Steven Lewis: A long-shot lawsuit might improve Canadian health care

Saskatchewan women sent to Calgary for mammograms, at two grand a pop. B.C. cancer patients dispatched to Washington State for routine treatment.

Six and a half million Canadians without a primary care home. Tortured waits to see specialists. Patients flying to Latvia for hip replacements. A burnt-out workforce. Clueless health workforce planning.

Article content

Is medicare on its last legs? How bad does it have to get for governments to focus on fixing it instead of
banning surgery that no one gets or dictating to schools how to address students’ mental health and safety issues? If we’re mad as hell, and resolved not to take it anymore, what can we do?

Article content

It’s a government-run system, so from time to time people go to court to demand a service or overturn legislation. Some have won and some have lost, but winning or losing doesn’t seem to make much difference.

In 2005, the Supreme Court found that Quebec’s ban on private insurance for physician and hospital services violated the province’s Charter of Human Rights and Freedoms. Since then, no Quebeckers have bought insurance for these core medicare services because no one has sold it.

In 2023, the B.C. Court of Appeal confirmed a lower court ruling that a private surgical clinic can’t extract surcharges from patients referred from the public system, nor can it charge private-paying patients what it likes outside the public system. Two tier is officially verboten.

I recently got a rapid tutorial from two stellar health law professors on whether or not a different approach might work: a class action suit on behalf of the millions of people left high and dry by the system. They are skeptical, but not entirely dismissive, which I take as a licence to play lawyer for a day.

I would take a provincial government to court on behalf of the 15 to 20 per cent of residents who
do not have a primary care home. The case would rest on three pillars.

Article content

Article content

One would be a Section 7 Charter claim that failure to provide access to primary care violates the “life, liberty and security” of too many people.

The B.C. Court of Appeal conceded that access problems violate Section 7 rights, but not enough to trump the higher objective of sustaining a universal public system.

The argument here would be that the harm caused is no longer an inevitable and occasional bit of collateral damage, but a catastrophic failure that demands a sweeping remedy.

Pillar 2 would be to ask the court to define what the principle of accessibility means in the Canada Health Act. It means nothing now; if it is to mean something, what? The court could take a stab at defining it, or direct the government to do so.

The courts have been reluctant to define it because they don’t want to tell governments how to spend money. The challenge would present evidence that other prosperous countries provide much better
access without spending more (and often less) than Canada.

Pillar 3 would be to invoke Canada’s commitment to international covenants such as the Astana Declaration of 2018, which asserts that access to a well-funded, robust and effective primary health-care system is a human right.

Article content

Such commitments do not on their own have legal force in Canada, but they have influenced developments in Indigenous policy and law.

The case would be a long shot. But merely launching it could have a salutary effect. It might concentrate the minds of governments unsettled by the spectacle of having their chronic and expensive failures subjected to withering examination.

It might fire their imaginations and stiffen their resolve to try something that might actually solve the
problem, a bracing contrast to the timid remedies currently on offer.

Courts should be remedies of last resort for failures of public policy and organization. A hundred thousand people marching on a legislature to demand a proper primary care system would be more effective than anything a court might decide. That, for reasons that escape me, isn’t happening.

If not the streets, then, sadly, maybe a quixotic court case with a new twist is all we have.

Steven Lewis spent 45 years as a health policy analyst and health researcher in Saskatchewan and is currently adjunct professor of health policy at Simon Fraser University. He can be reached at slewistoon1@gmail.com.

Our websites are your destination for up-to-the-minute Saskatchewan news, so make sure to bookmark TheStarPhoenix.com and LeaderPost.com. For Regina Leader-Post newsletters click here; for Saskatoon StarPhoenix newsletters click here.

Article content