Canadian Healthcare: Creeping Privatization

Last week,  in Part I of my article on Canada’s healthcare system, I cited the Canadian Encyclopedia entry on “health policy” written by the late Toronto Star medical reporter Marilyn E. Dunlop. In my initial draft, I noted that the Canadian Encyclopedia is kind of wacky (see the “David Dingwall” entry) and that Dunlop, in her contribution, went out of her way to say:

Contrary to a widely held belief that doctors oppose medicare, the plan is supported by the Canadian Medical Association.

I knew there was a “widely held belief” that doctors were some of the earliest opponents of medicare because, as Dunlop explains in her own piece, they were, but I hadn’t realized such a belief had persisted into modern times.

I ended up deleting all this from the finished version of the article for space reasons, but it suddenly became relevant again this week when I read this 2006 article about Canadian healthcare in The Lancet and remembered that Dunlop’s Canadian Encyclopedia entry also dated to 2006. The Lancet piece, written by Paul Webster, takes aim at the Canadian Medical Association (CMA) not so much for “opposing medicare” as for supporting private care.

My excuse for not immediately remembering what was happening in terms of healthcare in 2006 was that I was  (as I never tire of telling you) abroad at the time. But it was also 17 years ago, which means I might not be the only one struggling to remember the details, so let me jog your memories: what was happening in 2006 was the fall-out from the Supreme Court of Canada’s 2005 decision in Chaoulli v. Québec, a case explained in this 2008 paper by Colleen M Flood and Sujith Xavier this way:

The two litigants were Dr. Chaoulli, a physician originally from France who was frustrated with governmental limits on his ability to practice privately, and George Zeliotis, a sixty-seven-year-old patient with hip and heart conditions who had to wait nine months for a hip operation. Mr. Zeliotis thought that if he were able to purchase private insurance then he could have financed his hip operation in the private sector. Chaoulli and Zeliotis were unsuccessful at both the trial and appeal levels but struck controversial success before the Supreme Court of Canada.

The Supreme Court ruled that Zeliotis’ nine-month wait time violated his rights under the Québec Charter of Rights and Freedoms but tied 3-3 on the question of whether it violated his rights under the Canadian Charter, which is why the ruling is in force only in Québec.

Québec responded to this decision by liberalizing its law related to private health coverage for just three procedures: hip and knee replacements and cataract surgeries. But the province also “significantly reduced any incentive to buy private health insurance by putting in place measures in the public health care system to cap waiting times in those three specific areas.”

Nevertheless, the Chaoulli decision ” inspired a range of different claims to health care based on Charter rights,” including a very famous case brought by a man who was also causing consternation among single-payer healthcare supporters in 2006: Dr. Brian Day.

 

Day-O!

Day, a British Columbian orthopedic surgeon (originally from England, what is it with these doctors from countries with public healthcare systems coming to Canada and messing with ours?) was elected president of the Canadian Medical Association (CMA) in August 2006.  In this 2015 op-ed, he explains that he wants to see the Canadian system “evolve into a hybrid system along the lines we see in other countries with successful universal care.”

During that same August 2006 CMA general assembly, notes Webster:

… 248 delegates at the Association’s general assembly voted to tackle wait times by urging politicians to “remove existing bans that prevent physicians from practising in both the private and public sectors”.

The year 2006 also saw the formation of Canadian Doctors for Medicare (CDM), a group that:

…stepped into the national health care debate in May of 2006 when a group of physicians and friends became concerned about the increased privatization in Canadian health care, and about the development of a two-tiered health care system that would allow the wealthy to buy private insurance for private care at the expense of the vast majority of Canadians.

All of which would seem to make 2006 a good place to begin this week’s article about what has been termed “privatization creep” in the Canadian system, but I actually want to go back a bit further to consider why patients in Québec (and elsewhere in Canada) were having trouble getting timely treatment within the public health system.

 

Not-so-surgical cuts

You can’t discuss the problems plaguing Canada’s healthcare system without addressing the massive spending cuts undertaken by Prime Minister Jean Chrétien and his finance minister, Paul Martin, in the 1990s (which is why, as you will recall, we actually did address them last week).

Murray Dobbin, writing in rabble.ca in 2008, was brutal in his evaluation of Martin, arguing his spending cuts sent the country into a recession that cost it an estimated $400 billion in lost tax revenues. CAW economist Jim Stafford estimated that if Martin had just frozen spending at 1994 levels and lowered interest rates, the resulting economic growth would have wiped out the deficit in two years “without the pain.”

Martin’s cuts were followed by another round under Stephen Harper whose finance minister, Jim Flaherty, as we discovered last week, viewed the Martin cuts as a sort of “how-to” manual.

The cumulative effect of all this cost-cutting was to undermine Canada’s healthcare system to the point where in 2019 (pre-COVID), a radio team from WBUR, a Massachusetts NPR station, could come to Nova Scotia and make a three-part series on healthcare designed to prove that then-presidential candidates Bernie Sanders and Elizabeth Warren were wrong to hold up Canada’s system as a model for the US.

Asked to explain the enthusiasm of people like Sanders and Warren for the Canadian model, a Harvard University expert in public healthcare interviewed in Part III said it’s because they’re stuck in the past: Canada’s system had been a model for the world from the ’70s to the ’90s, but then the country went into a recession and changed the way the federal government funded the provincial systems and the system no longer ranks among the best in the world.

I think it’s important to underline that what the Harvard expert is saying here is that a single-payer system works well when that single-payer actually pays, and from the ’70s to the ’90s, Canada did. Starving a public system and then saying “It doesn’t work” and “We need to turn it over to the private sector” is “the playbook of all privatization advocates everywhere.”

The NPR journalists’ skepticism about single-payer is palpable (I file that under: “Americans are weird about healthcare”), but nowhere near as ghoulish as that of one Sally Pipes, president of a right-wing think tank called the Pacific Research Institute, who took to the pages of Forbes recently to declare that Ontario Premier Doug Ford’s decision to expand private care showed “Canadian Leaders Finally Waking Up To The Horrors Of Single-Payer Health Care.” Pipes is clearly the type of person you could happily sit up all night and slap, as an old friend of mine would say. Sadly, I will probably never get the opportunity.

Also worth noting: the “hybrid” systems being advocated don’t necessarily cost less or have better outcomes than our single-payer system—the UK, for example, still has problems with wait times despite greater privatization and this was true even before COVID.

 

Privatization creep

Two particularly bad things happened as a result of  the cuts to the health transfer. First, as Webster explains, provinces “radically pruned” the number of treatments available within the system, forcing Canadians to “rely on private insurance plans for treatments extending beyond those in the reduced public system.”

Second, increased wait times within the system opened the door to private clinics offering to do procedures and bill the province. (The Canada Health Act of 1984, which governs our system, says that doctors and hospitals and clinics cannot charge patients for procedures or treatments covered under the public system.) On the surface, this isn’t a problem—the province decides how much procedures are worth, so clinics can’t charge more than that and they can’t charge patients.

But these private clinics take resources away from the already struggling public system and patients often are charged for procedures that are covered by the provincial systems. As Connor Forbes and Erica Tsang, writing in the University of British Columbia Medical Journal in 2012, put it:

In addition to supplementing the public system, the private system shows signs of infringing upon its domain. An evaluation of 130 private healthcare clinics across Canada found evidence to suspect the possibility of 89 violations of the Canada Health Act, including charging patients for medically necessary services that are covered by Canada’s publicly funded universal healthcare system. These clinics allow Canadians who are willing and able to pay out-of-pocket to avoid lengthy public system wait times, effectively creating a tiered healthcare system.

In 2017, a Globe and Mail investigation found examples of patients paying thousands of dollars for treatments covered under the Ontario’s medicare system.

Here at home, Doctors Nova Scotia has sounded the alarm about private clinics and post-COVID we’re seeing a rise in the use of “traveling nurses“—nurses who work for a for-profit company that parachutes them into communities where they’re needed, thus turning nursing into gig work. Well-paid gig work, apparently, although that CBC story about them states:

It is not clear…whether the nurses received the full hourly amount specified, or whether some of their fee went toward their company. Travel nurses typically don’t receive a pension, and in some cases they don’t have workplace benefits.

Call me cynical, but I’m saying “some of their fee went toward their company.” I’d also point out that the whole trick with gig work is to start out paying well and then, when you’ve destroyed your competition, cut wages. Just ask an Uber driver.

The question as to why the federal government basically turns a blind eye to such encroachments is beyond the scope of this article but well worth considering. (Anecdotally, I can’t tell you how many times I’ve heard people say, “Canada already has private medicine,” meaning, that ship has sailed, deal with it.) For now, I will direct you to the CBC, which looked into the issue after NDP leader Jagmeet Singh suggested the feds could use the Canada Health Act to stop Ford’s private healthcare plans.

 

And then came Cambie…

That was a very long-winded way of explaining both why the plaintiff in Chaoulli v. Québec was experiencing delays in receiving treatment and why he had private options for that treatment.

Paul Webster, in The Lancet, said the Supreme Court’s decision in that case:

…raised a cheer at the CMA, which intervened along with the private health insurance industry against public health officials in urging the Court towards its ruling.

The ruling, he said:

…also pleased the Canadian Association of Life and Health Insurance Companies, which represents scores of health insurers active in Canada’s billowing CDN$17 billion market for private care.

One of the intervenors in the case was Cambie Surgeries Corp, the BC medical clinic operated by…Dr. Brian Day.

In 2009, Day launched his own court case in British Columbia (Press Progress has some interesting information about who actually funded the case) arguing wait times for treatments constituted a violation of his patients’ rights to life, liberty and the security of the person under Section 7 of the Canadian Charter of Rights and Freedoms.

Day et al (the plaintiffs included four of his patients and a private specialist referral clinic) demanded changes to BC’s Medicare Protection Act such that doctors could charge patients above Medical Service Plan (MSP) rates if they so chose and private insurance companies could cover the services that people get for free in the public system.

The short video below from the CDM featuring Dr. Karen Palmer does a good job explaining the Cambie case and its implications for both the BC and the Canadian healthcare systems, but basically, if Day prevailed, doctors would be tempted to privilege people with private insurance over people relying on the public system.

 The Cambie case went to trial in September 2016 and the BC Supreme Court handed down its decision in February 2020 (Palmer says it was one of the longest-running trials in Canadian history) ruling against Dr. Day and company.

Day appealed the decision but in July 2022:

A panel of three justices at the B.C. Court of Appeal on Friday rejected Dr. Brian Day’s argument that a lower court judge had made critical errors of fact in denying his constitutional challenge to legislation that prevents patients from accessing private care when wait times in the public system are too long.

 

Dr. Dutt

That rulings were greeted with enthusiasm by the CDM, tempered by the acknowledgement that there are real problems in our healthcare system that must be addressed. Former NDP leader Ed Broadbent and Dr. Monika Dutt, a member of the CDM board, wrote a response in the Toronto Star that said:

The verdict was decisive: In page after page, the judge describes how the measures the plaintiffs wanted would “introduce a second tier of preferential health care on the basis of one’s ability to pay and not medical need.” He stated that the changes being demanded would, “discriminate against the poor and ill … [and] exacerbate existing health inequities.”

But with the case “in the rear-view mirror,” they turned to changes in “federal, provincial and territorial policies that we know will improve the health of people across Canada,” starting with universal pharmacare, but moving on to the wider implementation of solutions that have been shown to work:

B.C. has already taken important steps to reduce surgical wait times by increasing publicly funded surgical capacity and expanding the use of best practices, like centralized wait-lists so patients see the “next available” surgeon, increasing MRI capacity, and improving access to interdisciplinary teams.

Other jurisdictions, such as Saskatchewan, have employed similar methods to reduce wait times. E-consultation with specialists by both family doctors and patients has reduced the need for patients to wait for in-person specialist appointments and has decreased ER visits.

We also need a particular focus on reducing inequitable access to care, and the significant attention to virtual care during the pandemic can help do that. For those living in rural and remote communities, in many situations it can be an extremely effective way to reach appropriate care.

The same is the case with rural Ontario’s Virtual Triage Assessment Centre, which promises same-day virtual access to family doctors in a county where 20 per cent of the population doesn’t have a family physician.

Their conclusion is pretty solid, so I’m going to steal it:

The long-running Cambie case is an important win for our cherished Medicare system. It’s now time to take what we learned from the trial in terms of how health care would be worsened from an increasingly privately funded model and move forward on delivering more equitable, effective health care for all Canadians.