Breach of Contract : Suing the Government over Health Care in Quebec
Someone dies in an ambulance because the emergency ward of his hospital had been shut down. A woman dies in a hospital corridor forgotten by over-worked nurses. A grievous error is committed by an exhausted anaesthesiologist. A seven-year old child with cancer writhes in pain at home waiting for a hospital bed. Senior bureaucrats remove life-prolonging drugs for AIDS patients from the public list in order to meet the government budget.
The former PQ government told the public that the hospitals are over-crowded, that the doctors and nurses were to blame for medical blunders, masking the reality that the PQ recklessly gutted the medicare system sending 22,00 nurses into retirement, underpaying and pushing specialists to leave the province, and transferring monies out of provincial health coffers to promote fly-by-night techno-parks and other pies in the sky.
The Liberal Party is toying with private clinics that will bleed hospitals of needed physicians. All the political parties are bending over backwards to well-heeled private investors seeking to establish a two-tiered system of health care, one for the rich and another for the poor, in complete opposition to the wishes of the public consensus and the tenets of the Canadian Medicare Act.
The one thing no one wants to talk about is the only thing the public can do. Sue the provincial government for breach of contact. And the Canadian courts have provided the grounds.
Article 7 of the Charter of Rights and Freedoms states that "everyone has the right to life, liberty and security of the person and the right not to be deprived thereof". Government measures preventing individuals accessing timely and appropriate health care services constitute a violation of the Charter. The Supreme Court unanimously declared in R v Morgentaler 1988, that government procedures, administrative delays or quotas causing increased risk in the provision of needed services constitute a violation of both the physical and the psychological security of the person. What Chief Justice Dickson decreed is that Canadians have a right to expect that medically necessary services are available in Canada.
The Canadian Society of Surgical Oncology has stated that, for the average cancer patient, the time from completion of diagnostic tests to definitive surgery should not exceed two weeks. With the closure of beds, the flight of specialists, hospitals are hardly able to meet their own criterion. Recent studies reveal correlations between increased waiting and adverse medical outcomes, including added mortality. Waiting implies a vicious circle of physical pain, loss of functionality, decreased quality of life, lost work, anxiety, depression and sleeplessness.
Both the Régie de l'assurance-maladie du Québec and the Ontario Health Insurance Board have been obliged by tribunals to reimburse patients who sought medical treatment abroad. In Kramer v The Ontario Health Insurance Plan (OHIP 2002), Ronald Kramer was denied permission to obtain life-saving cancer treatment in the United States. The patient paid out of his own pocket for treatment at the Johns Hopkins Oncology Centre in Baltimore, Maryland. A request for reimbursement was denied the patient by OHIP. But the Health Services Appeal and Review Board, ordered OHIP to reimburse him the $350,000 he had spent, on the grounds that had he waited to obtain the treatment in Ontario, he would have suffered a delay resulting in "death or significant irreversible tissue damage" ( the statutory requirement of obtaining reimbursement).On April 8, 1996, Stein's doctors wrote to the Régie de l'assurance-maladie du Québec requesting authorization to send him for surgery to New York City. The Régie refused, stating that the procedures were experimental. Stein went to New York and two years later was free of all liver lesions. He sued for reimbursement. The Régie refused. In an appeal to the Quebec Superior Court. Justice Carol Cohen held that the Régie's refusal to reimburse Stein was patently unreasonable, irrational and contrary to the purposes of the Health Insurance Act.
The First Ministers' Communiqué on Health of September 2000 stated that the key goals of the health system in Canada are to:
"preserve, protect and improve the health of Canadians..(as well as).. ensure that Canadians have reasonably timely access to an appropriate, integrated, and effective range of health services anywhere in Canada, based on their needs, not their ability to pay. In effect, wrote the C.D. Howe Institute " the current legal framework for medical services in Canada represents an unwritten but clear contract with Canadians".
The court was not asked to consider two critical issues on Stein's behalf. It is these issues that must be put before the court. The object of such a challenge would be two-fold:
1.) To oblige the provincial governments to provide all the necessary medical services (doctors, nurses, beds, social-psychological support, home-care) or else be liable for breach of contract.
2.) To ask the court whether an underlying constitutional claim or entitlement can be evoked on behalf of all and any citizens, thus thwarting arbitrary provincial government regulations being narrowed or eliminated through an ordinary statutory or regulatory change.
The present social-political climate, the rulings cited above, the age and life experience of Canadian judges suggest that the courts will rule in favor of the Canadian public. It will put an end to provincial governments shifting funds ear-marked for health-care into pork-barrels and other white elephants. At the very least, the courts and judges will test whether the framework politicians and governments have devised for the public's health-care, complies with not only reasonable guarantees of security, but also the expressed priorities of Canadians.