/hpb/lcdc/bah/epi/tbdrug_e.html. 10 BBC News Online. Africa confronts malaria. Apr. 25, 2000. http://www.bbc.co.uk/hi/english/world/africa/newsid_724000/724445.stm 11World Health Organization. World Health Organization Report on Infectious Diseases – Removing Obstacles to Healthy Development. Geneva: The Organization, 1999. http://www.who.int/infectious-disease-report/pages/textonly.html 12 Ibid. 13 BBC News Online. South Africa AIDS crisis worsens. Apr. 19, 2000. http://www.bbc.co.uk/hi/english/health/newsid_719000/719183.stm 14 Richwine L. US declares AIDS a threat to security. National Post May 1, 2000 A1. 15 Ontario Medical Association. Ontario Medical Association Input to Walkerton Inquiry Part II: Protecting the Public’s Health. Toronto. April 2001 16 Koplan JP. Building Infrastructure to Protect the Public’s Health. Public Health Training Network Broadcast September 21, 2001 (Downloaded from Web: October 19, 2001 www.phppo.cdc.gov/documents/KoplanASTHO.pdf ) 17 Dept. of National Defence. Canadian Forces Disaster Assistance Relief Team. BG-99-051 (Amended) October 10, 2001. (Downloaded from Web: October 25, 2001 [www.dnd.ca/eng/archive/2001/oct01/28DART_b_e.htm] 18 Ontario Hospital Reporting System, 2001. Acute Care Occupancy Rates, Ontario Public Hospitals by OHA region, 1999/00. Ontario Ministry of Health and Long Term Care. 19 Bagust A, Place M, Posnett J. Dynamics of bed use in accommodating emergency admissions: stochastic simulation model. BMJ; 319: 155-158 July 17, 1999. 20 Nicolle L. Viruses without borders. Can J Infect Dis Vol. 11, Issue 3, May/June 2000 (Downloaded from Web: October 23, 2001: www.pulsus.com/Infdis/11_03/nico_ed.htm) 21 CIHI. Canadian Institute for Health Information Reports Moderate Rise in Register Nurses Workforce, Fewer RNs Working on Casual Basis, More Working Full-time, Media Release, May 23, 2001. 22 Canadian Medical Association. Specialty Care In Canada: Issue Identification and Policy Challenges, October 2001. 23 Canadian NewsWire. Not enough family-physicians to meet patient needs, October 25, 2001 [www.cnw.ca/releases/October2001/25/c0304.html] 24 Incentive Programs for the Recruitment and Retention of Medical and Dental Officers, http://www.dnd.ca/eng/archive/1999/jul99/05DocIncen_b_e.htm 25 Based on a linkage done by Canadian Institute for Health Information of data from Southam Medical Data Base and the America Medical Association’s Masterfile. 26 Carter K. Royal Commission on Taxation, Canada, 1966. 27 Thompson A. Taxation and Health Policy: A Discussion Paper, August 2001. 28 Letter from Prime Minister Jean Chretien to the Honorable Gary Doer, Premier of Manitoba, Chair, Conference of Premiers, August 4, 2000. 29 Ontario Medical Association. Medical Education Fact Sheet, 2001. 30 Admissions/Student and Equity Affairs, Faculty of Medicine, University of Western Ontario. Budgeting Guide for Medical Students: 1999-2000. 31 Banks no longer banking on earning potential of medical students, Canadian Medical Association Journal, June 12, 2001; 164(12) 1735
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Medication use and seniors (Update 2017)

https://policybase.cma.ca/en/permalink/policy10151
Last Reviewed
2019-03-03
Date
2011-05-28
Topics
Pharmaceuticals/ prescribing/ cannabis/ marijuana/ drugs
  1 document  
Policy Type
Policy document
Last Reviewed
2019-03-03
Date
2011-05-28
Replaces
Medication use and seniors
Topics
Pharmaceuticals/ prescribing/ cannabis/ marijuana/ drugs
Text
Older Canadians represent the fastest-growing segment of our population and are the largest users of prescription drugs. Seniors take more drugs than younger Canadians because, on average, they have a higher number of chronic conditions. According to the Canadian Institute for Health Information, in 2012, nearly two-thirds of seniors had claims for 5 or more drug classes, and more than one-quarter of seniors had claims for 10 or more drug classes. The number of drugs used by seniors increased with age. The use of multiple medications, or polypharmacy, is of concern in the senior population. The risk of drug interactions and adverse drug reactions is several-fold higher for seniors than for younger people. This phenomenon is associated with pharmacokinetic and pharmacodynamics factors in seniors, including changes in renal and hepatic function, increased sensitivity to drugs and, potentially, multiple medical problems. In older persons, adverse drug reactions are often complex and may be the direct cause of hospital admissions for acute care. Cognitive and affective disorders, for example, may be due to adverse reactions to sedatives or hypnotic drugs. Chronic pain is a common issue, and it is important to carry out research into and education for health care providers concerning the unique challenges of managing pain in older adults. The CMA supports the development of a coordinated national approach to reduce polypharmacy and prevent adverse drug reactions. Prescribers must be vigilant to optimize pharmacotherapy and in reconciling medications, taking into consideration physiological changes as a person ages. Deprescribing should be considered, reducing or stopping medications that may be harmful or no longer be of benefit, seeking to improve quality of life. There has been considerable interest in determining which factors affect prescribing behavior and how best to influence these factors. Strategies that improve prescribing practices include evidence-based drug information provided through academic detailing; objective continuing medical education; accessible, user-friendly decision support tools available at point of care; and electronic prescribing systems that allow physicians access to their patient's treatment and medication profiles. The following principles define the basic steps to appropriate prescribing for seniors.
Know the patient.
Know the diagnosis.
Know the drug history. Keep a medication list for each patient and review, update, reconcile and evaluate adherence at each visit. Instruct the patient to bring all prescription and over-the-counter medications, including medications prescribed by other physicians, and natural health products, to each appointment. In some provinces, pharmacists conduct medication use reviews for patients on public drug benefit programs.
Know the history of use of other substances such as alcohol, tobacco, cannabis, opioids and caffeine.
Consider non-pharmacologic therapy, including diet, exercise, psychotherapy or community resources. Continuing medical education in specific non-pharmacologic therapies is valuable. For example, evaluation and management of behavioural and psychological symptoms of dementia should be considered before anti-psychotic therapy. As well, Canadian standardized non-pharmacologic order sets should be developed for the treatment of delirium.
Know the drugs. Critically evaluate all sources of drug information and use multiple sources such as clinical practice guidelines, medical journals and databases, continuing medical education and regional drug information centres. Monitor patients continually for adverse drug reactions. Appropriate drug dosage depends on factors such as age, sex, body size, general health, concurrent illnesses and medications, and hepatic, renal and cognitive function (for example, older people are particularly sensitive to drugs that affect the central nervous system).
Keep drug regimens simple. Avoid mixed-frequency schedules when possible. Try to keep the number of drugs used for long-term therapy under five to minimize the chance of drug interactions and improve adherence.
Establish treatment goals. Determine how the achievement of goals will be assessed. Regularly re-evaluate goals, adequacy of response and justification for continuing therapy. Time to benefit of prescribed medications should be a key consideration when providing care to seniors at end of life.
Encourage patients to be responsible medication users. Verify that the patient and, if necessary, the caregiver, understands the methods and need for medication. Recommend the use of daily or weekly medication containers, calendars, diaries or other reminders, as appropriate, and monitor regularly for compliance. Encourage the use of one dispensary. The Institute for Safe Medication Practices Canada has developed a program, Knowledge is the best medicine (https://www.knowledgeisthebestmedicine.org), that can be helpful to seniors and their healthcare team manage medicines safely and appropriately. Approved by the Board on May 28, 2011 Update approved by the Board on March 02, 2019
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Rural and remote health in Canada : Presentation to the Standing Senate Committee on Social Affairs, Science and Technology

https://policybase.cma.ca/en/permalink/policy2017
Last Reviewed
2019-03-03
Date
2001-05-31
Topics
Health human resources
  1 document  
Policy Type
Parliamentary submission
Last Reviewed
2019-03-03
Date
2001-05-31
Topics
Health human resources
Text
As Secretary General and Chief Executive Officer of the Canadian Medical Association (CMA), I am here today representing our members, more than 50,000 physicians from across Canada. The Association has a two-fold mission, namely to provide leadership for physicians and to promote the highest standards of health and health care for Canadians. The CMA wants to expand significantly on part of its May 16th presentation to this Committee on health human resources. The issue of rural and remote health is of concern to the CMA and we commend the Committee for tackling this complex and very important aspect of Canada's health care system. Our presentation will focus primarily on physician workforce issues in rural and remote practice locations. Most would agree that the health care infrastructure and level of professional support in rural and remote areas of Canada are insufficient to provide appropriate care, and contribute significantly to the difficulty in recruiting and retaining qualified physicians in sufficient numbers (relative to community needs). I will address the following elements: 1. the distribution of physicians practising in rural and remote Canada; 2. their practice profile; 3. what rural physicians are telling us; 4. the CMA Policy on Rural and Remote Practice Issues; and 5. the role for the Federal Government in ensuring reasonable access to health care in these parts of the country. 1. Distribution of physicians practising in rural and remote Canada As you know, Statistics Canada informs us that approximately 25% of Canadians live in rural areas. This number varies from 15% in British Columbia and Ontario to 45% in Atlantic Canada and as high as 60% in the territories. The distribution of physicians is somewhat different. The following data are derived from the CMA physician resources database: * Approximately 10% of Canadian physicians practise outside census metropolitan areas or census agglomerations. This roughly translates to communities of 10,000 or less and for research purposes we consider this cohort to be rural physicians. * There are about 5,700 rural physicians, 87% of which are family physicians. The male/female split is similar to the overall physician pool in Canada but, among those under 35 years of age, half are female. This reflects the current breakdown of the postgraduate output and implies that females are just as likely to seek out rural practice as males. * While Quebec and Ontario are home to almost half of all rural physicians in Canada, Newfoundland has the highest proportion of rural doctors (31%) followed by New Brunswick at 23% and Nova Scotia at 21%. The territories are considered separately since one could argue that even those physicians living in northern cities would be considered to be practising in a remote area. * The majority of rural physicians are graduates of Canadian medical schools (72%) but it varies greatly by region. In Newfoundland, one in three rural physicians is a Canadian graduate; in Saskatchewan, it is only one in five. In contrast, 95% of Quebec rural physicians were trained in this country. 2. Practice profile The CMA routinely surveys the Canadian physician population. Response rates for the surveys mentioned in this brief are shown in Table 1. The following data from CMA's 2000 Physician Resource Questionnaire will be of interest to the Committee: * rural physicians are more likely to be in group practice than urban physicians (68% vs. 58%); * 78% of rural physicians take call (compared to 75% of urban physicians); * excluding their on-call time commitments, rural physicians report spending the same number of hours on direct patient care as urban physicians; * however, rural physicians are on-call for more hours in a month than their urban colleagues; not only do they see more patients while on-call but they also spend more hours providing services; * rural physicians are more likely to be compensated for being on-call, whether it is for carrying a phone or pager (37% are compensated vs 10% of urban physicians) or being available on-site (60% are compensated vs 31% of urban physicians); * while more than half of rural physicians are paid primarily on a fee-for-service basis, proportionately fewer physicians are remunerated this way (53%) compared with 63% of urban physicians. Rural physicians are more likely than their city colleagues to be paid with a salary or some type of blended arrangement. When asked how they would prefer to be paid, 40% selected blended compared to 30% of urban doctors. Less than a third (31%) preferred fee-for-service. Please see Table 2 for an overview of these results. 3. What rural physicians are telling us In the last ten years, in addition to CMA's annual general physician resource questionnaire, two surveys (in 1991 and 1999) were specifically designed to address issues pertaining to physicians practising in rural and remote areas of Canada. I would like to highlight some results from both these surveys. 1991 Survey * Over half of the survey respondents selected desire for rural practice as a very important factor in the decision to locate in a rural area (Figure 1). Only 11% reported financial incentives as being very important. * The physicians who moved from a rural to an urban area were asked about the importance of selected professional considerations (Figure 2). Hours of work was by far the most frequently cited as very important (39%), followed by the need for professional backup (28%) and access to specialty services (24%). * The physicians who moved from a rural to an urban area were asked about the importance of selected personal considerations (Figure 3). Children's educational opportunities was the most frequently cited (by 36%) as very important among the personal considerations, followed by career opportunities for their spouse. * The physicians who moved from a rural to an urban area indicated that there were a number of professional factors that might have influenced them to stay (Figure 4). These factors include additional colleagues (56%), locum tenens (48%), opportunity for group practice (41%) and specialist services (36%). 1999 Survey * In a tracking question from the survey conducted eight years previously, the 1999 survey found that, while rural physicians' level of personal satisfaction with their choice to practise and live in rural communities has remained constant, their level of professional satisfaction - i.e., how they are able to meet the health care needs of their patients - fell significantly since the early 1990s. In a striking example, only 17% reported being very satisfied with the availability of hospital services in 1999 compared to 40% in 1991. * Rural physicians identified the following five factors as being most important in defining their practice community as rural: (1) a high level of on-call duty; (2) the long distance to a community health centre or hospital; (3) lack of services from medical specialists; (4) an insufficient number of family physicians or general practitioners; and (5) the long distance to a teaching hospital (tertiary health care centre). CMA's findings were supported by the 1999 report from Barer and colleagues 1 that identified the following barriers to recruiting and retaining physicians in underserviced communities in Canada: (1) lack of adequate training for the unique circumstances associated with practising medicine in rural environments; (2) remuneration issues; (3) onerous on-call duties and, more generally, heavy workload leading to burnout; (4) professional isolation; (5) lack of spousal employment opportunities; (6) children's education and extracurricular opportunities; (7) climate, recreational and cultural opportunities; and (8) distance from family and friends. CMA 2001 Physician Resource Questionnaire To illustrate some of these findings and highlight some of the positive events, the following quotes are taken from CMA's most recent survey of physicians (the response rate is unavailable for this survey which is still in the field): I know one of the biggest problems my rural colleagues suffer from is lack of locums and difficulty replacing doctors in the community leading to heavier patient loads and responsibilities. This has particularly become worse since medical students have had to choose earlier about specialties with less options to return later. Somehow students and residents should be exposed to more rural medicine. Rural surgical specialists have onerous responsibilities placed upon them with little backup, expectations for 24/7 call coverage ad no financial compensation or recognition for their unwavering devotion to their communities and their profession. My colleagues and I are a dying breed and do not expect that we will be replaced. There is little incentive to practise in a rural environment yet the need continues to grow. Although Fort Frances is rural/remote, we have managed to recruit and retain excellent physicians. We service a catchment area of 22,000 and have 10 MD's on the call rotation. We are an example of how you can live rural/remote, practise interesting medicine and have great quality of life. Most people would think we are over-doctored here but it is the only way we can sustain a healthy lifestyle. Nonetheless the lifestyle of on-call, long irregular hours, and a physician spouse has been hard on the family and relationship. I dream of having regular hours and never having to answer the phone in the middle of the night. 4. CMA Policy on Rural and Remote Practice Issues In October of last year, the CMA released its Policy on Rural and Remote Practice Issues. A copy of this policy is appended to this presentation. The policy contains 28 specific recommendations in the three key areas of training requirements for physicians practising (or wanting to practise) in rural and remote Canada, compensation, and work and lifestyle support issues. The policy illustrates the breadth of issues that need to be addressed before we can hope to alleviate the shortage of the rural physician workforce. The CMA believes that strategies developed to recruit and retain physicians to rural and remote Canada must be comprehensive, flexible and varied to meet and respond to local needs and interests; they must also include, from the outset, community and physician input. The CMA also believes that, as a general rule, these strategies should not be coercive in nature, for example mandatory return-in-service contracts with new medical students. However, this is not to say that strong, positive incentive programs would not work. The Nova Scotia Department of Health, for example, developed a successful incentive program for physicians (including a guaranteed minimum income, a signing bonus and moving expenses, among others) and, importantly, hired a full-time recruiter to implement it. Under this program, 52 physicians were recruited in 1999, 50 in 2000 and 15 so far in 2001; none of these physicians were actively recruited from other Atlantic Canada provinces. There are also examples from the international scene. In Australia, the National Rural Health Strategy involved funding a rural incentives program and the creation of the Australian Rural Health Research Institute (a consortium of five universities with rural campuses). The Australian Journal of Rural Health was also funded through this strategy. The incentive program included relocation grants, grants for continuing medical education and funding for temporary replacements (locums). While this strategy has been well received, there are still many problems of reasonable access to primary care in many parts of rural Australia. In the United States, a financial incentive program, with its roots in the HMO act of 1973, uses an index of medical underservice to determine which areas receive the most funding. The CMA developed an index of rurality in 1999 which could be used in a similar fashion should the federal government decide to become involved in a similar program. 5. Role for the Federal Government The CMA and others have identified a number of issues that need to be addressed to increase physician recruitment and retention in rural and remote Canada. While our presentation appropriately focuses on the physician workforce issue, this situation applies to other health care professions as well. On this note, the CMA has recently embarked on a study, in collaboration with the Society of Rural Physicians of Canada and the Canadian Nurses Association, that will examine the rural workforce of a number of health care professions. We understand that, constitutionally, it is the role and responsibility of the provincial and territorial governments to oversee the provision of health care within their respective jurisdictions. Nonetheless, the CMA has identified five major leadership opportunities for the Federal Government in ensuring that Canadians who live in rural and remote areas have access to appropriate health care. These opportunities are in delivery, evaluation, immigration, planning and funding. Allow me to expand on each of these: i) Delivery: the Federal Government already has a health care delivery role in rural and remote Canada through the Indian and Northern Health Services Directorate of Health Canada. It would be important and valuable to identify lessons learned from this role and share this knowledge with all jurisdictions and players (for example, how physicians can best work with out-post nurses). ii) Evaluation: the CMA applauds the creation of the federal Office of Rural Health within Health Canada. We encourage the Federal Government to expand the role of this office so it can carry out an ongoing evaluation and roll-up of rural health and workforce status; this would become a reliable source of information for researchers, planners and decision-makers. iii) Immigration: in order to meet the short-term health care needs of Canadians, the CMA encourages the Federal Government, through Bill C-11, to develop an immigration policy that is friendly towards qualified international medical graduates. At the same time, any such policy must recognize the need for Canada to strive for reasonable self-sufficiency in the production of physicians. iv) Planning: we need a national planning approach for the short, medium and long term. Again, the CMA encourages the Federal Government to expand the role of its Office of Rural Health, with adequate support and funding, to carry out a comprehensive workforce needs assessment in rural and remote Canada. This information is critical to a successful planning process. v) Funding: finally, there is a role for the Federal Government in funding a mechanism whereby physicians and other health care professionals who want to prepare for practice in rural and remote Canada can obtain the appropriate training and experience. This is one of the main identified barriers to recruitment and retention in rural and remote areas. There is a precedent for the Federal Government in providing one time only funding to create capacity: this was in the 1966 Health Resources Fund Act, whereby the Federal Government funded the creation of new medical schools and the expansion of existing ones. The Federal Government could do the same thing now for the rural and remote workforce capacity. As you know, the Government of Ontario has recently announced the creation of its Northern Ontario Rural Medical School. This begs the question about the rest of the country and opens the door to the Federal Government to work with the Association of Canadian Medical Colleges, the CMA and other relevant medical education organizations to address this issue on a national scale. I want to thank the Committee for inviting us to appear today and we trust that we will have further opportunities to appear before this Committee and work with you during the course of this study. [TABLE CONTENT DOES NOT DISPLAY PROPERLY. SEE PDF FOR PROPER DISPLAY] Table 1 - Response Rates of CMA Surveys to Rural Physicians Year Response rate Sample size of respondents Accuracy level (19 times out of 20) 1991 CMA survey Rural cohort Rural to urban cohort 55% 49% n = 1320 n = 196 +/- 2.7% +/- 7.0% 1999 CMA Rural survey 31% n = 1658 +/- 2.5% 2000 CMA Physician Resource Questionnaire 40% (rural respondents) n = 253 rural respondents +/- 6.2% [TABLE END] [TABLE CONTENT DOES NOT DISPLAY PROPERLY. SEE PDF FOR PROPER DISPLAY] Table 2 - Results of the CMA 2000 Physician Resource Questionnaire Rural Urban Take call 78.3% 75.4% Hours of shared call per month 175 hrs/month 139 hrs/month Patients attended while on call 73 per month 41 per month Hours spent providing service while on call 56 hrs/month 34 hrs/month Group Practice 68.4% 58.2% Remuneration 90%+ professional income from fee-for-service Preference for fee-for-service mode Preference for blended mode 52.6% 30.8% 40.3% 63.0% 38.1% 29.7% [TABLE END] 1 Barer M. et al. Toward Improved Access to Medical Services for Relatively Underserved Populations: Canadian Approaches, Foreign Lessons. Centre for Health Services and Policy Research, University of British Columbia, May 1999.
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Testing of antibiotics

https://policybase.cma.ca/en/permalink/policy10157
Last Reviewed
2018-03-03
Date
2011-08-24
Topics
Pharmaceuticals/ prescribing/ cannabis/ marijuana/ drugs
Health care and patient safety
Resolution
GC11-69
The Canadian Medical Association supports the routine testing of antibiotics manufactured in or imported into Canada to ensure that they all comply with the labelling on the containers.
Policy Type
Policy resolution
Last Reviewed
2018-03-03
Date
2011-08-24
Topics
Pharmaceuticals/ prescribing/ cannabis/ marijuana/ drugs
Health care and patient safety
Resolution
GC11-69
The Canadian Medical Association supports the routine testing of antibiotics manufactured in or imported into Canada to ensure that they all comply with the labelling on the containers.
Text
The Canadian Medical Association supports the routine testing of antibiotics manufactured in or imported into Canada to ensure that they all comply with the labelling on the containers.
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Mentoring of early career physicians

https://policybase.cma.ca/en/permalink/policy10161
Last Reviewed
2018-03-03
Date
2011-08-24
Topics
Health human resources
Physician practice/ compensation/ forms
Resolution
GC11-22
The Canadian Medical Association supports the development of programs that will facilitate the mentoring of early career physicians in their transition to clinical practice by experienced physicians.
Policy Type
Policy resolution
Last Reviewed
2018-03-03
Date
2011-08-24
Topics
Health human resources
Physician practice/ compensation/ forms
Resolution
GC11-22
The Canadian Medical Association supports the development of programs that will facilitate the mentoring of early career physicians in their transition to clinical practice by experienced physicians.
Text
The Canadian Medical Association supports the development of programs that will facilitate the mentoring of early career physicians in their transition to clinical practice by experienced physicians.
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Scopes of practice

https://policybase.cma.ca/en/permalink/policy10162
Last Reviewed
2018-03-03
Date
2011-08-24
Topics
Physician practice/ compensation/ forms
Health human resources
Resolution
GC11-23
The Canadian Medical Association supports physicians engaging in their full scope of practice.
Policy Type
Policy resolution
Last Reviewed
2018-03-03
Date
2011-08-24
Topics
Physician practice/ compensation/ forms
Health human resources
Resolution
GC11-23
The Canadian Medical Association supports physicians engaging in their full scope of practice.
Text
The Canadian Medical Association supports physicians engaging in their full scope of practice.
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Physician recruitment and retention programs

https://policybase.cma.ca/en/permalink/policy10163
Last Reviewed
2018-03-03
Date
2011-08-24
Topics
Health human resources
Health systems, system funding and performance
Resolution
GC11-24
The Canadian Medical Association calls for adequate resources and coordination for the development, implementation and ongoing evaluation of physician recruitment and retention programs.
Policy Type
Policy resolution
Last Reviewed
2018-03-03
Date
2011-08-24
Topics
Health human resources
Health systems, system funding and performance
Resolution
GC11-24
The Canadian Medical Association calls for adequate resources and coordination for the development, implementation and ongoing evaluation of physician recruitment and retention programs.
Text
The Canadian Medical Association calls for adequate resources and coordination for the development, implementation and ongoing evaluation of physician recruitment and retention programs.
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Courses on health system operations and financing

https://policybase.cma.ca/en/permalink/policy10164
Last Reviewed
2018-03-03
Date
2011-08-24
Topics
Health human resources
Health systems, system funding and performance
Resolution
GC11-26
The Canadian Medical Association requests the faculties of medicine to include courses on health system operations and financing in the curricula.
Policy Type
Policy resolution
Last Reviewed
2018-03-03
Date
2011-08-24
Topics
Health human resources
Health systems, system funding and performance
Resolution
GC11-26
The Canadian Medical Association requests the faculties of medicine to include courses on health system operations and financing in the curricula.
Text
The Canadian Medical Association requests the faculties of medicine to include courses on health system operations and financing in the curricula.
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Informed career choices

https://policybase.cma.ca/en/permalink/policy10165
Last Reviewed
2018-03-03
Date
2011-08-24
Topics
Physician practice/ compensation/ forms
Health human resources
Resolution
GC11-28
The Canadian Medical Association will assist physicians during all stages of their career, with special emphasis on helping medical students and residents make informed career choices by providing job-trend data and other career-planning resources.
Policy Type
Policy resolution
Last Reviewed
2018-03-03
Date
2011-08-24
Topics
Physician practice/ compensation/ forms
Health human resources
Resolution
GC11-28
The Canadian Medical Association will assist physicians during all stages of their career, with special emphasis on helping medical students and residents make informed career choices by providing job-trend data and other career-planning resources.
Text
The Canadian Medical Association will assist physicians during all stages of their career, with special emphasis on helping medical students and residents make informed career choices by providing job-trend data and other career-planning resources.
Less detail

Sale of undergraduate training positions

https://policybase.cma.ca/en/permalink/policy10181
Last Reviewed
2018-03-03
Date
2011-08-24
Topics
Ethics and medical professionalism
Health human resources
Resolution
GC11-85
The Canadian Medical Association opposes the sale of undergraduate training positions to foreign students if this practice reduces the opportunities for Canadian applicants or negatively affects their educational experience.
Policy Type
Policy resolution
Last Reviewed
2018-03-03
Date
2011-08-24
Topics
Ethics and medical professionalism
Health human resources
Resolution
GC11-85
The Canadian Medical Association opposes the sale of undergraduate training positions to foreign students if this practice reduces the opportunities for Canadian applicants or negatively affects their educational experience.
Text
The Canadian Medical Association opposes the sale of undergraduate training positions to foreign students if this practice reduces the opportunities for Canadian applicants or negatively affects their educational experience.
Less detail

Techniques of advocacy and leadership

https://policybase.cma.ca/en/permalink/policy10182
Last Reviewed
2018-03-03
Date
2011-08-24
Topics
Health human resources
Physician practice/ compensation/ forms
Resolution
GC11-86
The Canadian Medical Association actively encourages and will facilitate the incorporation of increased formal training in the techniques of advocacy and leadership in the undergraduate and postgraduate medical curricula.
Policy Type
Policy resolution
Last Reviewed
2018-03-03
Date
2011-08-24
Topics
Health human resources
Physician practice/ compensation/ forms
Resolution
GC11-86
The Canadian Medical Association actively encourages and will facilitate the incorporation of increased formal training in the techniques of advocacy and leadership in the undergraduate and postgraduate medical curricula.
Text
The Canadian Medical Association actively encourages and will facilitate the incorporation of increased formal training in the techniques of advocacy and leadership in the undergraduate and postgraduate medical curricula.
Less detail

Postgraduate training positions

https://policybase.cma.ca/en/permalink/policy10188
Last Reviewed
2018-03-03
Date
2011-08-24
Topics
Health human resources
Physician practice/ compensation/ forms
Resolution
GC11-27
The Canadian Medical Association supports the development of a national forum to foster the alignment of postgraduate training positions with current and future societal needs, evolving models of care delivery and available health system resources.
Policy Type
Policy resolution
Last Reviewed
2018-03-03
Date
2011-08-24
Topics
Health human resources
Physician practice/ compensation/ forms
Resolution
GC11-27
The Canadian Medical Association supports the development of a national forum to foster the alignment of postgraduate training positions with current and future societal needs, evolving models of care delivery and available health system resources.
Text
The Canadian Medical Association supports the development of a national forum to foster the alignment of postgraduate training positions with current and future societal needs, evolving models of care delivery and available health system resources.
Less detail

Modern media for the delivery of medical care

https://policybase.cma.ca/en/permalink/policy10198
Last Reviewed
2018-03-03
Date
2011-08-24
Topics
Health human resources
Physician practice/ compensation/ forms
Resolution
GC11-76
The Canadian Medical Association supports inclusion of training in the uses of modern media for the delivery of medical care in undergraduate and postgraduate medical training programs within Canada.
Policy Type
Policy resolution
Last Reviewed
2018-03-03
Date
2011-08-24
Topics
Health human resources
Physician practice/ compensation/ forms
Resolution
GC11-76
The Canadian Medical Association supports inclusion of training in the uses of modern media for the delivery of medical care in undergraduate and postgraduate medical training programs within Canada.
Text
The Canadian Medical Association supports inclusion of training in the uses of modern media for the delivery of medical care in undergraduate and postgraduate medical training programs within Canada.
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Retention strategies

https://policybase.cma.ca/en/permalink/policy10202
Last Reviewed
2018-03-03
Date
2011-08-24
Topics
Health human resources
Physician practice/ compensation/ forms
Resolution
GC11-33
The Canadian Medical Association supports the enhancement of retention strategies for physicians who are nearing retirement.
Policy Type
Policy resolution
Last Reviewed
2018-03-03
Date
2011-08-24
Topics
Health human resources
Physician practice/ compensation/ forms
Resolution
GC11-33
The Canadian Medical Association supports the enhancement of retention strategies for physicians who are nearing retirement.
Text
The Canadian Medical Association supports the enhancement of retention strategies for physicians who are nearing retirement.
Less detail

Process improvement methodologies

https://policybase.cma.ca/en/permalink/policy10204
Last Reviewed
2018-03-03
Date
2011-08-24
Topics
Health systems, system funding and performance
Health human resources
Resolution
GC11-47
The Canadian Medical Association will work to identify how funding can be used to support physicians and physician groups who wish to learn about process improvement methodologies, participate in process improvement initiatives, and become physician champions of such methods and initiatives.
Policy Type
Policy resolution
Last Reviewed
2018-03-03
Date
2011-08-24
Topics
Health systems, system funding and performance
Health human resources
Resolution
GC11-47
The Canadian Medical Association will work to identify how funding can be used to support physicians and physician groups who wish to learn about process improvement methodologies, participate in process improvement initiatives, and become physician champions of such methods and initiatives.
Text
The Canadian Medical Association will work to identify how funding can be used to support physicians and physician groups who wish to learn about process improvement methodologies, participate in process improvement initiatives, and become physician champions of such methods and initiatives.
Less detail

Risk of acetaminophen overdose

https://policybase.cma.ca/en/permalink/policy10209
Last Reviewed
2018-03-03
Date
2011-08-24
Topics
Health care and patient safety
Pharmaceuticals/ prescribing/ cannabis/ marijuana/ drugs
Resolution
GC11-79
The Canadian Medical Association recommends that all over-the-counter preparations containing acetaminophen have a prominent warning on the front of the packaging that informs consumers about the risk of acetaminophen overdose.
Policy Type
Policy resolution
Last Reviewed
2018-03-03
Date
2011-08-24
Topics
Health care and patient safety
Pharmaceuticals/ prescribing/ cannabis/ marijuana/ drugs
Resolution
GC11-79
The Canadian Medical Association recommends that all over-the-counter preparations containing acetaminophen have a prominent warning on the front of the packaging that informs consumers about the risk of acetaminophen overdose.
Text
The Canadian Medical Association recommends that all over-the-counter preparations containing acetaminophen have a prominent warning on the front of the packaging that informs consumers about the risk of acetaminophen overdose.
Less detail

Antibiotics used in the raising of farm animals

https://policybase.cma.ca/en/permalink/policy10211
Last Reviewed
2018-03-03
Date
2011-08-24
Topics
Health care and patient safety
Pharmaceuticals/ prescribing/ cannabis/ marijuana/ drugs
Resolution
GC11-88
The Canadian Medical Association recommends that a prescription from a veterinarian be required for all antibiotics used in the raising of farm animals or for any other agricultural purpose.
Policy Type
Policy resolution
Last Reviewed
2018-03-03
Date
2011-08-24
Topics
Health care and patient safety
Pharmaceuticals/ prescribing/ cannabis/ marijuana/ drugs
Resolution
GC11-88
The Canadian Medical Association recommends that a prescription from a veterinarian be required for all antibiotics used in the raising of farm animals or for any other agricultural purpose.
Text
The Canadian Medical Association recommends that a prescription from a veterinarian be required for all antibiotics used in the raising of farm animals or for any other agricultural purpose.
Less detail

Drug testing in the workplace (Update 2001)

https://policybase.cma.ca/en/permalink/policy194
Last Reviewed
2018-03-03
Date
2001-05-28
Topics
Ethics and medical professionalism
Pharmaceuticals/ prescribing/ cannabis/ marijuana/ drugs
  1 document  
Policy Type
Policy document
Last Reviewed
2018-03-03
Date
2001-05-28
Replaces
Drug testing in the workplace (1992)
Topics
Ethics and medical professionalism
Pharmaceuticals/ prescribing/ cannabis/ marijuana/ drugs
Text
Health and safety in the workplace continue to be areas of concern to the CMA. The CMA recommends that educational programs on the risks of drug-related impairment to health and safety in the workplace be directed toward labour, management and the public in general. Occupations for which impairment resulting from drug use may constitute a serious hazard should be identified and designated as such. The association recommends that supervisors be trained to refer a worker in a safety-sensitive job for a health assessment if the supervisor has reasonable grounds to suspect impairment of the worker. Workers holding safety-sensitive jobs should be educated to report any departure from their usual state of health as well as any drugs (prescribed or otherwise) being taken to the occupational health physician or, in the absence of such, to the physician of the worker's choice. The CMA is opposed to routine pre-employment drug testing. It recommends that random drug testing among employees be restricted to safety-sensitive positions and undertaken only when measures of performance and effective peer or supervisory observation are unavailable. Drug testing should always be conducted in such a way as to protect confidentiality and should be undertaken with the subject's informed consent (except when otherwise required by law). The idea of drug testing among workers has developed from society's concern over the relation between drug use and impairment, with resultant risks to the worker, fellow workers and the public. Education: Since prevention is the principal and ultimate objective the association recommends that educational programs on the risks of impairment to health and safety in the workplace be directed toward labour, management and the public in general. Illicit drugs are not the only ones that may cause impairment. Certain prescription drugs and even some over-the-counter medications may affect a person's ability to carry out professional functions safely; such effects may vary considerably from one person to another. Alcohol is by far the most common impairing drug implicated in accidents; in addition, the scientific literature contains a growing body of information on impairment and dangers resulting from the use and misuse of various therapeutic medications. Far less is documented or known about the role of illicit drugs in work-related accidents. Safety-sensitive occupations: In most workplaces there are occupations for which impairment may constitute a serious hazard. Such occupations should be identified and designated as such. Workers who hold such safety-sensitive jobs must accept the fact that other workers and the public need to be protected from the hazards of impairment, whether from physical or psychologic ill health or from the use of drugs (over-the-counter, prescription or illicit). Performance assessment of safety-sensitive occupations: The CMA recommends that supervisors be trained to refer a worker in a safety-sensitive job for a health assessment if the supervisor has reasonable grounds (e.g., unsatisfactory performance or observed unusual behaviour) to suspect impairment of the worker. The examining physician may recommend that some tests (including tests for the presence of certain drugs) be carried out under pre-agreed protocols. Workers holding safety-sensitive jobs must be educated to report any departure from their usual state of health as well as any drugs (prescribed or otherwise) they may be taking to the occupational health physician or, in the absence of such, to the physician of the worker's choice. Testing: Any discussion of drug testing must take the following into account: If a quantitative test is to be used to determine impairment a limit must be established beyond which a person is deemed to be impaired. However, since the threshold of impairment varies from one person to another this variation should be taken into account when a worker is being assessed. The tests must be valid and reliable. They must be performed only in laboratories accredited for drug testing. The tests must provide results rapidly enough to be useful in deciding whether the person should continue to work. If different testing procedures are available and the differences between the validity and reliability are not significant the least intrusive alternative should be chosen. The test should be conducted in such a way as to ensure confidentiality and should be undertaken with the subject's informed consent (except when otherwise required by law). Pre-employment testing: The CMA opposes routine pre-employment drug testing for the following reasons: Routine pre-employment drug screening may not objectively identify those people who constitute a risk to society. The mass, low-cost screening tests may not be reliable or valid. The circumstances may not justify possible human rights violations. Random testing: The CMA believes that random drug testing among employees has a limited role, if any, in the workplace. Such testing should be restricted to employees in safety-sensitive positions and undertaken only when measures of performance and effective peer or supervisory observation are unavailable. Role of occupational health services: Occupational health physicians must not be involved in a policing or disciplinary role with respect to employee testing. CMA recommends that employers provide a safe environment for all workers. With the help of experts such as those from national and provincial agencies dedicated to dealing with substance abuse occupational health departments should develop lists of drugs known to cause short-term or long-term impairment, including alcohol. These lists should be posted prominently in the workplace, and workers should be advised that in the event of obvious impairment those involved in safety-sensitive occupations will be asked to undergo medical assessment. If testing for drugs is indicated refusal to submit to testing may result in a presumption of noncompliance with the health requirements of the job. Alcohol impairment should not be tolerated, and legislation should be considered that would set a legal blood alcohol level for safety-sensitive occupations. Breathalyzers or other detection methods could be used if alcohol impairment is suspected in a person holding safety-sensitive occupation. As stated previously, refusal to submit to testing may result in a presumption of noncompliance with the health requirements of the job. These measures should be discussed with labour and management. Labour should be expected to recognize drug-related impairment as a serious health and safety issue, and management should demonstrate its concern by ensuring access to treatment, prevention and educational programs such as employee assistance programs.
Documents
Less detail

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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