POLI 478 Lecture Notes - Lecture 8: Declaratory Judgment, Physician Supply, Auton
12 Jun 2018
School
Department
Course
Professor
Healthcare and the Charter
Focus on use of Charter litigation by advocates of healthcare policy reform.
• Why Charter litigation?
o Provides alternative access point to policy process
o Generates output (constitutional right) less subject to normal constraints, e.g. public
opinion; financial considerations
• Introduces new dynamic into healthcare policymaking: a symbolically + operationally important
policy sector
o % of Caadas GDP i
o $36.1 billion in federal transfers (2016-17)
o 40% of total provincial + territorial program spending: major part of their budgets
Context: increasing recognition of rights-based litigation as instrument for developing healthcare policy.
• Key literature: Jackman (1995/96); Braen (2002); Jackman (2002); Greschner (2002)
• Several key areas already subject of Charter decisions:
o Physician supply management: principal driver of costs → balancing # of physicians with
cost of healthcare system
▪ B otollig ed shool adissios + phsiias iter-provincial mobility
o Medical practice regulation: controlling internal provincial distribution of physicians
▪ Incentives/disincentives for physicians to work in certain areas
▪ Rocket v. ON (1990) overturned ban on medical advertising
o Hospital restructuring: several cases challenged, most unsuccessful (ex. Lalonde v. ON)
o Regulation/provision of special treatments + services: e.g. Morgentaler
Looking at two s.7 + s.15 cases: heard by SCC around same time, but former took longer to be decided.
• Variation in litigant, outcome, lower court decisions, and public-private objective.
- Why do policy advocacy groups litigate?
- How do groups develop litigation strategies and tactics?
- How does policy advocacy litigation affect the development of legal rules and policy?
Auton (2004)
Chaoulli (2005)
Attempt to expand healthcare coverage by
establishing constitutional obligation under s.15
for provinces to fund a specific autism treatment.
Attempt to constrain healthcare system by
challenging constitutionality of legal prohibitions
against private provision of healthcare under s.7.
Movement litigant
Individual litigant
Won in all lower courts
Lost in all lower courts
Unsuccessful
Partially successful
Chaoulli v. Quebec (2005)
Heard by SCC in June 2004.
• Under QC law, illegal for insurance companies to sell private insurance covering services
provided under public system
o Private healthcare legal in QC, but full cost of services must be charged
How did this issue enter the judicial process?
• Zeliotis + Chaoulli, the major litigants, had no prior relationship
find more resources at oneclass.com
find more resources at oneclass.com
o Patient: Zeliotis needed hip replacements, but during his year-long wait, realized he
could not obtain private insurance/pay directly for private services
o Doctor: Chaoulli had dropped out of QC healthcare system + was well-known in medical
circles for his attempts to set up a home-based, 24hr practice
▪ Had previously attempted hunger strike (1996) to draw attention to his situation
• Litigation strategy + tactics: in 1997, Chaoulli & Zeliotis presented 2 motions for declaratory
judgment against:
o QC Health Insurance Act article 15: proscribed private insurers from covering publicly-
funded services
o QC Hospital Insurance Act article 11: prevented non-participating physicians from
contracting for services in publicly-funded hospitals
• Superior Court trial began in Dec. 1997: heard testimony from medical specialists + several
epets i the healthae seto e.g. Castogua, the fathe of Mediae
o Chaoulli epeseted hiself: ephasized etal aguish of disiiatio agaist
non-participating doctors in QC system
o )eliotis ousel Tudel = a epeat plae, hose fi speialized i edial litigatio:
challenged articles 11 + 15 of the Acts under Charter ss. 7 + 15
• Justie Pihés judget (Feb. 2000): ss.7 + 15 claims dismissed
o Since QC healthcare laws were regulations, not prohibitions, they conformed to
provincial responsibility
o “ie )eliotis did eetuall eeie his hip eplaeets, he did ot eall suffe all of
the misfortune and dela that he lais i his depositio
▪ Questioed Chaoullis otiatio: deploed his use of the out i a pesoal
usade agaist the QC healthae sste
o Reminded plaintiffs that SCC usually interpreted Charter to serve public good
▪ Access to healthcare = right, but no right to determine its provenance
▪ Limitations on private insurance + healthcare only contravened s.7 if public
system could not guarantee access to similar care: not in conflict with principles
of fundamental justice
o Conclusion: Piché commented on courts vs. legislatures issue
▪ Agreed on need for change in system, but believed this question was political,
rather than legal (315) – restrained approach
• Head at QC Appeal Cout No. : upheld Pihés deisios Ap.
o Emphasized broadened definition of right to access to care
▪ Prohibition of right to private healthcare = an economic right, and not
fudaetal to the life of the peso
Why did Chaoulli fail at the lower courts?
• Unsympathetic plaintiffs: Chaoulli, in particular
• Persuasive experts on government side: issues w/system raised, but no consensus that it should
be changed in the way in which the plaintiffs were demanding
o Majority of policy experts against a parallel private system
• Unfavourable venue: QC emphasis on equal access to care since 1971 predated both Canada
Health Act + Charter
• Judicial factors:
o “keptiis e. Chaoullis oties
o Aware of + acknowledged polit. ramifications of issue at hand
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Focus on use of charter litigation by advocates of healthcare policy reform: why charter litigation, provides alternative access point to policy process, generates output (constitutional right) less subject to normal constraints, e. g. public opinion; financial considerations. Introduces new dynamic into healthcare policymaking: a symbolically + operationally important policy sector: (cid:1005)(cid:1005)% of ca(cid:374)ada(cid:859)s gdp i(cid:374) (cid:1006)(cid:1004)(cid:1005)(cid:1008, . 1 billion in federal transfers (2016-17, 40% of total provincial + territorial program spending: major part of their budgets. Incentives/disincentives for physicians to work in certain areas: rocket v. on (1990) overturned ban on medical advertising, hospital restructuring: several cases challenged, most unsuccessful (ex. Lalonde v. on: regulation/provision of special treatments + services: e. g. morgentaler. Looking at two s. 7 + s. 15 cases: heard by scc around same time, but former took longer to be decided: variation in litigant, outcome, lower court decisions, and public-private objective. Attempt to expand healthcare coverage by establishing constitutional obligation under s. 15 for provinces to fund a specific autism treatment.
