Ottawa Should Enforce the Canada Health Act

By Amir Attaran
Ottawa Citizen
April 20, 2011

It is a mystery. In poll after poll, Canadians finger health care as a vital election issue, but weeks onto the hustings, party leaders seldom discuss it.

That is lamentable: Canada's health-care system is at a crossroads greatly more complex than the campaign's glib talking points (heard enough about waiting lists yet?). The crossroads are medical and legal.

To be sure, Canada's health system is troubled. Yet the reason is not because of rising health-care spending, as some claim. True, spending grows faster than GDP, but that is because Canadians choose to live longer or stronger, so they buy more health care, and create more highly skilled health-care jobs -hardly an unwise, unjust or unsustainable deal. Better medical technology means there is more health care to buy. Some economists fret that new and better medical technology will drive spending increases and crowd out other purchases, but that is irrational: nobody complains when new and better information technology creates more laptops, iPads or BlackBerrys, which also influence buying patterns. Economic over-ambition, simply put, is not the health system's most serious problem.

The problem, rather, is managerial under-ambition. Ottawa is strikingly negligent in managing the federal part of the health system to the extent of breaking its own laws. That problem predates the Conservative government, but the Harper government has made it worse.

The Canada Health Act requires that, whether in public or private facility, medically necessary care is free to the patient. Extra-billing and user charges are illegal. The law also requires Ottawa to punish provinces dollar for dollar when extra-billing or user charges occur on their watch. Thus, if a province illegally turns a blind eye as doctors or clinics levy charges on patients totalling $10 million, the law requires of Ottawa that $10 million "shall be deducted from the cash contribution to the province" -no exceptions.

But the Canada Health Act is being violated regularly. In Ontario alone, the Canadian Medical Association Journal cites recent estimates that about 90 clinics are charging patients illegally. In B.C., a surgeon, Brian Day, invites journalists to his clinic where patients are operated on and extra-billed.

Nor is it only private health-care clinics that illegally extra-bill and levy user charges. Across the country many public hospitals do it to avoid paying for expensive medicines administered in the hospital. Equating illegality with "privatized" care is not accurate.

Surely with so many health facilities involved, the illegal charges must total in the tens or hundreds of millions of dollars. Yet the Harper government refuses to enforce the law. Since 2006, it has docked less than $400,000 from provincial transfer payments -an amount so pathetically small that some individual patients pay more. It is a dismal performance from a party that in 2006 "committed to a universal, publicly funded health-care system that respects the ... Canada Health Act."

Whichever government is elected, continued failure to enforce the act could be very destructive. What is to stop provinces from whittling away the public health-care system, when they know the neediest patients will cry uncle and pay for what the law says that system must provide for free? The only plausible disincentive is federal enforcement of the act to claw back the money the province saves by breaking the law. But Ottawa itself is breaking the law in not deducting what the law says "shall be deducted" -no exceptions.

None of this is to say the Canada Health Act is perfect. It is not. In his activist days, Stephen Harper spoke for many when he said: "It's past time the feds scrapped the Canada Health Act." But as prime minister, Harper's duty is enforcing Canada's laws, whether he agrees with them or not. And logically, surely he should try enforcing, or else it is premature to conclude that the act ought to be scrapped.

But opposition politicians, too, must be more analytic about their intentions on the act. Calling for the preservation of the status quo, except with the addition of more doctors or nurses, or perhaps a prescription drug plan, as Liberal Leader Michael Ignatieff and NDP Leader Jack Layton have done, is inadequate if the status quo is shot through with routine illegality. The Chrétien and Martin governments were soft on enforcement, too, so this is not strictly a partisan problem.

In the remaining weeks of the campaign, the health-care debate will sharpen. Harper should be asked why he refuses to enforce the Canada Health Act. Ignatieff and Layton should be asked how they would enforce it, given the chance. All possibilities should be evaluated with equanimity and maturity -including even scrapping the act, if Harper still believes in that. But no party that lacks a plan for enforcing Canada's cornerstone law for health can be rated seriously as managers for Canadians' health, or what will soon be the largest sector of Canada's economy.

Amir Attaran is Canada Research Chair in Law, Population Health and Global Development Policy, Faculties of Law and Medicine , at the University of Ottawa.