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47 records – page 2 of 5.

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

https://policybase.cma.ca/en/permalink/policy1956
Last Reviewed
2011-03-05
Date
2004-03-19
Topics
Health systems, system funding and performance
  1 document  
Policy Type
Court submission
Last Reviewed
2011-03-05
Date
2004-03-19
Topics
Health systems, system funding and performance
Text
S.C.C. File No.: 29272 IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE COURT OF APPEAL OF QUEBEC) B E T W E E N: JACQUES CHAOULLI AND GEORGE ZELIOTIS Appellants (Appellants) - and - ATTORNEY GENERAL OF QUÉBEC Respondent (Respondent) - and - ATTORNEY GENERAL OF CANADA Respondent (Mis en cause) - and - ATTORNEY GENERAL OF BRITISH COLUMBIA, ATTORNEY GENERAL OF ONTARIO, ATTORNEY GENERAL OF MANITOBA, ATTORNEY GENERAL OF NEW BRUNSWICK, ATTORNEY GENERAL OF SASKATCHEWAN, AUGUSTIN ROY, SENATOR MICHAEL KIRBY, SENATOR MARJORY LEBRETON, SENATOR CATHERINE CALLBECK, SENATOR JOAN COOK, SENATOR JANE CORDY, SENATOR JOYCE FAIRBAIRN, SENATOR WILBERT KEON, SENATOR LUCIE PÉPIN, SENATOR BRENDA ROBERTSON AND SENATOR DOUGLAS ROCHE, THE CANADIAN MEDICAL ASSOCIATION AND THE CANADIAN ORTHOPAEDIC ASSOCIATION, CANADIAN LABOUR CONGRESS, CHARTER COMMITTEE ON POVERTY ISSUES AND THE CANADIAN HEALTH COALITION, CAMBIE SURGERIES CORPORATION, FALSE CREEK SURGICAL CENTRE INC., DELBROOK SURGICAL CENTRE INC., OKANAGAN PLASTIC SURGERY CENTRE INC., SPECIALTY MRI CLINICS INC., FRASER VALLEY MRI LTD., IMAGE ONE MRI CLINIC INC., MCCALLUM SURGICAL CENTRE LIMITED, 4111044 CANADA INC., SOUTH FRASER SURGICAL CENTRE INC., VICTORIA SURGERY LTD., KAMLOOPS SURGERY CENTRE LTD., VALLEY COSMETIC SURGERY ASSOCIATES INC., SURGICAL CENTRES INC., THE BRITISH COLUMBIA ORTHOPAEDIC ASSOCIATION AND THE BRITISH COLUMBIA ANESTHESIOLOGISTS SOCIETY Interveners FACTUM OF THE INTERVENERS CANADIAN MEDICAL ASSOCIATION AND THE CANADIAN ORTHOPAEDIC ASSOCIATION BORDEN LADNER GERVAIS LLP World Exchange Plaza 1100 – 100 Queen St. Ottawa, Ontario K1P 1J9 Guy Pratte/Freya Kristjanson Tel: (613) 237-5160/(416) 367-6388 Fax: (613) 230-8842/(416) 361-7053 Net: gpratte/fkristjanson@blgcanada.com Solicitors for the Interveners, The Canadian Medical Association and The Canadian Orthopaedic Association AND TO: JACQUES CHAOULLI 21, Jasper Avenue Ville Mont-Royal, Quebec H3P 1J8 Tel.: (514) 738-2377 Fax: (514) 738-4062 Appellant, self-represented AND TO: BERGERON, GAUDREAU, LAPORTE 167, rue Notre Dame de l’Île Gatineau, Quebec J8X 3T3 Richard Gaudreau Tel: (819) 770-7928 Fax: (819) 770-1424 Agent for the Appellant, Jacques Chaoulli AND TO: TRUDEL & JOHNSTON 85, de la Commune Est, 3e étage Montreal, Quebec H2Y 1J1 Philippe H. Trudel Bruce W. Johnston Tel.: (514) 871-8385 Fax: (514) 871-8800 Counsel for the Appellant, George Zéliotis AND TO: MCCARTHY TÉTRAULT LLP 1400 - 40 Elgin Street Ottawa, Ontario K1R 5K6 Colin S. Baxter Tel.: (613) 238-2000 Fax: (613) 238-9836 Agent for the Appellant, George Zéliotis AND TO: BERNARD, ROY ET ASSOCIÉS 8.01 - 1, rue Notre-Dame Est Montreal, Québec H2Y 1B6 Robert Monette Tel.: (514) 393-2336 Fax: (514) 873-7074 Counsel for the Respondent, Attorney General of Québec AND TO: NOËL & ASSOCIÉS 111, rue Champlain Hull, Quebec J8X 3R1 Sylvie Roussel Tel.: (819) 771-7393 Fax: (819) 771-5397 Agent for the Respondent, Attorney General of Quebec AND TO: CÔTE, MARCOUX & JOYAL Complexe Guy Favreau, Tour Est 200, boul. Rene-Levesque O. 5 etage Montréal, Québec H2Z 1X4 André L’Espérance Tel: (514) 283-3525 Fax: (514) 283-3856 Counsel for the Respondent, Attorney General of Canada AND TO: D’AURAY, AUBRY, LEBLANC & ASSOCIÉS 275, rue Sparks Ottawa, Ontario K1A 0H8 Jean-Marc Aubry, Q.C. Tel.: (613) 957-4663 Fax: (613) 952-6006 Agent for the Respondent, Attorney General of Canada AND TO: MINISTRY OF ATTORNEY GENERAL Legal Services Branch 6th Floor, Sussex Building P.O. Box 9280 Stn Prov Govt 1001 Douglas Street Victoria, B.C. V8W 9J7 George H. Copley, Q.C. Tel: (250) 356-8875 Fax: (250) 356-9154 Counsel for the Intervener, Attorney General of British Columbia AND TO: BURKE-ROBERTSON Barristers and Solicitors 70 Gloucester Street Ottawa, Ontario K2P 0A2 Robert E. Houston, Q.C. Tel: (613) 236-9665 Fax: (613) 235-4430 Agent for the Intervener, Attorney General of British Columbia AND TO: ATTORNEY GENERAL OF ONTARIO 720 Bay Street, 4th Floor Toronto, Ontario M5G 2K1 Janet E. Minor Shaun Nalatsuru Tel: (416) 326-4137 Fax: (416) 326-4015 Counsel for the Intervener, Attorney General of Ontario AND TO: BURKE-ROBERTSON Barristers and Solicitors 70 Gloucester Street Ottawa, Ontario K2P 0A2 Robert E. Houston, Q.C. Tel: (613) 236-9665 Fax: (613) 235-4430 Agent for the Intervener, Attorney General of Ontario AND TO: ATTORNEY GENERAL OF MANITOBA Department of Justice 1205-405 Broadway Winnipeg, Manitoba R3C 3L6 Tel: (204) 945-0679 Fax: (204) 945-0053 AND TO: GOWLING LAFLEUR HENDERSON LLP 2600-160 Elgin Street P.O. Box 466, Stn. “D” Ottawa, Ontario K1P 1C3 Henry S. Brown, Q.C. Tel: (613) 233-1781 Fax: (613) 563-9869 Agent for the Intervener, Attorney General of Manitoba AND TO: ATTORNEY GENERAL OF NEW BRUNSWICK P.O. Box 6000, Room 444 670 King St., Centennial Building Fredericton, N.B. E3B 5H1 Gabriel Bourgeois, Q.C. Tel: (506) 453-3606 Fax: (506) 453-3275 Counsel for the Intervener, Attorney General of New Brunswick AND TO: GOWLING LAFLEUR HENDERSON LLP 2600-160 Elgin Street P.O. Box 466, Stn. “D” Ottawa, Ontario K1P 1C3 Henry S. Brown, Q.C. Tel: (613) 233-1781 Fax: (613) 563-9869 Agent for the Intervener, Attorney General of New Brunswick AND TO: ATTORNEY GENERAL OF SASKATCHEWAN Constitutional Law Branch 8th Floor – Scarth Street Regina, Saskatchewan S4P 3V7 Tel: (306) 787-8385 Fax: (306) 787-9111 AND TO: GOWLING LAFLEUR HENDERSON LLP 2600-160 Elgin Street P.O. Box 466, Stn. “D” Ottawa, Ontario K1P 1C3 Henry S. Brown, Q.C. Tel: (613) 233-1781 Fax: (613) 563-9869 Agent for the Intervener, Attorney General of Saskatchewan AND TO: AUGUSTIN ROY AND TO: BERGERON, GAUDREAU, LAPORTE 167, rue Notre Dame de l’Île Gatineau, Quebec J8X 3T3 Richard Gaudreau Tel: (819) 770-7928 Fax: (819) 770-1424 Agent for the Intervener, Augustin Roy AND TO: LERNERS LLP 2400 - 130 Adelaide Street West Toronto , Ontario M5H 3P5 Earl A. Cherniak, Q.C. Tel: (416) 867-3076 Fax: (416) 867-9192 Counsel for the Interveners, Senator Michael Kirby, Senator Marjory Lebreton, Senator Catherine Callbeck, Senator Joan Cook, Senator Jane Cordy, Senator Joyce Fairbairn, Senator Wilbert Keon, Senator Lucie Pépin, Senator Brenda Robertson and Senator Douglas Roche AND TO: GOWLING LAFLEUR HENDERSON LLP 2600-160 Elgin Street P.O. Box 466, Stn. “D” Ottawa, Ontario K1P 1C3 Brian A. Crane, Q.C. Tel: (613) 233-1781 Fax: (613) 563-9869 Agents for the Interveners, Senator Michael Kirby, Senator Marjory Lebreton, Senator Catherine Callbeck, Senator Joan Cook, Senator Jane Cordy, Senator Joyce Fairbairn, Senator Wilbert Keon, Senator Lucie Pépin, Senator Brenda Robertson and Senator Douglas Roche AND TO: SACK GOLDBLATT MITCHELL 20 Dundas Street West Suite 1130, P.O. Box 180 Toronto, Ontario M5G 2G8 Steven Shrybman Tel: (416) 977-6070 Fax: (416) 591-7333 Counsel for the Intervener, Canadian Labour Congress AND TO: BURKE-ROBERTSON Barristers and Solicitors 70 Gloucester Street Ottawa, Ontario K2P 0A2 Robert E. Houston, Q.C. Tel: (613) 236-9665 Fax: (613) 235-4430 Agent for the Intervener, Canadian Labour Congress AND TO: UNIVERSITY OF VICTORIA P.O. Box 2400, Station CSC Victoria , British Columbia V8W 3H7 Martha Jackman Tel: (250) 721-8181 Fax: (250) 721-8146 Counsel for the Interveners, Charter Committee on Poverty Issues and the Canadian Health Coalition AND TO: LANG MICHENER 300-50 O’Connor Street Ottawa , Ontario K1P 6L2 Marie-France Major Tel: (613) 232-7171 Fax: (613) 231-3196 Agent for the Interveners, Charter Committee on Poverty Issues and the Canadian Health Coalition AND TO: BLAKE, CASSELS & GRAYDON LLP Suite 2600, Three Bentall Centre 595 Burrard Street, P. O Box 49314 Vancouver, B. C. V7X 1L3 Marvin R.V. Storrow, Q.C. Tel: (604) 631-3300 Fax: (604) 631-3309 Counsel for the Interveners, Cambie Surgeries Corporation, False Creek Surgical Centre Inc., Delbrook Surgical Centre Inc., Okanagan Plastic Surgery Centre Inc., Specialty MRI Clinics Inc., Fraser Valley MRI Ltd., Image One MRI Clinic Inc., McCallum Surgical Centre Limited and 4111044 Canada Inc., South Fraser Surgical Centre Inc., Victoria Surgery Ltd., Kamloops Surgery Centre Ltd., Valley Cosmetic Surgery Associates Inc., Surgical Centres Inc., the British Columbia Orthopaedic Association and the British Columbia Anesthesiologists Society AND TO: BLAKE, CASSELS & GRAYDON LLP World Exchange Plaza 20th Floor, 45 O’Connor Ottawa, Ontario K1P1A4 Gordon K. Cameron Tel: (613) 788-2222 Fax: (613) 7882247 Agent for the Interveners, Cambie Surgeries Corporation, False Creek Surgical Centre Inc., Delbrook Surgical Centre Inc., Okanagan Plastic Surgery Centre Inc., Specialty MRI Clinics Inc., Fraser Valley MRI Ltd., Image One MRI Clinic Inc., McCallum Surgical Centre Limited and 4111044 Canada Inc., South Fraser Surgical Centre Inc., Victoria Surgery Ltd., Kamloops Surgery Centre Ltd., Valley Cosmetic Surgery Associates Inc., Surgical Centres Inc., the British Columbia Orthopaedic Association and the British Columbia Anesthesiologists Society TABLE OF CONTENTS PART I: FACTS 1 1. Overview 1 2. CMA/COA’s Interest in the Appeal 2 3. CMA/COA’s Position on the Facts 3 PART II: QUESTIONS IN ISSUE 8 PART III: ARGUMENT 8 1. Breach of Section 7 of the Charter 8 (a) Right to Life and Security of the Person 9 (i) Infringement of Life and Security of the Person 9 (ii) Real Apprehension of Charter Section 7 Violation 10 (b) Principles of Fundamental Justice 11 (c) Not an Economic Right 15 2. Not Saved Under Charter Section 1 17 PART IV: SUBMISSIONS CONCERNING COSTS 18 PART V: ORDER SOUGHT 19 PART VI: TABLE OF AUTHORITIES 20 PART VII: STATUTES AND REGULATIONS 22 PART I: FACTS 1. Overview 1. The Canadian Medical Association (“CMA”) and the Canadian Orthopaedic Association (“COA”) support the existing single payer (publicly funded) model of health care delivery, but are concerned that delays in access to medically necessary health care may put the life and health of patients in Canada at risk. The CMA/COA submit that governments must address the issue of timeliness of access to health care if they wish to maintain the viability and constitutionality of the social contract that is Medicare. 2. The CMA/COA put forward a position that they believe best protects the public health care system, while at the same time recognizing that failures in that system which threaten the life, liberty and security of the person of patients in Canada may constitute a Charter section 7 breach. The CMA/COA submit that so long as access to medically necessary care is provided in a timely manner, there is no Charter section 7 breach. In the absence of a clear commitment to timely access and where as a matter of fact the public system fails to provide timely access to medically necessary health care, legislative prohibitions that impede access or the means for access to medical treatment necessary to the life, liberty and security of the person do breach Charter section 7. 3. The fundamental issue in this case is whether it is constitutionally justifiable for governments to legislatively preclude a patient from seeking access or the means for access to medical treatment necessary to the life, liberty and security of the person, when such treatment is not available in a timely manner in the public system by reason of significant waiting times, under-funding, inadequate human and physical resources, or other impediments. 4. The purpose and effect of the matrix of federal and provincial statutes applicable to Medicare is to establish the public health care system as the sole payer of medically necessary (“insured”) services. In Québec, for example, the government defines what constitute medically necessary services, pays for all insured service provided to residents of Québec, sets out the conditions under which the insured services may be funded outside the province, and otherwise forbids by law the provision of private insurance for such insured services. While the Québec government has legislated to provide medically necessary care, the legislation does not extend to the provision of timely access to medically necessary care. It is this disjunction which has caused the CMA/COA to intervene in this case. Governments are not held accountable for the failure to provide medically necessary services in a timely manner in the public system. 5. This is not a case of economic rights because in the context of health care any clinically excessive delay can have profound consequences on both the physical and psychological aspects of a person’s life and security of the person. The CMA/COA, as physicians, submit that it is the impact of the deterioration of the public health care system to the point that it cannot deliver timely access to Canadians that is the heart of the issue. In this context, “timely access” refers to the delivery of care within a medically appropriate timeframe. Medically necessary health care delayed is health care denied. 2. CMA/COA’s Interest in the Appeal 6. The CMA is the national voice of Canadian physicians, with over 57,000 members in each of the ten provinces and the three territories. Its mission is to serve and unite the physicians of Canada, and to be the national advocate, in partnership with the people of Canada, for the highest standards of health and health care. An affiliate of the CMA, the COA is a voluntary medical speciality society of physicians with specialized training and certification in orthopaedic surgery. The COA’s goals are to achieve excellence in orthopaedic care for Canadians, in part through ensuring that adequate and accessible health care resources are available for Canadians. 7. The CMA/COA are committed to the fundamental principles of the national system of Medicare – comprehensiveness, universality of coverage, portability of benefits, reasonable access and non-profit administration. Furthermore, the CMA Code of Ethics, article 31, states that physicians should “recognize the responsibility of physicians to promote fair access to health care resources”. However, excessive waiting times in the public system threaten the viability of Medicare unless and until governments clearly commit to and factually do provide timely access. The decision of this Court will have a profound and lasting effect on the Canadian health care system, of which physicians are an integral part. It will directly affect the conditions under which patients receive treatment from physicians and other providers. Canadian Medical Association, Code of Ethics of the Canadian Medical Association, (Ottawa: The Association), October 1996, CMA/COA Authorities, Tab 17 3. CMA/COA’s Position on the Facts 8. Madam Justice Piché found at trial that if access to the health system is not possible, it is illusory to think that rights to life and security are respected. She further found that the prohibition on the purchase of private insurance is an infringement of life and security of the person where there are excessive waiting times for essential medical services in the public system. The trial judge found that waiting lists are too long and that, even if the question is not always one of life or death, all individuals are entitled to receive the care they need in a clinically responsive manner. She held, however, that the infringement did not violate fundamental justice given the historical context and the social benefits to all of a publicly funded health care system. Judgment of Piché J., Joint Appellants’ Record, Vol. I, pp. 126-127, 129, 134-135, 143 9. More recently, the serious issue of waiting times for medically necessary health care has been considered by two major national studies – the Canadian Commission on the Future of Health Care in Canada (the “Romanow Commission”) and the Report of the Standing Senate Committee on Social Affairs, Science and Technology (“the Senate Committee”). Each of these significant reports concluded that excessive waiting times exist across the country, that governments have available a number of tools to address such waiting times which are not being used to their fullest extent, and that delays in access to medically necessary services may cause the health of patients to deteriorate, as well as stress and anxiety. Canada, Commission on the Future of Health Care in Canada, Building on Values: The Future of Health Care in Canada – Final Report, (Ottawa, 2002) (Chair: Roy Romanow) at 137-150 [hereinafter Romanow, Building on Values], CMA/COA Authorities, Tab 15 Canada, The Standing Senate Committee on Social Affairs, Science and Technology, The Health of Canadians – The Federal Role: Final Report on the State of the Health Care System in Canada, Vol. 6 (Ottawa: 2002) (Chair: Michael Kirby) at 99-121 [hereinafter Kirby, The Health of Canadians, Vol. 6], CMA/COA Authorities, Tab 16 10. The CMA/COA recognize that wait times for diagnosis and treatment are intrinsic to a health care system. No country has sufficient resources at its disposal to build the excess capacity necessary to meet all health needs on an urgent basis. However, excessive wait times emerged as a major public policy issue starting in the mid- to late-1990s following several years of cuts in the financing of public health care. Moreover, public anxiety has been mounting over lengthening wait times for treatment. Public confidence in the system “being there” at the time and to the extent of need is gradually being lost. Kirby, The Health of Canadians, Vol. 6, supra at 109-111, CMA/COA Authorities, Tab 16 11. The Senate Committee cited with approval a recent Statistics Canada study, entitled Access to Health Care Services in Canada, 2001, that provides an indication of the extent to which Canadians are subject to waiting times and the associated stress and anxiety: * Almost one in five Canadians who access health care for themselves or a family member in 2001 encountered some form of difficulty, ranging from problems getting an appointment to lengthy waiting times. * Of the estimated five million people who visited a specialist, roughly 18 %, or 900,000, reported that waiting for care affected their lives. The majority of these people (59 per cent) reported worry, anxiety or stress. About 37 % said they experienced pain. * Canadians reported that waiting for services was clearly a barrier to care. Long waits were clearly not acceptable to Canadians, particularly when they experienced adverse effects such as worry and anxiety or pain while waiting for care. Statistics Canada, Access to Health Care Services in Canada, 2001 by C. Sanmartin, C. Houle, J.-M. Berthelot and K. White, (Ottawa, Minister of Industry, 2002) [hereinafter Statistics Canada, Access to Health Care], cited in Kirby, The Health of Canadians, Vol. 6, supra at 109, CMA/COA Authorities, Tab 21 12. The Statistics Canada report concluded that: Perhaps the most significant information regarding access to care was about waiting times. … Long waits were clearly not acceptable to Canadians, particularly when they experienced adverse affects such as worry and anxiety or pain while waiting for care. Statistics Canada, Access to Health Care, supra at 21, cited in Kirby, The Health of Canadians, Vol. 6, supra at 109, CMA/COA Authorities, Tab 21 13. Furthermore, the Romanow Report acknowledged the problem that Canadian patients and their physicians are faced with: Waiting for health care is a serious concern for Canadians and it has become a preoccupation for health care professionals, managers, and governments. Studies and public opinion polls have consistently shown that one of the top concerns of rural and urban Canadians is health care access… Long waiting times are the main, and in many cases, the only reason some Canadians say they would be willing to pay for treatment outside of the public health care system… As individual provinces and territories have struggled to deal with waiting times and wait lists within their own systems, progress is being made in some areas but more effort needs to be put into generalizing those efforts across the country… Clearly, the progress is not fast enough for Canadians. More can and must be done across the country to give Canadians what they want and deserve - timely access to health care services they need. Romanow, Building on Values, supra at 138-139, CMA/COA Authorities, Tab 15 14. Following its review of the Canadian health care system, the Senate Committee concluded on the issue of waiting time that: In Canada, patient prioritization is not standardized for any medical service (with the exception of [the Cardiac Care Network] in Ontario). This means that there is currently no provincially or nationally accepted method of measuring or defining waiting times for medical services, nor are there standards and criteria for “acceptable” waits for the vast majority of health services. It is impossible, therefore, to determine whether, from a clinical point of view, patients have waited a reasonable or unreasonable length of time to access care. The absence of standardized criteria and methods to prioritize patients waiting for care means that patients are placed and prioritized on waiting lists based on a range of clinical and non-clinical criteria that vary by individual referring physician across institutions, regional health authorities, and provinces. Kirby, The Health of Canadians, Vol. 6, supra at 112, CMA/COA Authorities, Tab 16 15. The Romanow Commission concluded on the issue of current problems with wait lists: One of the most serious concerns is not only the length of time some people wait but the way in which wait lists are managed. In fact, to say wait lists are “managed” is almost a misnomer. There is no consistent way of dealing with wait lists in particular regions let alone on a provincial or national basis. This affects the health of people who wait and it seriously undermines Canadians’ confidence in their health care system. When individual Canadians are told that they are on a wait list for a particular service, they probably assume that there is a master list that is managed and co-ordinated based on the urgency of their need. In reality, that is not what happens. Romanow, Building on Values, supra at 141-143, CMA/COA Authorities, Tab 15 16. Recent international surveys also indicate that the waiting times and access to care for patients who make heavy use of the health care system are markedly poorer in Canada than in four other Western countries. R.J. Blendon et al., “Common concerns Amid Diverse Systems: Health Care Experiences in Five Countries” (2003), 22 Health Affairs 106, CMA/COA Authorities, Tab 14 17. On the international scene, since at least the early 1990’s, mechanisms to address excessive wait times including access standards and care guarantees have been the subject of study, debate and practice in several jurisdictions including the United Kingdom, Sweden and New Zealand. The Organisation for Economic Co-operation and Development (OECD) commissioned a comprehensive study of the international experience with access standards and care guarantees. OECD, Labour and Social Affairs Committee, Tackling Excessive Waiting Times for Elective Surgery: A Comparison of Policies in Twelve OECD Countries, Doc. No. DELSA/ELSA/WD/HEA(2003)6 (2003), CMA/COA Authorities, Tab 19 OECD, Labour and Social Affairs Committee, Explaining Waiting Times Variations for Elective Surgery Across OECD Countries, Working Paper No. 7, Doc. No. DELSA/ELSA/WD/HEA(2003)7 (2003), CMA/COA Authorities, Tab 18 18. While the federal government has never taken the position that timeliness is a component of accessibility, such a position is certainly open to it. The Canada Health Act has established five criteria pursuant to which the federal government will cost-share provincial Medicare programs: portability, comprehensiveness, universality, public administration, and accessibility. “Accessibility” has been interpreted to require that there be no financial barriers to accessing hospital and physician services. Canada Health Act, R.S.C. 1985, c. C-6, s. 7, 12 19. The CMA proposed to the Senate Committee that guidelines and standards around quality and waiting times be established for a clearly defined basket of core services, and argued that “if the publicly funded health care system fails to meet the specified agreed-upon standards for timely access to core services, then patients must have other options to allow them to obtain this required care through other means.” Kirby, The Health of Canadians, Vol. 6, supra at 119, CMA/COA Authorities, Tab 16 20. There are concrete Canadian examples of how timely access may be measured and provided such as the Cardiac Care Network of Ontario, and the Western Canada Waiting List Project, both of which are reviewed in the Senate Committee Report. These projects have demonstrated that a substantial improvement in the waiting list problem is possible through adopting an approach based on the clinical needs of patients on waiting lists. The Senate Committee suggested: * A process to establish standard definitions for waiting times should be national in scope, and * Standard definitions should focus on four key waiting periods – waiting for primary care consultation; for initial specialist consultation; for diagnostic tests; and for surgery. Kirby, The Health of Canadians, Vol. 6, supra at 103-113, CMA/COA Authorities, Tab 16 Romanow, Building on Values, supra at 143-144, CMA/COA Authorities, Tab 15 PART II: QUESTIONS IN ISSUE 21. The CMA/COA take a position on the following constitutional questions as stated by this Court in its Order of August 15, 2003: (1) Does s. 11 of the Hospital Insurance Act, R.S.Q., c. A-28, infringe the rights guaranteed by s. 7 of the Canadian Charter of Rights and Freedoms? (2) If so, is the infringement a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society under s. 1 of the Canadian Charter of Rights and Freedoms? (3) Does s. 15 of the Health Insurance Act, R.S.Q., c. A-29, infringe the rights guaranteed by s. 7 of the Canadian Charter of Rights and Freedoms? (4) If so, is the infringement a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society under s. 1 of the Canadian Charter of Rights and Freedoms? 22. The CMA/COA submit that if there is a clear commitment from governments which provides timely access to medically necessary care, there is no constitutional breach. However, constitutional questions #1 and 3, should be answered affirmatively if a patient is denied timely access to health care in the public system with the result that the patient’s life is threatened or the quality of his/her life substantially compromised, and that patient is legislatively precluded from seeking access or the means for access to medically necessary treatment. In this event, the corresponding questions #2 and 4 should be answered negatively. PART III: ARGUMENT 1. Breach of Section 7 of the Charter 23. The analytical approach to be used under section 7 of the Charter has recently been described by this Honourable Court as a three-step process: 1) the identification of the individual interests said to be infringed and a determination of whether those interests fall within the meaning of the phrase “life, liberty and security of the person;” 2) the identification of the principles of fundamental justice engaged in the circumstances of the case; and, 3) whether the threshold infringement found in the first stage of the analysis is inconsistent with the pertinent principle of fundamental justice. R v. Malmo-Levine; R. v. Caine, 2003 SCC 74 at para. 83 [hereinafter Malmo-Levine], CMA/COA Authorities, Tab 10 (a) Right to Life and Security of the Person 24. The CMA/COA submit that when a patient is denied timely access to health care in the publicly funded system with the result that the patient’s life is threatened or the quality of her life substantially compromised, and that patient is legislatively precluded from seeking access or the means for access to medically necessary treatment, the infringement of the rights to life and/or security of the person is clear. However, where the health care service at issue is not essential to maintaining quality and quantity of life, and the delay in accessing that treatment is not clinically significant, then the values and principles reflected in Charter section 7 are not engaged. 25. “Timely access” to health care refers to the delivery of care within a medically appropriate time frame. As discussed in paragraph 20, there are existing Canadian and international initiatives to develop and refine medically appropriate time frames. (i) Infringement of Life and Security of the Person 26. In the context of health care, any clinically excessive delay can have profound consequences on both the physical and psychological aspects of a patient’s life and security of the person. OECD, Labour and Social Affairs Committee, Tackling Excessive Waiting Times for Elective Surgery: A Comparison of Policies in Twelve OECD Countries Annex 1, Doc. No. DELSA/ELSA/WD/HEA(2003)6/ANN1 (2003), CMA/COA Authorities, Tab 20 27. The CMA/COA submit that delay in the medical context, when caused by government laws and policies, may clearly threaten an individual’s life and security of the person. The significance of government-caused delay in the criminal context was recognized in R. v. Morgentaler. Chief Justice Dickson, as he then was, in R. v. Morgentaler found that the increased risk to a woman’s health resulting from the delay caused by the government procedures in obtaining an abortion deprived her of her security of the person. Justice Beetz recognized the additional danger to a woman’s health caused by the state’s intervention which prevented “access to effective and timely medical treatment.” R. v. Morgentaler, [1988] 1 S.C.R. 30 at 59, 101 [hereinafter Morgentaler], CMA/COA Authorities, Tab 11 28. The infringement of a person’s security is not restricted to the physical aspect. State interference with bodily integrity and serious state-imposed psychological stress also constitute a breach of security of the person. There must be an objective assessment of state interference “on the psychological integrity of a person of reasonable sensibility.” It requires more than ordinary stress and anxiety, but does not need to escalate to the level of nervous shock or psychiatric illness. New Brunswick (Minister of Health and Community Services) v. G.(J.), [1999] 3 S.C.R. 46 at para. 60 [hereinafter New Brunswick], CMA/COA Authorities, Tab 7 Morgentaler, supra at 60, CMA/COA Authorities, Tab 11 29. The failure to obtain timely health care may have a serious and profound effect on an individual well beyond the normal stress and anxiety of life. Where there is an increased risk to both physical and mental health resulting from excessive delay in obtaining medically necessary health care, a deprivation of security of the person and significant diminution in the quality and quantity of life will ensue. (ii) Real Apprehension of Charter Section 7 Violation 30. The evidence before the trial judge supports a finding that there is a real apprehension of a violation of Charter section 7 rights. At trial, Piché J. heard evidence from more than fifteen witnesses, including both expert physicians and professors, as well as patients who have been intimately involved with the public health care system. A large quantity of evidence was presented on the delays in access to health care, and its consequences in such fields as orthopaedics, ophthalmology, oncology, cardiology and emergency care. She concluded: De ces témoignages, le Tribunal retient d’abord la sincérité et l’honnêteté des médecins qui ont témoigné, de leur désir de changer les choses, de leur impuissance malheureuse devant des listes d’attente trop longues. Le Tribunal retient que les listes d’attente sont trop longues, que même si ce n’est pas toujours une question de vie ou de mort, tous les citoyens ont droit à recevoir les soins dont ils ont besoin, et ce, dans les meilleurs délais. Judgment of Piché J., Joint Appellants’ Record, Vol. I, pp. 42, 43 31. The CMA/COA submit that deference must be paid to the findings of fact of the trial judge. In the alternative, the CMA/COA submit that this Court has before it all the necessary evidentiary support in order to make the determination on reasonable hypothetical circumstances. The protection under the Charter embodies a preventative aspect when a violation is apprehended, as observed by the trial judge. As Justice Forget at the Court of Appeal held: Obliger une personne à attendre d’être gravement malade (ou d’avoir subi un grave accident) avant d’entreprendre des procédures pour obtenir des soins adéquats de santé aurait pour effet, dans la majorité des cas, de rendre illusoire le recours, compte tenu de l’imprévisibilité de la maladie et de son évolution. Judgment of Court of Appeal, Forget J., Joint Appellants’ Record, Vol. I, p. 187 New Brunswick, supra at paras. 56-68 and 91, CMA/COA Authorities, Tab 7 32. The CMA/COA submit that this Honourable Court should not be waiting for, in the words of the trial judge, “une question de vie ou de mort” before acting. Cases such as Stein v. Québec (Régie de l’Assurance-maladie) demonstrate that timely access to necessary medical care is a real concern. Failures of timely access pose a significant risk to s. 7 rights. Stein v. Québec (Régie de l’Assurance-maladie), [1999] Q.J. No. 2724 (S.C.), CMA/COA Authorities, Tab 13 (b) Principles of Fundamental Justice 33. The section 7 analysis then turns to the principles of fundamental justice which are found in “the basic tenets of our legal system.” The objective of the Health Insurance Act is to regulate the single payer (publicly funded) Medicare system in Québec. The CMA/COA are committed to a sustainable health care system which provides for timely and fair access to medically necessary care. All aspects of health care are intrinsically linked to time – prevention, diagnosis, treatment, and follow up – yet there is no commitment from governments to timeliness as a core aspect of the provision of health care. As a result, the CMA/COA submit the legislation violates principles of fundamental justice due to arbitrariness and irrationality. Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486 at 512, CMA/COA Authorities, Tab 8 34. This Honourable Court has identified the three criteria that must be fulfilled in order to establish a principle of fundamental justice: First, it must be a legal principle. This serves two purposes. First, it "provides meaningful content for the s. 7 guarantee"; second, it avoids the "adjudication of policy matters": Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, at p. 503. Second, there must be sufficient consensus that the alleged principle is "vital or fundamental to our societal notion of justice": Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519, at p. 590. The principles of fundamental justice are the shared assumptions upon which our system of justice is grounded. They find their meaning in the cases and traditions that have long detailed the basic norms for how the state deals with its citizens. Society views them as essential to the administration of justice. Third, the alleged principle must be capable of being identified with precision and applied to situations in a manner that yields predictable results. Examples of principles of fundamental justice that meet all three requirements include the need for a guilty mind and for reasonably clear laws. Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), 2004 SCC 4 at para. 8, CMA/COA Authorities, Tab 3 35. The CMA/COA respectfully submit that the trial judge erred in this case in balancing the harms to individuals with the greater good to society of Medicare, under the rubric of Charter section 7 rather than under Charter section 1. As this Court has recently held: The balancing of individual and societal interests within s. 7 is only relevant when elucidating a particular principle of fundamental justice… Once the principle of fundamental justice has been elucidated, however, it is not within the ambit of s. 7 to bring into account such “societal interests” as health care costs. Malmo-Levine, supra at para. 98, CMA/COA Authorities, Tab 10 36. This Honourable Court recently reiterated that the state has an interest in avoiding harm to those subject to its laws which may justify parliamentary action: In other words, avoidance of harm is a “state interest” within the rule against arbitrary or irrational state conduct mentioned in Rodriguez, at p. 594, previously cited, that Where the deprivation of the right in question does little or nothing to enhance the state’s interest (whatever it may be), it seems to me that a breach of fundamental justice will be made out, as the individuals’ rights will have been deprived for no valid purpose. Malmo-Levine, supra at para. 131, CMA/COA Authorities, Tab 10 37. The state has a particular interest in acting to protect vulnerable persons. All patients, including those waiting to receive medical care, are vulnerable to the exercise of state power which limits access to health care. The CMA/COA submit that in the context of the single payer (publicly funded) model of health care delivery where access to alternate means for such care is prohibited by the state, patients are a vulnerable group. It is an arbitrary and irrational use of state power for the Québec Legislature, in section 15 of the Health Insurance Act, to prohibit alternative meaning of access to health care services without assuming a concomitant state obligation to guarantee timely access to necessary medical care, where the failure to afford timely access may lessen the quality and quantity of life. Health Insurance Act, R.S.Q., c. A-29, s. 15 New Brunswick, supra at para. 70, CMA/COA Authorities, Tab 7 B. (R.) v. Children’s Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315 at para. 88, CMA/COA Authorities, Tab 1 Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519 at 595, CMA/COA Authorities, Tab 12 38. The CMA/COA submit that it is open to this Court to read the concept of timeliness into the existing legislative provisions so as to render them constitutionally compliant. However, in the context of health care, a commitment to timeliness must be demonstrated in fact. The evidence before the trial judge and the findings of the Romanow Commission and the Senate Committee clearly indicate that access to medically necessary health care is not always provided in a timely manner. 39. In the absence of a commitment which provides timely access to publicly funded care, it is irrational for the state to prohibit access or the means of access to other forms of medically necessary care. The CMA/COA do not argue that governments must fund all medical services, but rather that having chosen to provide insured medical services under a single payer (publicly funded) model and prohibiting private insurance for these services, the government must provide the insured services in a timely manner. Failure to do so would be irrational, as it would constitute state action harming vulnerable persons. Hitzig v. Canada, [2003] O.J. No. 3873 (C.A.) at paras. 113-121, CMA/COA Authorities, Tab 6 40. Timeliness as a concept integral to many aspects of fundamental justice has been recognized by the common law and equity, through such concepts as laches, or the timeliness of trial rights. In particular, timeliness in the provision of medically necessary health care is essential to preserving human dignity, security of the person and promotion of human health. Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307 at paras. 121-133, CMA/COA Authorities, Tab 2 R. v. Askov, [1990] 2 S.C.R. 1199 at 1219-1223, CMA/COA Authorities, Tab 9 41. This is not just a failure of the Québec provincial legislature: it is an issue which involves the constitutional obligations of the federal government as well. As discussed above, one of the five criteria established by the federal government for cost-sharing of provincial Medicare is the principle of “accessibility”. The federal government, however, has not acknowledged timeliness as an aspect of accessibility. 42. Recognizing timeliness as intrinsic to accessibility and the requirements of fundamental justice is consistent with the constitutional commitments made by both the federal and provincial governments in section 36(1) of the Constitution Act, 1982, which provides: 36(1) Without altering the legislative authority of Parliament or of the provincial legislatures, or the rights of any of them with respect to the exercise of their legislative authority, Parliament and the legislatures, together with the government of Canada and the provincial governments, are committed to: (a) promoting equal opportunities for the well-being of Canadians; …; and (c) providing essential public services of reasonable quality to all Canadians. Constitution Act, 1982, s. 36(1), being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 [hereinafter Constitution Act, 1982] 43. Section 36(1) of the Constitution Act, 1982 establishes a constitutional commitment to promoting opportunities for well-being, and providing essential public services of reasonable quality. However, where governments fail to provide access to necessary medical care in a timely fashion in the public system, it is irrational to use the legislative power of prohibition to forbid viable alternatives. This irrationality contravenes principles of fundamental justice. Where Medicare contains no method of measuring or achieving timely access, the promise that governments will provide medically necessary treatment becomes illusory. Constitution Act, 1982, s. 36(1), supra 44. In the alternative, if this Honourable Court were to conclude that the prohibition is in accordance with the principles of fundamental justice because it promotes legitimate social interests, the CMA would respectfully submit that this conclusion should not be a “frozen” one. Any decision should not enshrine the status quo of excessive wait times as a perpetually viable constitutional state of affairs. This Court could establish threshold criteria for the life and health of Canadian citizens, below which the larger public good cannot be used to justify violations of individual rights. Recent studies such as the Romanow Commission and the Senate Committee found that the waiting time issue is dynamic, evolving and not static. (c) Not an Economic Right 45. Some of the respondents and interveners argue that the issue is one of economic rights – the purchase of insurance – which is not protected by the Charter. The CMA/COA submit that in the realm of access to health care, insurance can be a tool to secure that which is Charter protected – timely access to medically necessary health care. The economic aspect is incidental to securing the right. 46. The CMA/COA take the position that any economic and contract aspects are merely incidental to the real issue of the s. 7 right to life, liberty and security of the person. The trial judge concluded that economic barriers in the impugned legislation are ancillary to the principle of access to health care: Le Tribunal estime que les barrières économiques établies par les articles 15 LAM et 11 LAH sont intimement liées à la possibilité d’accès à des soins de santé. Sans ces droits, compte tenu des coûts impliqués, l’accès aux soins privés est illusoire. Dans ce sens, ces dispositions sont une entrave à l’accès à des services de santé et sont donc susceptibles de porter atteinte à la vie, à la liberté et à la sécurité de la personne. Judgment of Piché J., Joint Appellants’ Record, Vol. I, pp. 126-127 47. The CMA/COA submit that the trial judge was correct in concluding that excessive delay in the provision of necessary medical care violates the right to life, liberty and security of the person. Any economic rights to contract are incidental. This case is about patients in Canada having the right to quality health care in a timely manner. Judgment of Piché J., Joint Appellants’ Record, Vol. I, pp. 125-127, 133-134 48. To deny Canadians the right to timely access to health care on such conjectural grounds as the secondary aspect of this case, which touches economic or contractual aspects, would denude section 7 of its promise to life, liberty and security of the person. A legislative prohibition on the purchase of insurance when timely access is not provided is not the denial of an economic right, but the denial of a fundamental right to life, liberty and security. Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624 at paras. 91-93 [hereinafter Eldridge], CMA/COA Authorities, Tab 4 2. Not Saved Under Charter Section 1 49. It is clear that once an infringement of section 7 is established, the onus moves to the Government to justify the infringement under s. 1 pursuant to the Oakes test. The framework under section 1 was first established in R v. Oakes : A limitation to a constitutional guarantee will be sustained once two conditions are met. First. the objective of the legislation must be pressing and substantial. Second, the means chosen to attain this legislative end must be reasonable and demonstrably justifiable in a free and democratic society. In order to satisfy the second requirement, three criteria must be satisfied: (1) the rights violation must be rationally connected to the aim of the legislation; (2) the impugned provision must minimally impair the Charter guarantee; and (3) there must be proportionality between the effect of the measure and its objective so that the attainment of the legislative goal is not outweighed by the abridgement of the right. New Brunswick, supra at para. 95 citing Egan v. Canada, [1995] 2 S.C.R. 513 at para. 182, CMA/COA Authorities, Tab 7 50. It has long been established that the rights protected under section 7 are of significant importance and cannot ordinarily be overridden by competing social interests. In addition, “rarely will a violation of the principles of fundamental justice…be upheld as a reasonable limit demonstrably justified in a free and democratic society”. Godbout v. Longueuil (City), [1997] 3 S.C.R. 844 at para. 91, CMA/COA Authorities, Tab 5 New Brunswick, supra at para. 99 citing Re B.C. Motor Vehicle, supra at 518, CMA/COA Authorities, Tab 7 51. The values in issue here are similar to those considered by this Honourable Court in Eldridge, where La Forest J. for the Court held: Given the central place of good health in the quality of life of all persons in our society, the provisions of substandard medical services to the deaf necessarily diminishes the overall quality of their lives. The government has simply not demonstrated that this unpropitious state of affairs must be tolerated in order to achieve the objective of limiting health care expenditures. Stated differently, the government has not made a “reasonable accommodation” of the appellants’ disability. Eldridge, supra at para. 94, CMA/COA Authorities, Tab 4 52. The Romanow Commission has advocated central management of waiting lists, with common indicators, benchmarks and public accounting. The Senate Committee has recommended care guarantees. These are strong indications that solutions exist in a public health care system that will extend a commitment to timely access to medically necessary health care. Kirby, The Health of Canadians, Vol. 6, supra at 103-113, CMA/COA Authorities, Tab 16 Romanow, Building on Values, supra at 143-144, CMA/COA Authorities, Tab 15 53. The CMA/COA submit that if this Court holds that the legislation contravenes the Charter, governments have open to them a full range of options that could be implemented to address excessive waiting times for care. These include government commitments to assurances of timeliness as an essential element of the provision of medically necessary care where wait times are excessive, adopting timeliness as an element of “accessibility” under the Canada Health Act, and committing to clinically responsive access standards as envisioned by the Senate Committee. Other measures such as streamlining and improving the portability of out-of-province provisions in provincial Medicare statutes may also be considered by governments. In the absence of such assurances, however, a system which precludes alternative means to obtain medically necessary health care is unconstitutional where wait times are excessive. 54. Accordingly, it is submitted that a violation of Charter section 7 could be justified pursuant to section 1 if and only if the government were able to prove, on a balance of probabilities based on reliable and credible evidence rather than conjecture, that no alternative exists that could be implemented to ensure timeliness while at the same time maintaining the viability of the public single-payer. PART IV: SUBMISSIONS CONCERNING COSTS 55. The CMA/COA seeks no costs and asks that none be awarded against it. PART V: ORDER SOUGHT 56. The CMA/COA submit that when a person’s life is threatened or the quality of his or her life is substantially compromised and that person is prohibited from obtaining the medically necessary treatment through other means, even though the publicly funded system is unable to provide the necessary care, then constitutional questions # 1 and 3 should be answered affirmatively and the corresponding questions # 2 and 4 should be answered in the negative. Any declaration of unconstitutionality should, however, be delayed by three years, or such other period of time as this Court shall determine, so that the government may during this period institute the systemic commitment to timely access to medically necessary care and ensure simultaneously that individual patients receive care in as timely a manner as possible. 57. The CMA/COA seek leave of this Court, pursuant to rule 59(2), to present oral argument at the hearing of this appeal. Rules of the Supreme Court of Canada, SOR/2002-156, as amended, Rule 59(2) ALL OF WHICH IS RESPECTFULLY SUBMITTED December 12, 2005 Guy Pratte Freya Kristjanson ::ODMA\PCDOCS\LG-OTT-2\350103\1 PART VI: TABLE OF AUTHORITIES Cases Paragraph Nos. B. (R.) v. Children’s Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315………………..37 Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307……………….40 Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), 2004 SCC 4……………………………………………………………………………34 Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624…………………….48, 51 Godbout v. Longueuil (City), [1997] 3 S.C.R. 844………………………………………………50 Hitzig v. Canada, [2003] O.J. No. 3873 (C.A.)………………………………………………….39 New Brunswick (Minister of Health and Community Services) v. G.(J.), [1999] 3 S.C.R. 46……………………………………………………………….28, 31, 37, 49, 50 Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486………………………………………………...33 R. v. Askov, [1990] 2 S.C.R. 1199………………………………………………………………..40 R v. Malmo-Levine; R. v. Caine, 2003 SCC 74………………………………………….23, 35, 36 R. v. Morgentaler, [1988] 1 S.C.R. 30……………………………………………………….27, 28 Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519……………………….37 Stein v. Québec (Régie de l’Assurance-maladie), [1999] Q.J. No. 2724 (S.C.)…………………32 Secondary Sources Paragraph Nos. R.J. Blendon et al., “Common concerns Amid Diverse Systems: Health Care Experiences in Five Countries” (2003), 22 Health Affairs 106………………………………….16 Canada, Commission on the Future of Health Care in Canada, Building on Values: The Future of Health Care in Canada – Final Report, (Ottawa, 2002) (Chair: Roy Romanow)……………………………………………………9, 13, 15, 20, 52 Canada, The Standing Senate Committee on Social Affairs, Science and Technology, The Health of Canadians – The Federal Role: Final Report on the State of the Health Care System in Canada, Vol. 6 (Ottawa: 2002) (Chair: Michael Kirby)……………………………………………………….9, 10, 14, 19, 20, 52 Canadian Medical Association, Code of Ethics of the Canadian Medical Association, (Ottawa: The Association), October 1996…………………………………………..7 OECD, Labour and Social Affairs Committee, Explaining Waiting Times Variations for Elective Surgery Across OECD Countries, Working Paper No. 7, Doc. No. DELSA/ELSA/WD/HEA(2003)7 (2003)……………………………………………...17 OECD, Labour and Social Affairs Committee, Tackling Excessive Waiting Times for Elective Surgery: A Comparison of Policies in Twelve OECD Countries, Doc. No. DELSA/ELSA/WD/HEA(2003)6 (2003)………………………………….17 OECD, Labour and Social Affairs Committee, Tackling Excessive Waiting Times for Elective Surgery: A Comparison of Policies in Twelve OECD Countries Annex 1, Doc. No. DELSA/ELSA/WD/HEA(2003)6/ANN1 (2003)………………...26 Statistics Canada, Access to Health Care Services in Canada, 2001 by C. Sanmartin, C. Houle, J.-M. Berthelot and K. White, (Ottawa, Minister of Industry, 2002)……………………………………………………………………………….11, 12 PART VII: STATUTES AND REGULATIONS Loi canadienne sur la santé, L.R.C. 1985 c. C-6 Canada Health Act, R.S.C. 1985, c. C-6 7. Le versement à une province, pour un exercice, de la pleine contribution pécuniaire visée à l'article 5 est assujetti à l'obligation pour le régime d'assurance-santé de satisfaire, pendant tout cet exercice, aux conditions d'octroi énumérées aux articles 8 à 12 quant à : a) la gestion publique; b) l'intégralité; c) l'universalité; d) la transférabilité; e) l'accessibilité. 12. (1) La condition d'accessibilité suppose que le régime provincial d'assurance-santé : a) offre les services de santé assurés selon des modalités uniformes et ne fasse pas obstacle, directement ou indirectement, et notamment par facturation aux assurés, à un accès satisfaisant par eux à ces services; b) prévoie la prise en charge des services de santé assurés selon un tarif ou autre mode de paiement autorisé par la loi de la province; c) prévoie une rémunération raisonnable de tous les services de santé assurés fournis par les médecins ou les dentistes; d) prévoie le versement de montants aux hôpitaux, y compris les hôpitaux que possède ou gère le Canada, à l'égard du coût des services de santé assurés. (2) Pour toute province où la surfacturation n'est pas permise, il est réputé être satisfait à l'alinéa (1)c) si la province a choisi de conclure un accord et a effectivement conclu un accord avec ses médecins et dentistes prévoyant : a) la tenue de négociations sur la rémunération des services de santé assurés entre la province et les organisations provinciales représentant les médecins ou dentistes qui exercent dans la province; b) le règlement des différends concernant la rémunération par, au choix des organisations provinciales compétentes visées à l'alinéa a), soit la conciliation soit l'arbitrage obligatoire par un groupe représentant également les organisations provinciales et la province et ayant un président indépendant; c) l'impossibilité de modifier la décision du groupe visé à l'alinéa b), sauf par une loi de la province. 7. In order that a province may qualify for a full cash contribution referred to in section 5 for a fiscal year, the health care insurance plan of the province must, throughout the fiscal year, satisfy the criteria described in sections 8 to 12 respecting the following matters: (a) public administration; (b) comprehensiveness; (c) universality; (d) portability; and (e) accessibility. 12. (1) In order to satisfy the criterion respecting accessibility, the health care insurance plan of a province (a) must provide for insured health services on uniform terms and conditions and on a basis that does not impede or preclude, either directly or indirectly whether by charges made to insured persons or otherwise, reasonable access to those services by insured persons; (b) must provide for payment for insured health services in accordance with a tariff or system of payment authorized by the law of the province; (c) must provide for reasonable compensation for all insured health services rendered by medical practitioners or dentists; and (d) must provide for the payment of amounts to hospitals, including hospitals owned or operated by Canada, in respect of the cost of insured health services. (2) In respect of any province in which extra-billing is not permitted, paragraph (1)(c) shall be deemed to be complied with if the province has chosen to enter into, and has entered into, an agreement with the medical practitioners and dentists of the province that provides (a) for negotiations relating to compensation for insured health services between the province and provincial organizations that represent practising medical practitioners or dentists in the province; (b) for the settlement of disputes relating to compensation through, at the option of the appropriate provincial organizations referred to in paragraph (a), conciliation or binding arbitration by a panel that is equally representative of the provincial organizations and the province and that has an independent chairman; and (c) that a decision of a panel referred to in paragraph (b) may not be altered except by an Act of the legislature of the province. CONTRATS D'ASSURANCE ET SUBROGATION Contrats d'assurance prohibés. 15.  Nul ne doit faire ou renouveler un contrat d'assurance ou effectuer un paiement en vertu d'un contrat d'assurance par lequel un service assuré est fourni ou le coût d'un tel service est payé à une personne qui réside ou qui séjourne au Québec ou à une autre personne pour son compte, en totalité ou en partie. Contrats en vigueur pour d'autres services et biens. Si un tel contrat a aussi pour objet d'autres services et biens, il demeure en vigueur quant à ces autres services et biens et la considération prévue à l'égard de ce contrat doit être ajustée en conséquence, à moins que le bénéficiaire de ces services et de ces biens n'accepte de recevoir en échange des avantages équivalents. Délai de remboursement. Si la considération a été payée à l'avance, le montant du remboursement ou de l'ajustement, selon le cas, doit être remis dans les trois mois à moins que la personne assurée n'accepte au cours de cette période de recevoir des avantages équivalents. Montants inférieurs à 5 $. Si le montant total des remboursements ou des ajustements qui doivent être effectués à l'égard d'une même personne en vertu d'un contrat conclu pour au plus une année est inférieur à 5 $, le montant n'est pas exigible mais il doit être remis au ministre pour être versé au Fonds de la recherche en santé du Québec visé dans l'article 96. Exception. Le premier alinéa ne s'applique pas à un contrat qui a pour objet l'excédent du coût des services assurés rendus hors du Québec ou l'excédent du coût des médicaments dont la Régie assume le paiement. Il ne s'applique pas non plus à un contrat qui a pour objet la contribution que doit payer une personne assurée en vertu de la Loi sur l'assurance médicaments ( chapitre A-29.01). CONTRACT OF INSURANCE AND SUBROGATION Coverage under contract of insurance prohibited. 15.  No person shall make or renew a contract of insurance or make a payment under a contract of insurance under which an insured service is furnished or under which all or part of the cost of such a service is paid to a resident or temporary resident of Québec or to another person on his behalf. Contract in force for other services and property. If such a contract also covers other services and property it shall remain in force as regards such other services and property and the consideration provided with respect to such contract must be adjusted accordingly, unless the beneficiary of such services and of such property agrees to receive equivalent benefits in exchange. Delay for reimbursement. If the consideration was paid in advance, the amount of the reimbursement or adjustment, as the case may be, must be remitted within three months unless the insured person agrees, during such period, to receive equivalent benefits. Amounts less than $5. If the total amount of the reimbursements or adjustments to be made as regards one person under a contract made for not more than one year is less than $5, the amount shall not be exigible but it shall be remitted to the Minister to be paid to the Fonds de la recherche en santé du Québec contemplated in section 96. Excess cost. The first paragraph does not apply to a contract covering the excess cost of insured services rendered outside Québec or the excess cost of any medication of which the Board assumes payment nor does it apply to a contract covering the contribution payable by an insured person under the Act respecting prescription drug insurance ( chapter A-29.01). Loi sur l’assurance-maladie, L.R.Q., c. A-29, article 15 Health Insurance Act, R.S.Q., c. A-29, section 15. Constitution Act, 1982, s. 36, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 36. 1) Without altering the legislative authority of Parliament or of the provincial legislatures, or the rights of any of them with respect to the exercise of their legislative authority, Parliament and the legislatures, together with the government of Canada and the provincial governments, are committed to (a) promoting equal opportunities for the well-being of Canadians; (b) furthering economic development to reduce disparity in opportunities; and (c) providing essential public services of reasonable quality to all Canadians. 36. 1) Sous réserve des compétences législatives du Parlement et des législatures et de leur droit de les exercer, le Parlement et les législatures, ainsi que les gouvernements fédéral et provinciaux, s'engagent à a) promouvoir l'égalité des chances de tous les Canadiens dans la recherche de leur bien-être; b) favoriser le développement économique pour réduire l'inégalité des chances; c) fournir à tous les Canadiens, à un niveau de qualité acceptable, les services publics essentiels. 59 (2) Le juge peut à sa discrétion, une fois les mémoires de demande d'autorisation d'appel, d'appel ou de renvoi déposés et signifiés, autoriser l'intervenant à présenter une plaidoirie orale à l'audition de la demande d'autorisation d'appel, le cas échéant, de l'appel ou du renvoi, et déterminer le temps alloué pour la plaidoirie orale. 59 (2) After all of the memoranda of argument on an application for leave to appeal or the facta on an appeal or reference have been filed and served, a judge may, in his or her discretion, authorize an intervener to present oral argument at the hearing of the application for leave to appeal, if any, the appeal or the reference, and determine the time allotted for oral argument. 36. 1) Without altering the legislative authority of Parliament or of the provincial legislatures, or the rights of any of them with respect to the exercise of their legislative authority, Parliament and the legislatures, together with the government of Canada and the provincial governments, are committed to (a) promoting equal opportunities for the well-being of Canadians; (b) furthering economic development to reduce disparity in opportunities; and (c) providing essential public services of reasonable quality to all Canadians. 36. 1) Sous réserve des compétences législatives du Parlement et des législatures et de leur droit de les exercer, le Parlement et les législatures, ainsi que les gouvernements fédéral et provinciaux, s'engagent à a) promouvoir l'égalité des chances de tous les Canadiens dans la recherche de leur bien-être; b) favoriser le développement économique pour réduire l'inégalité des chances; c) fournir à tous les Canadiens, à un niveau de qualité acceptable, les services publics essentiels. Règles de la Cour suprême du Canada, DORS/2002-156, tel qu’amendées, Règle 59(2) Rules of the Supreme Court of Canada, SOR/2002-156, as amended, Rule 59(2) 36. 1) Without altering the legislative authority of Parliament or of the provincial legislatures, or the rights of any of them with respect to the exercise of their legislative authority, Parliament and the legislatures, together with the government of Canada and the provincial governments, are committed to (a) promoting equal opportunities for the well-being of Canadians; (b) furthering economic development to reduce disparity in opportunities; and (c) providing essential public services of reasonable quality to all Canadians. 36. 1) Sous réserve des compétences législatives du Parlement et des législatures et de leur droit de les exercer, le Parlement et les législatures, ainsi que les gouvernements fédéral et provinciaux, s'engagent à a) promouvoir l'égalité des chances de tous les Canadiens dans la recherche de leur bien-être; b) favoriser le développement économique pour réduire l'inégalité des chances; c) fournir à tous les Canadiens, à un niveau de qualité acceptable, les services publics essentiels.
Documents
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CMA & CNA Letter on the Future Mandate of the Health Care Innovation Working Group (the Council of the Federation)

https://policybase.cma.ca/en/permalink/policy11477
Date
2015-01-22
Topics
Population health/ health equity/ public health
Health systems, system funding and performance
  1 document  
Policy Type
Parliamentary submission
Date
2015-01-22
Topics
Population health/ health equity/ public health
Health systems, system funding and performance
Text
Re: Future Mandate of the Health Care Innovation Working Group (the Council of the Federation) Dear Premiers: On behalf of the Canadian Nurses Association (CNA) and the Canadian Medical Association (CMA), I am writing in advance of the meeting of the Council of the Federation later this month regarding the future mandate of the Health Care Innovation Working Group with respect to seniors care. The CNA and CMA welcomed the Council of the Federation's prioritization of seniors care as an area of focus of the Health Care Innovation Working Group. Already, seniors and their families in communities across Canada face significant challenges accessing social supports and health services. These challenges will only intensify as the demographic shift progresses. Based on current trends and approaches, the proportion of provincial/territorial health spending associated with seniors care is forecast to grow by over 15% to almost 62% of health budgets by 2036. Recognizing the significant pressure this will present for health care systems and provincial/territorial budgets moving forward, it is critical that the Council of the Federation maintain its prioritization of seniors care and meeting the needs of an aging population. As such, we respectfully encourage you in your capacity as Co-Chairs of the Health Care Innovation Working Group to ensure the future mandate of the working group on seniors care be included as part of the agenda at the January 30, 2015 meeting of the Council of the Federation. The CNA and CMA are actively engaged on this issue and welcome the opportunity to meet with each of you to discuss how we may collaborate to ensure improved health outcomes for seniors, now and in the future. Sincerely, Christopher S. Simpson, MD, FRCPC, FACC, FHRS CMA President Karima Velji, RN, PhD, CHE CNA President
Documents
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CMA’s Response to CRA’s Questions, Public consultation on the Disability Tax Credit Promoters Restrictions Act regulations

https://policybase.cma.ca/en/permalink/policy14027
Date
2015-05-15
Topics
Health systems, system funding and performance
Physician practice/ compensation/ forms
  1 document  
Policy Type
Parliamentary submission
Date
2015-05-15
Topics
Health systems, system funding and performance
Physician practice/ compensation/ forms
Text
The Canadian Medical Association (CMA) is pleased to provide the information below in response to questions by the Canada Revenue Agency (CRA) for consideration as part of the development of regulations following the enactment of the Disability Tax Credit Promoters Restriction Act. This information is in follow up to CMA’s submission to the CRA dated December 19, 2014, attached for reference. As explained in the CMA’s submission attached, the CMA strongly encourages the CRA to include an exemption for “a health care practitioner duly licensed under the applicable regulatory authority who provides health care and treatment” from the reporting requirements in the forthcoming regulations enabled by the Disability Tax Credit Promoters Restriction Act. This exemption is necessary to ensure CRA does not impose duplicative regulatory oversight of the medical profession, specific to the provision of this uninsured service. As fully explained in the CMA’s brief, this exemption would not introduce a potential “loophole”. Issue 1: Organizations Responsible for Physician Regulatory Oversight The statutory authority for the regulatory oversight of physicians rests with the provincial and territorial medical regulatory colleges. As explained on page 4 of the CMA’s submission, medical regulatory colleges have statutory, comprehensive regulatory authority of physicians; this authority captures: medical licensure, governing standards of practice, professional oversight, and disciplinary proceedings. Included in this authority is broad regulatory oversight for fees that physicians may charge for uninsured services, which would capture the fee charged for the Disability Tax Credit form. The Federation of Medical Regulatory Authorities of Canada (FMRAC) is the umbrella organization representing provincial and territorial medical regulatory authorities in Canada and can address how best to contact individual regulatory colleges.1 Issue 2: CMA’s Code of Ethics In addition to policies, guidance and oversight by provincial and territorial regulatory colleges, charging a fee associated with the delivery of an uninsured service, in this case a fee associated with completing the form associated with the Disability Tax Credit, is captured by Section 16 of the CMA’s Code of Ethics. Section 16 states: “In determining professional fees to patients for non-insured services, consider both the nature of the service provided and the ability of the patient to pay, and be prepared to discuss the fee with the patient.”2 Issue 3: Fee Structure for Uninsured Services As the CRA does not provide remuneration to physicians for the completion of the Disability Tax Credit form, the delivery of this service by physicians is an uninsured service. As an uninsured service there is no set fee level. While provincial and territorial medical associations Canadian Medical Association 3 May 15, 2015 may provide guidance to physicians within their jurisdiction on uninsured services, which may be referenced in policies by regulatory colleges, this guidance does not constitute a set fee schedule. As captured in the CMA’s Code of Ethics referenced above, physicians may consider patient-specific and other factors in determining a fee for the delivery of an uninsured service. The CMA encourages CRA to review relevant policies and guidance of individual provincial and territorial regulatory colleges for a comprehensive understanding of the oversight of uninsured services. Closing Once again, the CMA appreciates the opportunity to provide further information to support the development of regulations to enable the new authorities of the Disability Tax Credit Promoters Restriction Act and to ensure that CRA does not impose redundant and duplicative regulatory oversight of the medical profession. 1 FMRAC’s Executive Director is Dr. Fleur-Ange Lefebvre and can be reached at falefebvre@fmrac.ca 2 CMA’s Code of Ethics may be accessed here: https://www.cma.ca/Assets/assetslibrary/ document/en/advocacy/policyresearch/ CMA_Policy_Code_of_ethics_of_the_Canadian_Medical_Association_Update_2004_PD04-06-e.pdf
Documents
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Compensation ceilings for GP's and access to front-line services

https://policybase.cma.ca/en/permalink/policy1524
Last Reviewed
2017-03-04
Date
2004-08-18
Topics
Ethics and medical professionalism
Health human resources
Health systems, system funding and performance
Physician practice/ compensation/ forms
Resolution
GC04-51
The Canadian Medical Association recommends that compensation ceilings for general practitioners where they exist be removed in order to improve access to front-line services.
Policy Type
Policy resolution
Last Reviewed
2017-03-04
Date
2004-08-18
Topics
Ethics and medical professionalism
Health human resources
Health systems, system funding and performance
Physician practice/ compensation/ forms
Resolution
GC04-51
The Canadian Medical Association recommends that compensation ceilings for general practitioners where they exist be removed in order to improve access to front-line services.
Text
The Canadian Medical Association recommends that compensation ceilings for general practitioners where they exist be removed in order to improve access to front-line services.
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Consistent immunization policies

https://policybase.cma.ca/en/permalink/policy11612
Date
2015-08-26
Topics
Population health/ health equity/ public health
Health systems, system funding and performance
Resolution
GC15-51
The Canadian Medical Association supports consistent immunization policies, health and safety requirements and standardized reporting for all medical schools in Canada.
Policy Type
Policy resolution
Date
2015-08-26
Topics
Population health/ health equity/ public health
Health systems, system funding and performance
Resolution
GC15-51
The Canadian Medical Association supports consistent immunization policies, health and safety requirements and standardized reporting for all medical schools in Canada.
Text
The Canadian Medical Association supports consistent immunization policies, health and safety requirements and standardized reporting for all medical schools in Canada.
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Continuing professional development that result in measurable improvement outcomes for patient care

https://policybase.cma.ca/en/permalink/policy11622
Date
2015-08-26
Topics
Health systems, system funding and performance
Resolution
GC15-44
The Canadian Medical Association encourages the expansion of continuing professional development opportunities that result in measurable improvement outcomes for patient care.
Policy Type
Policy resolution
Date
2015-08-26
Topics
Health systems, system funding and performance
Resolution
GC15-44
The Canadian Medical Association encourages the expansion of continuing professional development opportunities that result in measurable improvement outcomes for patient care.
Text
The Canadian Medical Association encourages the expansion of continuing professional development opportunities that result in measurable improvement outcomes for patient care.
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Delivery of publicly insured medical services by the private sector

https://policybase.cma.ca/en/permalink/policy1521
Last Reviewed
2017-03-04
Date
2004-08-18
Topics
Population health/ health equity/ public health
Health systems, system funding and performance
Resolution
GC04-88
The Canadian Medical Association encourages the continued delivery of publicly insured medical services by the private sector provided that these services are funded entirely by the public sector.
Policy Type
Policy resolution
Last Reviewed
2017-03-04
Date
2004-08-18
Topics
Population health/ health equity/ public health
Health systems, system funding and performance
Resolution
GC04-88
The Canadian Medical Association encourages the continued delivery of publicly insured medical services by the private sector provided that these services are funded entirely by the public sector.
Text
The Canadian Medical Association encourages the continued delivery of publicly insured medical services by the private sector provided that these services are funded entirely by the public sector.
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Demographic top-up cash transfer from the federal to the provincial and territorial governments

https://policybase.cma.ca/en/permalink/policy11740
Date
2015-05-30
Topics
Health systems, system funding and performance
Resolution
BD15-06-233
The Canadian Medical Association supports the implementation of a demographic top-up cash transfer from the federal to the provincial and territorial governments as outlined in BD 15-121.
Policy Type
Policy resolution
Date
2015-05-30
Topics
Health systems, system funding and performance
Resolution
BD15-06-233
The Canadian Medical Association supports the implementation of a demographic top-up cash transfer from the federal to the provincial and territorial governments as outlined in BD 15-121.
Text
The Canadian Medical Association supports the implementation of a demographic top-up cash transfer from the federal to the provincial and territorial governments as outlined in BD 15-121.
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Family physicians and hospital affiliation

https://policybase.cma.ca/en/permalink/policy1502
Last Reviewed
2017-03-04
Date
2004-08-18
Topics
Ethics and medical professionalism
Health human resources
Health systems, system funding and performance
Physician practice/ compensation/ forms
Resolution
GC04-36
The Canadian Medical Association calls on the federal, provincial and territorial governments to work together with the Association and its divisions and affiliates to develop initiatives that are incentive based to encourage family physicians to retain hospital affiliation and provide hospital care in supporting the provision of the full continuum of primary care to patients.
Policy Type
Policy resolution
Last Reviewed
2017-03-04
Date
2004-08-18
Topics
Ethics and medical professionalism
Health human resources
Health systems, system funding and performance
Physician practice/ compensation/ forms
Resolution
GC04-36
The Canadian Medical Association calls on the federal, provincial and territorial governments to work together with the Association and its divisions and affiliates to develop initiatives that are incentive based to encourage family physicians to retain hospital affiliation and provide hospital care in supporting the provision of the full continuum of primary care to patients.
Text
The Canadian Medical Association calls on the federal, provincial and territorial governments to work together with the Association and its divisions and affiliates to develop initiatives that are incentive based to encourage family physicians to retain hospital affiliation and provide hospital care in supporting the provision of the full continuum of primary care to patients.
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Federal cash transfers for health care

https://policybase.cma.ca/en/permalink/policy1515
Last Reviewed
2017-03-04
Date
2004-08-18
Topics
Health systems, system funding and performance
Resolution
GC04-82
The Canadian Medical Association calls on the federal government, in the context of the upcoming First Ministers' Meeting, to commit to a Health Partnership Guarantee to ensure federal cash transfers for health care will never again fall below a minimum threshold of 25% of provincial and territorial health care costs.
Policy Type
Policy resolution
Last Reviewed
2017-03-04
Date
2004-08-18
Topics
Health systems, system funding and performance
Resolution
GC04-82
The Canadian Medical Association calls on the federal government, in the context of the upcoming First Ministers' Meeting, to commit to a Health Partnership Guarantee to ensure federal cash transfers for health care will never again fall below a minimum threshold of 25% of provincial and territorial health care costs.
Text
The Canadian Medical Association calls on the federal government, in the context of the upcoming First Ministers' Meeting, to commit to a Health Partnership Guarantee to ensure federal cash transfers for health care will never again fall below a minimum threshold of 25% of provincial and territorial health care costs.
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47 records – page 2 of 5.