In the last year, the Health Services Appeal and Review Board of Ontario (the "Board")¹ rendered two noteworthy decisions that considered the circumstances under which a person may seek medical treatment outside of Canada and have such treatment covered under the Ontario Health Insurance Plan ("OHIP"). The Board granted Ontario residents David King² and Sandra Posluns³ their requests for reimbursement of expenses incurred for hip replacement surgery obtained in the United States of America (the "U.S."). Both patients were able to satisfy the requirements for reimbursement by demonstrating that the delay in obtaining surgery in Canada would result in medically significant irreversible tissue damage, and that it was necessary to travel outside of Canada to avoid such delay.

These decisions highlight the potential implications of long wait times, and the avenues that may be available to Ontarians to seek treatment elsewhere. Such mechanisms to reduce wait times have taken on new significance in light of the Supreme Court of Canada's recent decision in Chaoulli v. Québec (Attorney General)⁴ concerning timely access to healthcare.

Requirements for Obtaining Insured Services Outside of Canada

The King and Posluns decisions demonstrate the tests that must be met under Ontario law to obtain insured services outside of Canada.

In April 2001, David King began to experience pain in his right hip and was subsequently diagnosed with advancing deterioration of the right hip socket. By January 2003, Mr. King's condition reached a stage where he could perform few daily functions without experiencing severe pain. For example, Mr. King was not able to get out of bed or put on his own socks and shoes without assistance.

In May and June 2003, King sought to meet with several orthopaedic surgeons, and was told that an appointment could not be scheduled before September, 2003. He was further advised that he would have to wait an additional twelve months to obtain the required surgery. King then contacted the OHIP office to inquire about the possibility of undergoing surgery in the U.S. He was told that OHIP would probably not cover the costs of hip replacement surgery performed outside of Canada as the treatment was offered in Ontario. At no time was King advised by OHIP or his family physician of the requirement to make an application to OHIP to seek approval from OHIP prior to obtaining surgery in the U.S. In July 2003, X-rays demonstrated that the deterioration had doubled within a ten week interval. Later that month, King elected to obtain hip replacement surgery in the U.S.

Sandra Posluns, a sixty-year-old woman, was diagnosed with severe osteoarthritis requiring a total hip replacement. After consulting with an orthopaedic surgeon, she was advised that she would have to wait between 18 to 24 months to obtain surgery. Posluns subsequently contacted two other orthopaedic surgeons, who advised her that she would have to wait several months just to obtain an initial assessment. At this time, she was in "agony" and "could not function in any normal capacity." For example, she could not walk across her living room floor, get on and off the toilet, or get in and out of a car without assistance because of the pain." Consequently, Posluns opted to obtain total hip replacement surgery in Naples, Florida, U.S.

Both King and Posluns applied to the General Manager of OHIP for reimbursement of the costs incurred as a result of obtaining surgery in the U.S. Both applications for reimbursement were denied and subsequently appealed to the Board.

In rendering its decisions, the Board in both cases considered the Health Insurance Act⁵ (the "Act") and the Regulations made under it as they apply to "insured services". Section 12 of the Act states that every insured person is entitled to be provided with, or to receive payment for "insured services".⁶ For the most part, "insured services" under the Act only include health services rendered in Ontario.

However, Regulation 552⁷ under the Act provides, among other things, for payment of out-of-country health services in two circumstances: first, when an insured person is outside Canada and an emergency arises which requires immediate medical treatment; or second, when the services are rendered outside of Canada with the prior approval of OHIP.

In the latter situation, section 28.4 of Regulation 552, establishes the criteria and conditions under which outof- country treatment will qualify as an "insured service" under the Act.⁸ In determining whether the requirements of this section have been satisfied, the Board had to decide the following:

1. Is the treatment generally accepted in Ontario as appropriate for a person in the same medical circumstances as the insured person?
   
2. Is the treatment performed in Ontario by an identical or equivalent procedure?
   
3. If the treatment is performed in Ontario, is it necessary for the Appellant to travel out of Canada to avoid a delay that would result in death or medically significant irreversible tissue damage?

In both cases, the Board found that the first two questions or criteria had been satisfied.

The only remaining issue was whether it was necessary for the appellants to travel outside of Ontario to avoid a delay that would otherwise result in "death" or "medically significant irreversible tissue damage". This required the appellants to prove that: (1) a delay would result in "death" or "medically significant irreversible tissue damage"; and (2) to avoid such delay, it was necessary for them to travel outside of Canada.

It both cases, the Board considered competing medical evidence before holding that a delay in hip surgery would lead to "medically significant irreversible tissue damage". The Board then considered the amount of time and effort made by both appellants to secure surgery in Ontario. Ultimately the Board found that both appellants had made significant efforts to secure surgery in Ontario, and that it was necessary for each of the appellants to travel to the U.S. to avoid delay. In King, the Board noted the following:

We find Mr. King did everything reasonable to find earlier surgery in Ontario: he consulted with his family physician - who, in turn, telephoned some orthopaedic surgeons in Ontario - and he telephoned OHIP directly, still, he was not able to get the surgery any earlier in Ontario. On this evidence we find that it was necessary to travel out of the country to avoid the delay in getting this surgery.

These decisions demonstrate the current requirements under Ontario law for obtaining reimbursement for medical services obtained outside of Canada. Reimbursement in Ontario is clearly difficult to obtain. While the province's power of reimbursement has been exercised sparingly, it may now need to be re-examined in light of the recent decision in Chaoulli.

The Right to Life and Security of the Person

In a 4-3 decision, the Supreme Court of Canada in Chaoulli ruled that the prohibition of private insurance or the payment of medical or hospital services that are covered under the province's health care plan, contravenes the Québec Charter of Human Rights and Freedoms.⁹ However, the Court further split 3-3 in its ruling on whether the prohibition on private health insurance violated Section 7¹⁰ of the Canadian Charter of Rights and Freedoms,11 with Madam Justice Deschamps declining to make a ruling on the Canadian Charter. Because Chaoulli was decided on a 4-3 split in respect of the Québec Charter, the 3-3 decision leaves open the question of how wait times are to be scrutinized under the Canadian Charter. However, because the Canadian Charter applies to all provinces, it is instructive to examine the conclusions of the justices on this issue.

While the judges who considered the application of the Canadian Charter were divided as to whether the prohibition on private health insurance ultimately violated Section 7 of the Canadian Charter, they all agreed that a lack of timely health care may nevertheless infringe a patient's right to life and security of the person.

Chief Justice McLachlin and Justice Major, who were in the majority of the 4-3 split, found that where lack of timely health care can result in death, the Section 7 protection of life is engaged.

They further found that the right to security of the person is infringed where a lack of timely health care results in "physical and psychological suffering" that meets a threshold test of "serious", and that such physical and psychological suffering is not in accordance with the principles of fundamental justice:

In addition to threatening the life and the physical security of the person, waiting for critical care may have significant adverse psychological effects. Serious psychological effects may engage s. 7 protection for security of the person. These "need not rise to the level of nervous shock or psychiatric illness, but must be greater than ordinary stress or anxiety"…¹²

…The impact [on security of the person], whether psychological or physical, must be serious. However, because patients may be denied timely health care for a condition that is clinically significant to their current and future health, s. 7 protection of security of the person is engaged.¹³

Based on the decision of the majority in Chaoulli, it would appear that Section 7 protection is engaged when lack of access to treatment gives rise to both physical and psychological suffering.

Access to Out-of-Country Treatment, post- Chaoulli

The mechanism in section 28.4 of Regulation 552 that allows Ontario patients to seek, and be reimbursed for, medical services in the U.S. is meant to act as a safety valve when wait times become so long that they significantly endanger the life or health of the patient and treatment becomes required on an urgent basis. This safety valve was in place well before the Supreme Court of Canada rendered its decision in Chaoulli.

The fact that that Regulation 552 allows patients to seek out-of-country medical services when a delay in treatment could lead to death is clearly consistent with the decision in Chaoulli that wait times are unacceptable when a patient can die while waiting for medical services.

However, it is less clear as to whether allowing patients to seek out-of-country treatment when a delay could lead to "medically significant irreversible tissue damage" is consistent with that part of the Chaoulli decision that holds that wait times are unacceptable when a patient can suffer "serious physical or psychological harm" while waiting for medical services.

The threshold test of "serious physical or psychological harm" not entirely clear and has a significant subjective component. This makes it a difficult test to apply to determining when a patient should qualify for out-ofcountry insured services. Madam Justice Deschamps, in finding that the right to personal inviolability¹⁴ in the Québec Charter was affected by waiting times, noted that "patients on non-urgent waiting lists are in pain and cannot enjoy any real quality of life."¹⁵ Chief Justice McLachlin and Justice Major accepted that "the harm suffered by patients awaiting replacement knees and hips is significant. Even though death may not be an issue for them, these patients 'are in pain', 'would not go a day without discomfort' and are 'limited in their ability to get around', some being confined to wheelchairs or house bound."¹⁶ Reasoning such as this suggests that a patient need not be at the point where he or she risks suffering "medically significant irreversible tissue damage" before his or her right to security of the person is engaged.

It is noteworthy that the Québec government has successfully applied for a suspension of the Supreme Court's ruling in Chaoulli that the prohibition on private health insurance is of no force or effect. The Supreme Court has granted Québec one year from the date of its decision in Chaoulli (i.e. June 9, 2005) to make the changes necessary to bring its health care system into compliance with the decision.

While government officials in Québec have thus far been silent as to the measures they are considering in order to comply with the Chaoulli decision, it has been suggested that if the Québec government were to reduce wait times to the point where people do not die or suffer serious physical or psychological harm while waiting for treatment, then it would not be necessary to eliminate its prohibition on private health insurance.

This is instructive to Ontario, and any other province that may seek to avoid having their single-payer, public health care systems subjected to the scrutiny of Section 7 of the Canadian Charter, by reducing wait times to ensure that people do not die or suffer serious physical or psychological harm while waiting for treatment. It has been suggested that allowing patients to seek out-of-country insured services would relieve wait times and ensure that patients do not experience the suffering that would infringe their rights to security of the person. However, it remains to be seen as to whether the current requirements that must be met in order to qualify for out-ofcountry insured services pursuant to Regulation 552 set a clinical standard that exceeds the serious physical and psychological suffering that would otherwise engage a patient's Section 7 rights.

The King and Posluns decisions clearly demonstrate the high standards that must be met in order to qualify for reimbursement for out-of-country insured services. Given the burden that must be met to qualify, this process may only be a safety valve for patients in the most dire need of medical treatment. Patients who do not yet risk suffering the "medically significant irreversible tissue damage" necessary to qualify for out-of-country insured services may nevertheless already be suffering from serious physical and psychological pain that affects their quality of life. This certainly raises the question of whether the current requirements for obtaining reimbursement for out-of-country treatment would successfully prevent the suffering that would trigger a violation of a patient's right to security of the person.

As provinces examine ways to reduce wait times in order to avoid being subject to a Chaoulli-type of decision, they will need to closely examine whether they have adequate safeguards in place to protect the lives and health of their patients on waiting lists. A lack of consistency between these safeguards and the standards set out in Chaoulli may very well make a province's public health care system vulnerable to a challenge alleging an infringement on patients' rights to life and security of the person.

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