Abstract

A commentary on: Health Services Research after Chaoulli v. Quebec (Attorney General): New Inspiration, New Challenges The Supreme Court of Canada's decision in Chaoulli v. Quebec (Attorney General)1 has caused the federal and provincial governments to address the issue of patient wait times with an urgency unseen in the last several years. The governments' ability to reduce wait times may be the deciding factor in whether private healthcare becomes a reality across Canada in the future.

Notwithstanding the narrow 4-3 decision, all of the justices in Chaoulli found that depending on the severity of the consequences, a lack of timely access to healthcare may infringe a patient's rights to life and security of the person under section 7 of the Charter. Chief Justice McLachlan and Justice Major poignantly observed that "[a]ccess to a waiting list is not access to healthcare."2

While the majority and the dissent disagreed as to whether these infringements were in accordance with principles of fundamental justice and constituted a reasonable limit in a free and democratic society, the initial finding that a denial of health services within a reasonable time can trigger section 7 rights is a significant one. However, the dissenting justices in Chaoulli expressed clear frustration in arriving at this decision and having to ascribe constitutional norms to health policy and practice. They stated:

What, then, are constitutionally required "reasonable health services"? What is treatment "within a reasonable time"? What are the benchmarks? How short a waiting list is short enough? How many MRIs does the Constitution require? The majority does not tell us. The majority lays down no manageable constitutional standard. The public cannot know, nor can judges or governments know, how much healthcare is "reasonable" enough to satisfy s. 7 of the Canadian Charter of Rights and Freedoms ("Canadian Charter") and s. 1 of the Charter of Human Rights and Freedoms, R.S.Q. c. C-12 ("Quebec Charter"). It is to be hoped that we will know it when we see it.3

There is therefore considerable optimism that the establishment of benchmarks will give the Court the guidance that it seeks. Given the increased legal significance of the setting of benchmarks for wait times, Seeman and Brown point out in their article that numerous factors must be considered, not the least of which involve the removal of biases from expert opinions and the need to ensure that benchmarks are neither too stringent nor too relaxed to be effective. They correctly observe that "it will take time for benchmarks to become generally accepted among health practitioners."

At this time, federal and provincial governments are contemplating the implementation of the findings of the Wait Time Alliance's recommendations in reducing wait times in five priority areas (cancer, heart, diagnostic imaging, joint replacements and sight restoration). A target of December 31, 2005 has been set for the establishment of evidence-based, pan-Canadian benchmarks for wait times in these priority areas. It is anticipated that these benchmarks will serve to reduce and eliminate waiting times for procedures in these areas.

It is noteworthy, however, that even the most well-founded benchmarks are still subject to scrutiny, and even rejection, by the courts. Thus, these benchmarks may not have the desired effect of establishing constitutional norms insofar as rights to life and security of person are concerned.

By way of analogy, the Supreme Court of Canada has made it clear that in the context of medical negligence cases there is an obligation on the courts to rely on expert evidence in establishing whether a physician's conduct has met the accepted standard of practice. The Court has noted, however, that there will be circumstances in which the accepted standard of practice will not be acceptable. The Court stated:

It is evident ... that while conformity with common practice will generally exonerate physicians of any complaint of negligence, there are certain situations where the standard practice itself may be found to be negligent. However, this will only be where the standard practice is "fraught with obvious risks" such that anyone is capable of finding it negligent, without the necessity of judging matters requiring diagnostic or clinical expertise.4

If the decision in ter Neuzen provides any insight, it is that the courts will perform a rigorous evaluation of the available expert evidence in determining the appropriate benchmarks for wait times, and whether those benchmarks, even if reflecting the standard of practice, stand up to the scrutiny of the common sense of reasonable persons.

Because the right to security of person in section 7 of the Charter protects an individual from psychological harm as well as physical harm, there may be cases in which a person's right to security of person may be violated notwithstanding that a wait time falls within the established benchmark. Moreover, a patient who risks dying while waiting for health services that may nevertheless be delivered within an established benchmark wait time would surely have a claim to a violation of his or her right to life under section 7.5 In such situations, a court may have ground to find the benchmark wait time, even if it approximates a standard accepted by the medical profession, as being nevertheless unreasonable.

Ultimately, the establishment of acceptable wait times is necessary for the reforms already needed in the strained and overburdened public healthcare system. That they may now be used as a shield against the development of private insurance gives further motivation to a federal government that is staunchly in support of a single-payer, public health system. It must be recognized, however, that benchmarks may not be the final word on what the courts deem to be acceptable for the timely delivery of health services.

About the Author

William P. Georgas is an associate with Fasken Martineau DuMoulin LLP. He can be reached at wgeorgas@tor.fasken.com

Lynne Golding is a partner at Fasken Martineau DuMoulin LLP and Chair of its National Health Law Group. She can be reached at lgolding@tor.fasken.com.

Acknowledgment

The article "Health Services Research after Chaoulli v. Quebec (Attorney General): New Inspiration, New Challenges" by Neil Seeman and Adalsteinn D. Brown appeared in the August issue of Law & Governance.

Footnotes

1. 2005 SCC 35 ("Chaoulli").

2. Chaoulli at para. 123.

3. Chaoulli at para. 163.

4. ter Neuzen v. Korn, [1995] 3 S.C.R. 674 ("ter Neuzen") at para. 41.

5. In Chaoulli, at para. 123, Chief Justice McLachlan and Justice Major stated: "Where lack of timely healthcare can result in death, s. 7 protection of life itself is engaged."