Public-private health care model coming to Alberta breaches Canada Health Act, legal expert argues
The Globe and Mail reports on our legal opinion, prepared for the Canadian Health Coalition, that Alberta’s public-private health care model directly contradicts the requirements and principles of the Canada Health Act.
As a result of legislation passed late last year, Alberta is now the only province that allows physicians to work simultaneously in the public and private health care systems.
The Globe spoke to Emma Phillips about the opinion.
Goldblatt’s Emma Phillips, who is recognized as a leading practitioner in labour and employment law, concluded Alberta breaches the federal legislation “by explicitly enabling differential access to medically necessary care based on ability to pay in the private market.”
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Ms. Phillips, in her legal opinion, said Alberta’s law contravenes multiple conditions of the Canada Health Act, which provinces must fulfill to be eligible for federal cash transfer payments. These payments should be deducted, she said, if Alberta forges ahead as planned.
“Alberta’s Bill 11, I think, very clearly violates both the letter and the spirit of the Canada Health Act,” she said in an interview.
This includes requirements that all medically required services are publicly insured (Section 9), there is “reasonable access” to insured services without financial barriers (Section 12) and people are entitled to them on “uniform terms and conditions” (Section 10).
Additionally, she said, Bill 11 violates prohibitions against user fees and extra billing (sections 18 and 19), which protect patients against out-of-pocket charges for services that are covered by provincial health plans.
Ms. Phillips observed that the federal government has consistently and formally taken the position, since the Canada Health Act came into effect in 1984, that medically necessary services must be provided on the basis of need, not the ability to pay.
Ottawa has clearly argued, she said, that a dual model will create “queue jumping” and shift physicians and other resources out of the public sector. It also has argued it will incentivize physicians to move patients into the private sphere, lengthen public wait times and could result in poor health outcomes for those who cannot afford to pay out of pocket.
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Premier Danielle Smith’s government has argued that the hybrid model will decrease wait-lists for surgeries and attract more physicians to the province. Alberta has said safeguards will be in place, such as requiring a minimum number of hours worked in the public system.
But any safeguards are “no response to the explicit failure of the dual practice provisions, on their face, to respect the requirements and protections of the Canada Health Act,” Ms. Phillips argued in the opinion dated April 30.
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In 2015, an Alberta court struck down another challenge that attempted to overturn the province’s ban on private health insurance. The Allen v. Alberta case recognized “dual practice is inconsistent with the requirements and criteria of the Canada Health Act,” Ms. Phillips said, adding that it underlines her conclusion about Bill 11.
She said she hopes the new opinion pushes the federal government to take a firm position and defend universal health coverage in Canada.
“If there are no financial consequences for Alberta, the business and financial pressures on other governments to follow suit is going to be very hard to resist,” she said.