chapter  18
12 Pages

Just Medicare: The Role of Canadian Courts in Determining Health Care Rights and Access

A ccess to care has become a key and contentiousissue in the Canadian health care system. Inthis article, I explore the role of Canadian courts in determining rights to access public health insurance (Medicare), beginning with a brief overview of the Canadian system and its distinguishing features, and then moving to discuss challenges to governmental limits on publicly-funded Medicare using the Canadian Charter of Rights and Freedoms* I argue that the Canadian courts are not, as is often charged, proactive in this area. I question whether the deference exhibited by courts to governmental limits on Medicare is justified given concerns about the fairness of the principles and processes followed by decisionmakers. In sharp relief to the judiciary's conservative approach to applications for better or timely access to publicly-funded Medicare is the recent Supreme Court of Canada's decision in Chaoutti v. Quebec (Attorney General)2 which upheld a right to buy private health insurance for "medically necessary" hospital and physician services. This decision overturned legislation in the province of Quebec prohibiting private health insurance. This case raises the prospect of future Charter challenges to provincial legislation designed to prevent the flourishing of a private sector. It seems that Canadian courts are destined to play a significant role in determining the future balance between public and private insurance in the Canadian health care system. Sadly, however, Canadian courts to date have staked out only a very limited role to help improve the internal fairness and operation of publicly-funded Medicare itself.