Standing Senate Committee on Social Affairs, Science and Technology (37th Parliament, 2nd Session)

Past Session:

The Health of Canadians – The Federal Role

Final Report

Volume Six: Recommendations for Reform

PART III: THE HEALTH CARE GUARANTEE

CHAPTER FIVE

TIMELY ACCESS TO HEALTH CARE

Most of Volume Six covers specific issues relating to the delivery of health care. Hospital restructuring, financing health care, primary health care reform and expanding public coverage for prescription drugs, some home care and palliative care are all critical components of a fiscally sustainable health care system. This chapter, however, focuses on a less frequently discussed, but very important, issue – the right to health care and the implications of the Canadian Charter of Rights and Freedoms (the Charter) for the provision of timely access to medically necessary care.

Timely access to needed care does not necessarily mean immediate access. Nor is the issue of timely access limited to life-threatening situations. Timely access means that service is being provided consistent with clinical practice guidelines to ensure that a patient’s health is not negatively affected while waiting for care.

The issue of timely access to health care is of particular importance at this time for the following reasons. First, repeated public opinion polls increasingly have shown that the greatest concern Canadians have about the existing publicly funded health care system is the perceived length of waiting times for diagnostic services, hospital care and access to specialists. This concern is evidence that timely access to health care – as that is defined by patients – is often not available.

Second, the lack of timely access to needed care can seriously contribute to the deterioration of a person’s health and well-being. Given this fact, it is likely that increasing pressures will be exerted on governments, hospitals and physicians to ensure that medically necessary care is provided, within the publicly funded health care system, in a timely manner. It is also very likely that, failing substantial improvement, Canadians will exert pressure on government to make it legally possible for individuals to obtain timely care in a parallel private hospital and doctor system.

Third, if the pressure on government is not effective, for the reasons described below, the Committee believes that the courts are likely to rule unconstitutional current laws that effectively prevent Canadians from paying privately, in Canada, for health care services that are publicly insured.

Therefore, solving the timely access problem is critical if Canada is to preserve the single insurer model of the publicly funded hospital and doctor system that Canadians, and the Committee, so strongly support.

Do Canadians have a right to health care? Can Canadians be prevented from obtaining timely care when the publicly funded health care system fails to ensure timely access? This chapter addresses these questions.

5.1 The Right to Health Care – Public Perception or Legal Right?

To begin, it is important to distinguish between a legal right to health care and the public perception of the existence of that right. In Volume Four, the Committee noted the existence of public opinion polls that reveal that Canadians, encouraged by politicians and the media, believe they have a constitutional right to receive health care even though no such right is explicitly contained in the Charter.[1] Nor does any other Canadian law specifically confer that right, although government programs exist to provide publicly funded health services.[2]

The preamble to the Canada Health Act[3] (the Act) states that:

continued access to quality health care without financial or other barriers will be critical to maintaining and improving the health and well-being of Canadians.

As well, section 3 of the Act provides that the primary objective of Canadian health care policy is:

to protect, promote and restore the physical and mental well-being of residents of Canada and to facilitate reasonable access to health services without financial or other barriers.

These statements from the Canada Health Act, supportive as they are, do not grant a right to health care.

Similarly, international instruments such as the Universal Declaration of Human Rights, 1948, to which Canada is a signatory, speak of the right to a standard of living adequate for health and well-being, including medical care and the right to security in the event of sickness and disability; but they too do not provide a basis for a constitutional, or even legal, right to health care.[4]

Clearly, there is a significant discrepancy between what the public believes and the absence of a legal right to health care.

Despite the absence of a legislated right to health care, there is a growing body of literature and court decisions on the effect of the Canadian Charter of Rights and Freedoms in the context of health care. Of particular interest are the implications of section 7 of the Charter for the provision of timely health care in Canada.

5.2 The Extent to which Publicly Insured Health Services are Available Outside the Publicly Funded Health Care System

In Volume Four, the Committee discussed the impact of the Canada Health Act on the provision of privately funded health care. We stressed that the Act does not prohibit the provision of privately paid-for health services. Rather, the Act sets out the conditions under which the provinces and territories will receive or be denied full federal funding for providing medically necessary physician and hospital services to their residents.[5]

In order to receive full federal funding, provincial and territorial public health care insurance plans must meet the five key conditions: public administration, comprehensiveness, portability, universality and accessibility. The Canada Health Act also creates an important incentive for the provinces and territories to discourage doctors and hospitals from extra-billing patients or imposing user charges for medically necessary health services. If extra-billing occurs or user charges are required, the federal cash contribution provided under the CHST can be reduced by an equivalent amount.

The Canada Health Act does not contain prohibit health care providers who do not bill their provincial health care insurance plans from delivering, and being compensated privately for, provincially insured health services. Moreover, the Act does not limit, in any way, the delivery of publicly insured services by privately owned (not-for-profit or for-profit) service delivery institutions. Indeed, private health care institutions currently deliver publicly insured health services in every province. What the Canada Health Act does is provide for significant financial penalties when provinces allow private payments for publicly insured services, particularly where extra-billing and user charges are involved.

Provincial and territorial legislation work in tandem with the Canada Health Act to discourage and/or prevent medically necessary services from being provided outside the publicly funded health care system. Physicians can opt out of providing services in the public health care system and bill patients directly, but a variety of provincial regulations effectively discourage physicians from doing so. Many provinces prohibit opted-out doctors from charging patients more than the public system rate. Some provinces deny reimbursement to patients who receive insured health services from opted-out doctors. Moreover, the majority of provinces do not permit private health care insurance to be purchased for services insured under provincial health care plans, even though all of them allow residents to purchase private insurance for hospital and physician services that are not classified as “medically necessary.”[6]

In Volume Four, the Committee said:

The Canada Health Act along with provincial/territorial legislation has prevented the emergence of a private health care system that would compete directly with the publicly funded one. It is simply not economically feasible for patients, physicians or health care institutions to be part of a parallel system.[7]

The end result is that Canadians have few, if any, real options in this country when the publicly funded health care system fails to provide timely care. Those who can afford to do so may seek care in the United States, but most simply wait hoping, sometimes in vain, that the public system can accommodate them.

5.3 Timely Health Care and Section 7 of the Canadian Charter of Rights and Freedoms

The presence of long waiting lists for certain medically necessary treatments and hence the absence of timely care raise a number of issues, not the least of which relate to the rights and entitlements of patients who are waiting for care. In this regard, in its Volume Four, the Committee posed the following questions:

If a right to health care is recognized under section 7 of the Charter, and if access to publicly funded health services is not timely, can governments continue to discourage the provision of private health care through the prohibition of private insurance?

Is it just and reasonable in a free and democratic society that government ration the supply of publicly funded health services (through budgetary allocations to health care) and simultaneously, effectively prevent individuals from obtaining the service in Canada, even at their own expense?[8]

These questions have provoked considerable debate that, in the Committee’s view, has significant implications for the Canadian health care system, as we know it. Indeed, the Committee raised these questions both to stimulate discussion and to caution governments that policies and laws that restrict, or discourage, access to privately funded health care will be increasingly difficult, if not impossible, to maintain if timely access to medically necessary care is not provided in the publicly funded system.

Thus, in the Committee’s opinion, the failure to deliver timely health services in the publicly funded system, as evidenced by long waiting lists for services, is likely to lay the foundation for a successful Charter challenge to laws that prevent or impede Canadians from personally paying for medically necessary services in Canada, even if these services are included in the set of publicly insured health services.

The Canadian Charter of Rights and Freedoms guarantees certain fundamental rights and freedoms. Section 7 of the Charter states:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

Although the Charter makes no explicit references to health care, it has been argued that section 7 has significant implications in the health care question. The section 7 argument is not based on a constitutional guarantee to government-funded health care, but rather on the section 7 rights to liberty and security of the person which, it could be argued, may be impaired if adequate and timely health care cannot be provided in the publicly funded health care system.

These rights, then, could be interpreted to imply that if individuals are unable to get timely care within the publicly funded health care system, governments should not be able to prevent an individual from paying for the service in order to obtain the service elsewhere in Canada. That is, while health care itself may not be a right, individuals do have the right not to be prevented by government from seeking timely health care elsewhere in Canada, if the service cannot be provided in a timely manner within the publicly funded system.

In 1994, the Canadian Bar Association Task Force on Health Care expressed the opinion that there is no right to health care under the Charter. This conclusion was based on the view that the Charter is often interpreted as a negative rather than a positive instrument – one that generally does not compel governments to act in a particular manner, but rather protects Canadians against coercive government action.[9]

In the context of health care, then, the Charter might not require governments to ensure that a certain level of health care is available in the publicly funded system, but the Charter could be employed to stop governments from taking restrictive measures that deny individuals from having the freedom to seek health care on their own in Canada when the publicly funded system fails to provide such care in a timely manner.

Indeed, the Task Force pointed out that individuals could advance the legal argument that section 7 includes a right to purchase health services when government cannot ensure, or is not willing to ensure, the provision of adequate services (which could clearly include a government not providing the service in a timely manner).[10]

Legal experts told the Committee that section 7 has application to health care and it is just a matter of time before its parameters are explored more thoroughly in the courts. Recent judicial decisions give evidence of a probable expansion of the Charter in relation to health care. Cases based on section 15 of the Charter, the equality section, have had some success.[11] But the implications of section 7 for timely access to health services have yet to be fully tested in the courts.

In a recent C.D. Howe Institute Commentary, entitled The Charter and Health Care: Guaranteeing Timely Access to Health Care for Canadians,[12] authors Stanley Hartt and Patrick Monahan examine whether governments can prohibit or impede Canadians from accessing medically necessary health services by paying for them privately, if timely access to such services is not available in the publicly funded health care system.

Basing their analysis on section 7[13] of the Charter, Hartt and Monahan conclude that, when the publicly funded health care system fails to provide timely access to medically necessary care, restrictions on private payment or the purchase of private health care insurance violate an individual’s right to liberty and security of the person guaranteed by section 7 and are inconsistent with the principles of fundamental justice. Because this Commentary is probably the most detailed examination of the application of section 7 in the health care context to date, the Committee believes it is worth outlining Hartt and Monahan’s arguments in some detail.

Hartt and Monahan maintain that an individual’s decisions with respect to his or her medical care are fundamental personal decisions affecting health, life and death and are therefore protected under the section 7 liberty guarantee. Consequently, when governments effectively prevent individuals from obtaining health care outside the publicly funded system, they have a concomitant obligation to ensure that timely care is provided within that system.

Hence, when the public system cannot or will not deliver timely care, Hartt and Monahan argue that individuals should be free to acquire the necessary care elsewhere. And hence, under these circumstances, restrictions on the ability to access care outside the public system, including restrictions on the right to buy private health care insurance, constitute a violation of the right to make personal decisions affecting life and health as provided under section 7’s liberty guarantee.[14]

The right to security of the person under section 7 has both a physical and a psychological aspect which, on the basis of the 1988 Supreme Court of Canada decision in the Morgentaler case, Hartt and Monahan interpret as encompassing the adverse physical and psychological impacts associated with excessive waiting for medical care. They assert:

Where governments institute measures that delay or impede access to medically necessary services and where that delay materially increases medical risks or otherwise results in adverse health consequences, the violation of security of the person is clear.[15]

Even if there is a limitation on the right to liberty or security of the person, however, section 7 will not be violated unless it can be shown that the limitation is inconsistent with the “principles of fundamental justice.” While the courts have concluded that fundamental justice has both procedural and substantive aspects, the term has not been specifically defined. Hartt and Monahan argue that it is manifestly unfair, and therefore contrary to the principles of fundamental justice, to establish a system where medically necessary services are for all intents and purposes accessible only through the public health care regime but are unavailable on a timely basis.[16]

Consequently, Hartt and Monahan maintain that, if health services are not available on a timely basis, then provincial governments cannot legally prohibit Canadians from obtaining those services in Canada, nor can the federal government use the financial penalties in the Canada Health Act to compel the provinces to enforce constitutionally invalid restrictions.[17] In other words, governments cannot fail to ensure the provision of timely access to medically necessary health services and at the same time prevent Canadians from obtaining such services outside the publicly funded system. This includes governments being unable to prevent Canadians from acquiring private health care insurance to cover the cost of purchasing such services outside the publicly funded system.

It would follow, if Hartt and Monahan are correct, that the Charter would prevent the prohibition by government of an individual’s right to obtain health services privately when the government fails to provide such services in a timely manner:

Existing restrictions on the private purchase of medically necessary services are entirely justifiable in circumstances where such medical services are available on a timely basis through the public system,[18]

(…) where the publicly funded health care system fails to deliver timely access to medically necessary care, governments act unlawfully in prohibiting Canadians from using their own resources to purchase those services privately in their own country. In these circumstances, the restrictions on private payment and private health insurance that are found in the laws of various provinces force Canadians into a system that, at a minimum compromises their health and potentially may endanger their lives.[19]

However, Hartt and Monahan’s analysis does not conclude that the only remedy is for government to relax the restrictions on an individual’s ability to purchase private health care insurance. Indeed, Hartt and Monahan believe governments can do one of two things – governments can either finance and structure the publicly funded health care system in such a way that it provides timely access to medically necessary care, or they can allow Canadians to buy that care if such access is not available in the publicly funded health care system in a timely manner.[20]

The Committee finds the Hartt and Monahan analysis compelling. However, at the same time, it should be noted that the Quebec Superior Court reached a different conclusion in a case [Chaoulli c. Québec (Procureure générale)][21] where section 7 of the Charter was used to dispute the Quebec government’s prohibition on the purchase of private health care insurance to pay for the private provision of health services which are also covered under the provincial health care insurance plan. Chaoulli dealt with the plaintiff’s wish to buy private insurance for future care and treatment to which timely access might be denied. In other words, the Chaoulli case dealt with potential future events that might possibly take place, and not with events that had already occurred. Thus, the Chaoulli case is not directly on the issue discussed in the Hart and Monahan paper because it is dealing with a speculative future event.

The Quebec Superior Court refused the Chaoulli claim, concluding that, although prohibitions on private insurance could violate rights of liberty and security of the person under section 7 of the Charter, it was nevertheless consistent with the principles of fundamental justice under section 7 to deny the ability to purchase private insurance for medical services covered under the Quebec public health care insurance plan.[22]

In determining whether the Quebec restrictions were consistent with the “principles of fundamental justice” and therefore not a violation of section 7, the Court sought to balance the right to purchase private health care insurance against the collective goal of ensuring equal access to medically necessary health services for all Quebec residents. To allow private health care insurance, in the court’s view, would compromise the integrity, proper functioning and viability of the publicly funded health care system.[23] In reflecting on this court decision, it is important to keep in mind that this was a decision by a court of first instance and has yet to be commented on by an appellate court or by the Supreme Court of Canada.

It is also worth noting that this conclusion was reached in spite of the fact that in European countries and Australia, which have universal and publicly funded health care systems, the purchase of private health care insurance is permitted and does not appear to have caused irreparable damage to the functioning and viability of their publicly funded health care systems.

It must also be pointed out that experience in these countries severely weakens the argument which some have made that even if the prohibition on purchasing health care insurance violates an individual’s right to timely health care, this violation can be justified under section 1 of the Charter. In order for this argument to be valid, the violation must be a “reasonable limit” that can be “demonstrably justified in a free and democratic society.” Since other free and democratic societies have universal health care systems and also allow individuals to purchase health care insurance which can be used to cover the cost of obtaining such services outside the publicly funded system, and since the health care systems in these countries appear to function effectively, the courts may be unwilling to accept the argument that the violation of an individual’s right to timely health care (by prohibiting a parallel private system) is a “reasonable limit that can be demonstrably justified.”

Although not argued on Charter grounds, another Quebec case (Stein v. Quebec (Régie de l’Assurance-maladie) took a different approach by holding the provincial government responsible for reimbursing a patient’s medical expenses incurred in the United States for treatment for a life-threatening condition when timely access to the required care was not available in Quebec.[24] In the Stein case, the patient was advised to seek surgery for life-threatening cancer no later than four to eight weeks after the diagnosis. After waiting longer than the suggested period for the required treatment, Stein sought medical care in New York. Subsequently, Stein contested the Quebec health care insurance board’s refusal to reimburse his medical expenses. The court sided with Stein, noting that in his circumstances, where the danger to his life was increasing daily, it was unreasonable for him to have to wait for surgery in Montreal. In this case, it is worth noting the emphasis the court placed on timely access to care.

5.4 Committee Commentary

Even though Canadian courts have not yet established a right to health care under the Charter, it is clear to the Committee that, when timely access to appropriate care is not available in the publicly funded health care system, the prohibition of private payment for health services becomes increasingly difficult, if not impossible, to justify. The rights to liberty and to security of the person under section 7 of the Charter are likely to be violated when timely access to publicly funded health care is denied and, simultaneously, Canadians are effectively prevented from obtaining the required care elsewhere in Canada.

The failure to address effectively the issue of the lack of access to timely care is also highly likely to lead to the establishment of a parallel private hospital and doctor system. Therefore, solving the waiting time issue, or lack of timely care problem, is critical if Canada is to preserve the single payer model of health care that Canadians, and the Committee, so strongly support.

It is the Committee’s strong belief that governments should not be passive and wait for the courts to determine how Canadians will gain timely access to medically necessary care. The time has come when governments must address the waiting time problem.

Governments cannot continue to turn a blind eye to the increasing problem of the lack of timely access to health care. They, and the providers of care themselves – particularly hospitals and physicians must find a solution to the problem of providing timely access to appropriate levels of health care.

The Committee’s preferred approach to solve the problem of long waiting times, and thus avoid the development of a parallel private system, is twofold: first, more money must be invested in health care for the purposes described in the other chapters of this report; and second, governments must establish a national health care guarantee – a set of nationwide standards for timely access to key health services – the parameters of which we explore in the next chapter.

CHAPTER SIX

The Health Care Guarantee

6.1 The Public Perception of the Problem of Waiting Lists

The accessibility principle of the Canada Health Act stipulates that Canadians should have “reasonable access” to insured health services. However, the Act does not define what constitutes reasonable access. Lately, concerns about access to health care have been associated with the problem of waiting lists and times – that is, lack of timely access is increasingly perceived to be a major problem plaguing the health care system. Of course, “timely” is a subjective word; what is timely to one person may be an eternity for another, particularly where illness is involved. Nevertheless, the Committee believes that “timely access” describes more accurately what the public expects from the publicly funded health care system than “reasonable access.”

Results of a study conducted by Statistics Canada released in July 2002[25] provide, for the first time, a reliable indication of the extent to which Canadians perceive lengthening waiting times to be a major failing of the publicly funded health care system. The survey revealed that “almost one in five Canadians who accessed health care for themselves or a family member in 2001 encountered some form of difficulty, ranging from problems getting an appointment to lengthy waiting times.”[26] And, of the estimated 5 million people who visited a specialist, roughly 18%, or 900,000 people, reported that waiting for care affected their lives. The majority of these people (59%) reported worry, anxiety or stress. About 37% said they experienced pain. The report concluded that:

Perhaps the most significant information regarding access to care was about waiting times. According to the results of the survey, Canadians reported that waiting for services care was clearly a barrier to care… Long waits were clearly not acceptable to Canadians, particularly when they experienced adverse affects such as worry and anxiety or pain while waiting for care.[27]

These new Statistics Canada data suggest strongly that the anecdotal evidence concerning the growing problem of waiting lists cited by the Committee previously corresponds to a real and growing problem confronting the publicly funded health care system in Canada. The Committee is firmly convinced that this problem must be addressed. The status quo is simply unacceptable. Before presenting the Committee’s recommendations, this chapter examines Canadian and international experience in dealing with the problem of waiting times.

6.2 The Reality of the Waiting List Problem

One of the aspects of the waiting list issue that the Committee has found most troubling is the lack of accurate data on the numbers of Canadians who must wait to consult specialists, obtain diagnostic procedures or receive treatment in a hospital, and the absence of accurate data on the length of time they are having to wait and for what services relating to what diseases, conditions and indications. This lack of data poses a serious dilemma for public policy makers. There is strong public perception of a serious waiting list problem, but few or no data by which to measure the extent of that problem, and few standards and protocols to assign needs-based priority to those waiting for treatment.

On the one hand, whether a social problem is real or only perceived, governments naturally want to be seen to be responding to it. On the other hand, with regard to the waiting list problem, if, from the perspective of genuine clinical need (as opposed to patient demand), the health of patients is not being compromised while waiting for diagnosis or treatment, there is little justification for spending a lot of money increasing the supply of the health care resources in question. Determining the true extent of waiting list problems, and their impact on the health and well-being of the people affected, is fundamental to formulating an appropriate public policy response.

What is known is that there are two excellent examples of objectively prioritized waiting lists in Canada – the Cardiac Care Network of Ontario and the Western Canada Waiting List Project. These show that, with the creation of disciplined waiting lists in which patients receive treatment according to their priority of need and within a timeframe set by clinical guidelines, the problem of waiting and the perception that the times are too long can be alleviated and in many cases resolved.

These examples also show that the use of needs-based clinical guidelines for waiting list management makes clear the real need for new resources; i.e., when patients with prioritized need cannot be provided with timely access by waiting list management alone and hence when new resources are needed. Moreover, if new resources are required, whether the resources be money, equipment, health care providers or hospital beds, a needs-based approach to managing waiting lists shows clearly what type, and how much, of the various new resources are required.

From a policy standpoint, therefore, it is essential that Canada begin to develop, as quickly as possible, an accurate database on waiting lists together with needs-based service criteria for people waiting for care, like the criteria described in the next section. Indeed, one of the reasons for the Committee’s emphasis on the need for a dramatic and accelerated improvement in health information systems (see Chapter Ten) is precisely to enable the development of prioritized waiting lists and data on their application.

However, the Committee believes that Canadians should not have to wait until completion of this essential step to address a problem that should have been tackled years ago. Patients and their families must see clear evidence, first, of governments’ determination to act and second, of progress on the waiting list problem. Therefore, in section 6.5 below, the Committee recommends that a “health care guarantee,” that is, a set of needs-based maximum waiting times, be put in place immediately.

6.3 Canadian Experience

As stated above, two Canadian examples provide strong evidence that it is possible to tackle the problem of waiting lists.

6.3.1 Cardiac Care Network of Ontario

The Cardiac Care Network of Ontario (CCN) has long been recognized as a model for managing waiting times, primarily by creating a needs-based priority order of waiting. Established in 1990 to coordinate, facilitate and monitor access to advanced cardiac care as well as to advise the ministry on adult cardiac care issues, CCN has since developed processes to facilitate and monitor patient access, a broad range of guidelines for cardiac services and a comprehensive provincial cardiac information system to support the provision of care, research and continuous improvement in services. Initially focused on cardiac surgery, CCN’s priorities have been broadened to include catheterization, angioplasty and stents, as well as pacemakers, implantable cardiac defibrillators and cardiac rehabilitation.

CCN uses information about patients and their medical condition to calculate an urgency rating score (URS). The URS is a guideline to aid in prioritizing patients’ need for care, i.e., a disciplined waiting list based on relative need for the services concerned. It is also used in monitoring the timely availability of care throughout the province. Regardless of the service needed, the more serious a patient’s condition (as determined by the patient’s URS), the sooner he or she receives care. As a result of CCN’s efforts, waiting times for bypass surgery have dropped substantially since the mid-1990s. Median waiting times for patients whose need is considered to be urgent have consistently remained at about three days, regardless of variation in the total number of patients on the list.[28]

6.3.2 The Western Canada Waiting List Project

The results of the Western Canada Waiting List (WCWL) project, published in March 2001,[29] indicate that it may be possible to generalize the kind of system employed by the CCN and apply it to other major illnesses and procedures. The WCWL project is a collaborative undertaking by a variety of organizations, including regional health authorities, provincial medical associations, provincial ministries of health, and health research centres. It was established to address the perception of significant and long-standing problems of access to health care in Western Canada and to influence the way in which waiting lists are structured, managed, and perceived.

In Canada, patient prioritization is not standardized for any medical service (with the exception of CCN in Ontario). This means that there is currently no provincially or nationally accepted method of measuring or defining waiting times for medical services, nor are there standards and criteria for “acceptable” waits for the vast majority of health services. It is impossible, therefore, to determine whether, from a clinical point of view, patients have waited a reasonable or unreasonable length of time to access care. The absence of standardized criteria and methods to prioritize patients waiting for care means that patients are placed and prioritized on waiting lists based on a range of clinical and non-clinical criteria that vary by individual referring physician across institutions, regional health authorities, and provinces.

Production of physician-scored point-count tools for assigning priority to patients on waiting lists was the overarching goal of the WCWL project. This task was carried out in five significantly different clinical areas: cataract surgery; general surgery procedures; hip and knee replacement; MRI scanning; and children’s mental health. A set of priority criteria and a scoring system were developed through extensive clinical input from panel members. These went through several stages of empirical work assessing their validity and reliability. Clinicians who tested the priority setting tools generally concluded that they had the potential to be useful in clinical settings.

The results from the WCWL project indicate that clinicians, administrators, and the public believe that better management of waiting lists is necessary, possible and appropriate. What is necessary now is to develop appropriate standards and criteria to work out acceptable waiting times for patients at different levels of priority of need. The WCWL was not able to undertake this work, given that it was not part of the mandate associated with its funding.

Nonetheless, the authors of the WCWL final report contended that there is a strong possibility of achieving some semblance of order in establishing treatment priorities and access to elective care. Experience from other jurisdictions has shown that systematic approaches and priority setting techniques can be used to improve the management of waiting times. Research conducted for the WCWL project[30] suggested a number of approaches to make this happen, including the following:

· the process to establish standard definitions for waiting times should be national in scope

· standard definitions should focus on four key waiting periods – waiting for primary care consultation; for initial specialist consultation; for diagnostic tests; and for surgery.

As CCN and the WCWL clearly show, substantial improvement in both the reality and perception of the waiting list problem is possible through adopting an approach based on the clinical needs of patients on waiting lists. Since few or no data are yet available to establish how much the problem can be improved with new waiting list management techniques, there are those who suggest that it would be jumping the gun to act before the real, as opposed to the perceived, extent of the waiting list problem is fully understood. They believe that implementing measures such as the Committee’s proposed health care guarantee (described in section 6.5, below) would be premature. The Committee rejects this point of view. In the Committee’s view, Canadians deserve a health care guarantee now. At the least, such a guarantee would serve as a spur to the creation of the necessary standards, criteria and information systems. Certainly, a health care guarantee would alleviate much of the current anxiety of patients and their families.

6.4 International Experience

While there are no definitive conclusions to be drawn from international experience, there is evidence that establishing formal maximum waiting times for specific procedures can have a positive influence on reducing actual waiting times. Several factors limit the lessons that can be drawn from international examples. In the first place, health care systems are extremely complex and are rooted in the particular history and culture of the country in which they operate. With respect to the specification of maximum waiting times – or what the committee has called the health care guarantee – experience is limited to a small number of countries, is very recent, and recommended maximum waiting times have been subject to revision. Despite these caveats, the Committee believes it is possible to draw on international experience to improve the situation relating to waiting times in Canada.

6.4.1 Sweden

In its previous reports,[31] the Committee referred to the Swedish experience in the early 1990s with a form of health care guarantee. This guarantee established a maximum waiting time for diagnostic tests (90 days), certain types of elective surgery (90 days), and consultations with primary care doctors (8 days) and specialists (90 days). Sweden also put in place a system where waiting times for major procedures are posted daily on a website. People can check the website and may choose to travel to the hospital and next available physician or surgeon with the shortest waiting time.

In 1997, a revised health care guarantee came into force – the so-called “0/7/90” guarantee. It stipulates that patients must receive care from a nurse practitioner in a primary health care centre the same day and that an appointment with a physician must be offered within seven days. Finally, should a patient need referral to a specialist, an appointment must be offered with three months. When appointments cannot be offered within these time limits, the patient is entitled to see a health care provider in another county at no additional cost. When treatment is required, the health care guarantee states that it must be provided without delay but no maximum waiting times are specified.

Overall, the care guarantee in Sweden appears to do more to improve patients’ freedom of choice than constitute a mechanism to regulate waiting times. Under the Stockholm County Council, for example, patients can choose among many providers and institutions but in practice relatively few patients exercise this freedom of choice, and not all even know of its availability. For the most part, Swedes place high value on proximity to care; it seems that the vast majority of patients prefer to receive care in their own county rather than travel elsewhere, even if it means waiting longer.

6.4.2 Denmark [32]

In Denmark, the Ministry of Health and the Association of County Councils, who are jointly responsible for funding and delivering health care services, agreed in 1993 on a target, to be reached by the end of 1995, of a three-month maximum waiting time for all non-acute surgical treatment. The guarantee was accompanied by financial incentives for the counties to meet this target. But, in spite of increased activity and generally decreasing waiting times, it proved impossible for the counties to fulfill the guarantee and it was subsequently revoked in 1997.

Until very recently, a “political” approach was used to encourage reduction in waiting times by providing associated increases in health care funding. Differentiated targets were developed based on assessments of the impact of waiting times on different patient groups. As of March 2000, targets had been set for life-threatening heart conditions (two, three or five weeks depending on the specific diagnosis and treatment available), breast cancer, lung cancer, uterine cancer and intestinal cancer (two weeks from referral to preliminary investigation, two weeks from patient acceptance of surgery to surgical intervention, and two weeks from surgery to the start of post-surgical treatment).

A central government report published in 2000 indicated that the overall percentage of patients waiting more than three months fell from 32% in 1995 to 28% in 1997 and 21% in 1998. In 1998, 71% of all patients were treated immediately, 14% were treated within a month and 8% had to wait more than three months. The average waiting time for surgical procedures declined from 93 days in 1995 to 87 days in 1997.

Since 1997, the Ministry of Health has posted on the Internet expected waiting times at different hospitals for 24 types of diagnoses. This initiative was intended to broaden patients’ ability to choose among hospitals throughout the country. In June 2001, the Social Democratic government announced an investment of 500 million kroner (about $100 million CAD) to reduce further waiting times for cancer treatment, and followed that with legislation to expand guaranteed minimum waiting times to patients with all forms of cancer.

Nonetheless, in the Danish elections in November 2001, concern over growing waiting times at public hospitals was one of the factors that contributed to the defeat of the Social Democrats at the hands of the right-wing Liberal Party. The new government has since allocated a further 1.5 billion kroner (about $290 million CAD) to be distributed throughout the publicly funded hospital system solely for the purpose of reducing waiting lists.

The government has also declared that, as of July 1, 2002, patients forced by the public system to wait longer than two months for treatment of any kind have the right to choose a private hospital or a hospital in another country without paying additional fees. As in Sweden, the Danes see this as an extension of patient choice, rather than a true health care guarantee. Mr. John Erik Petersen, Head of Department, Ministry of Health and the Interior, Government of Denmark, who testified before the Committee via videoconference, explained it as follows:

We introduced a free choice of hospitals among the public hospitals 10 years ago. However, we have not yet had free choice for the few Danish private hospitals, nor hospitals abroad.

As of July 1, we are introducing an extended free choice of hospital to include private hospitals and hospitals in other countries in cases where the patient cannot be treated in the public hospitals in his own country or neighbouring counties within two months. That is where the care guarantee comes in. It is not really a guarantee, but it is an extended free choice after two months of waiting time.

We also have a care guarantee, but that is only in a few areas of life-threatening cancer and heart diseases. That has been in effect for a year now. That is a guarantee in the sense that the councils, the hospitals, are obliged to find care opportunities for the patient within the time limits, which are shorter than two months. They are obliged to find care for the patient, which is not the case with the extended free choice. You get a free choice to private hospitals or abroad if you wait more than two months, but there is no guarantee that there is a private hospital that will take care of you.[33]

Interestingly, as in Sweden, the Danes do not expect many people to take advantage of the new guarantees. Mr. Petersen further explained:

With regard to the two-month time limit, we do not foresee that all waiting times over two months will disappear in Denmark. We know already from the existing free choice among public hospitals that patients often choose to wait longer to be treated at their local hospitals rather than travelling to Europe and other parts of the country, even though Denmark is a rather small country. Therefore, we do not foresee that that many people will take advantage of this offer.[34]

The Danish witnesses suggested to the Committee that the determination of two months as the period after which Danes could exercise free choice of hospital had more to do with political dynamics than with evidence-based clinical decision-making. This contrasts with the maximum waiting times for cancer and heart diseases that were established on the basis of clinical criteria. Nonetheless, the two-month guarantee represented, in the words of Dr. Steen Friberg Nielsen, CEO, Top Management Academy, Government of Denmark, “a political decision regarding the level of service”[35] that the government was committed to offer its citizens.

6.5 Committee Recommendations

The Committee believes that there are two sets of factors that contribute to the perceived growing problem of waiting times in Canada.

One is the apparent shortage of personnel and diagnostic equipment. In the Committee’s view, these shortages have been severely exacerbated by decisions taken by governments at all levels over the past decade – decisions made as governments sought to reduce health care costs (and other public expenditures) dramatically. This has led to a situation in which some components of the health care system are increasingly unable to respond to the demands that are placed upon them. In a system that strives to treat everyone equally, this imbalance between the supply of services and the demand for them has resulted in growing waiting times, and, as the Statistics Canada data show, growing public concern over their length.

But the lack of disciplined, prioritized waiting lists based on standards, criteria and clinical, need-based data on the condition of patients substantially exacerbates this problem. The absence of data certainly makes it harder to determine what to do about it. In fact, in Canada’s health care system it is impossible to distinguish effectively between genuine, clinically based patient needs on the one hand, and, on the other, patient- and physician-generated demand for immediate service (when waiting would have no impact on the person’s health).

Not all waiting lists are the result of shortages. As already noted, evidence suggests it is possible to reduce these waiting times by tackling them head-on, as CCN has done in Ontario. We strongly suggest that a major factor contributing to growing waiting times has been the slowness of the “players” in the system – hospitals and their specialist physicians and surgeons in particular – to apply systematic management to waiting lists for all major procedures, diagnostic tests and consultations. In the same spirit in which it supports all efforts to improve the efficiency of the health care system, the Committee welcomes attempts to find better ways to manage waiting lists, such as the WCWL project, so that patients in the greatest need are tended to first and that, wherever possible, waiting times for everybody are kept to a minimum. The Committee believes, however, that it is highly unlikely that better management of waiting lists will, on its own, suffice to resolve the waiting list problem. Undoubtedly some of it is attributable to shortages.

The question then arises why the situation has been allowed to deteriorate to the point where almost one in five Canadians reports difficulty in accessing needed health services in a timely manner. In the Committee’s view, one reason is that cost-cutting – or, more precisely, the failure to continue to increase funding at the same rate as growth in health care costs – has been an option attractive to government. This option has proven possible to implement relatively easily, the reason being that, to date, governments have not had to bear the burden of the consequences that result from their cost-cutting decisions. Instead, these costs have been borne largely by patients who face longer waiting times for health services.

In keeping with its philosophy that the best way to reform a complex system such as health care delivery is to introduce appropriate incentives for all the players involved, the Committee is firmly convinced that governments must be made to bear the responsibility for their decisions. Thus, the Committee believes that the blame for the waiting list problem should be placed where it belongs – on the shoulders of governments for not funding the system adequately, and jointly on governments and providers of health services, the providers for not developing clinical, needs-based waiting list management systems and governments for not demanding and funding such systems to ensure the rationality of waiting lists, including those that are attributable to underfunding. The Committee believes that governments must pay for the remedy, namely patient treatment in another jurisdiction, while waiting list management systems are being developed and put in place.

Therefore, the Committee recommends that:

For each type of major procedure or treatment, a maximum needs-based waiting time be established and made public.

When this maximum time is reached, the insurer (government) pay for the patient to seek the procedure or treatment immediately in another jurisdiction, including, if necessary, another country (e.g., the United States). This is called the Health Care Guarantee.

The Committee realizes that governments may well take the position that if a patient does not receive timely access for a medically necessary service, and hence becomes entitled to service elsewhere under the health care guarantee, the responsibility (or blame) may rest with the hospital or its physicians for not being sufficiently efficient in the use of existing resources and not managing waiting lists well enough. Under these circumstances, the government may well seek to recover the costs incurred through the care guarantee from the hospital and/or the physician(s) concerned. That is, governments may well place the responsibility for meeting the maximum waiting times on the shoulders of those responsible for actually managing the system. This is reasonable if it can be shown that underfunding is not the sole or even the primary cause of a patient waiting too long for a service.

But this is an issue to be resolved between governments and the institutions and the physicians that they fund. Patients should not be affected. Their sole concern should be to get needed treatments in a timely fashion and to have them paid for publicly. Therefore, in the first instance, governments as the patient’s insurer should have the responsibility of meeting the health care guarantee.

The point at which this health care guarantee would apply for each procedure would be based on an assessment of when a patient’s health or quality of life is at risk of deteriorating significantly as a result of further waiting. Waiting times would be established by scientific bodies using clinical, evidence-based criteria. In order to accomplish this, the Committee recommends that:

The process to establish standard definitions for waiting times be national in scope.

An independent body be created to consider the relevant scientific and clinical evidence.

Standard definitions focus on four key waiting periods – waiting time for primary health care consultation; waiting time for initial specialist consultation; waiting time for diagnostic tests; waiting time for surgery.

The Committee recognizes that it is necessary to deal simultaneously with both sets of factors noted above. First, the techniques for effectively managing waiting lists based on sound clinical methods must be brought to bear on the management of waiting times in an efficient and equitable manner. Second, for sufficient resources to be made available so that this can happen, the political will must be there, and government must therefore have an incentive to act appropriately.

Since government has the responsibility for funding an adequate supply of essential services provided by hospitals and doctors, it has an obligation to help them meet reasonable standards of patient service. This is the essence of a patient-oriented system and of the health care “contract” between Canadians and their governments.

A maximum waiting time guarantee gives concrete form to this obligation. Were it to be implemented, such a health care guarantee would mean that government would have to shoulder the responsibility of needed care not being delivered in a timely fashion, provided, of course, the funded hospitals and physicians discharge their parts of the bargain by developing and using clinical criteria to prioritize needs-based waiting lists and by employing their resources in an optimally cost-effective manner. Allowing waiting times to increase would no longer represent a cost-free option for governments, nor for hospitals and doctors, when under-funding is not the primary reason for prolonged waiting, since they would be required to pay to have patients obtain treatment in other jurisdictions.

Other Canadian reports have made similar recommendations for dealing with waiting times. Based on a review of the Swedish experience, the report of the Premier’s Advisory Council on Health in Alberta (the Mazankowski report) recommended the establishment of a care guarantee of 90 days for selected services. According to the Advisory Council, this guarantee would provide an incentive for health care providers and regional health authorities to take appropriate action to manage and shorten waiting lists. Their report stressed that patients may need to give up their preference for a specific physician or hospital if they want to be treated within the 90-day period. In addition, if regional health authorities are unable to provide service within this period, they would have to consider other options, such as getting the service from another region. Services could be provided by either a public or a private provider.

More recently, the Canadian Medical Association endorsed the Committee’s health care guarantee proposal and included it in its document A Prescription for Sustainability issued on June 6, 2002. The CMA proposed that “guidelines and standards around quality and waiting times”[36] be established for a clearly defined basket of core services, and argued that “if the publicly funded health care system fails to meet the specified agreed-upon standards for timely access to core services, then patients must have other options to allow them to obtain this required care through other means.”[37] The Committee is pleased that the CMA has adopted its proposal.

6.6 The Potential Consequences of Not Implementing a Health Care Guarantee

There are two pieces of the puzzle that must be in place in order to make significant progress in reducing waiting times, in renewing the health care contract between Canadians and their governments, and in restoring the confidence of the Canadian public in their health care system. First, governments at all levels must back their words with deeds by committing to a health care guarantee that establishes the right of Canadians to receive the care that they need in a timely manner; and second, this commitment must be applied using the best possible system for managing waiting times.

As the delivery of health care in Canada is a provincial responsibility, the health care guarantee must be adopted by the provinces/territories if it is to be implemented. The Committee believes that the principal way in which the federal government can contribute to the implementation of the health care guarantee is to ensure that there is agreement between the federal and provincial governments on the ways to make the financing of publicly insured health services stable and predictable. The Committee believes strongly that federal funding must be maintained at an adequate and predictable level and discusses in detail issues related to financing in Chapters Fourteen and Fifteen of this report.

Nonetheless, it is important to consider the consequences that would follow from a refusal on the part of the provinces to adopt the health care guarantee. In the preceding chapter, the Committee made the case that governments can no longer have it both ways – they cannot fail to provide timely access to medically necessary care in the publicly funded health care system and, at the same time, prevent Canadians from acquiring those services through private means. Thus, one consequence of not implementing the health care guarantee would be to render it highly likely that the current legal prohibition on the creation of a parallel private health care insurance and delivery system would be challenged successfully in the courts.

A second consequence would be that it would fall to the federal government to consider enacting its own legislation to enforce the health care guarantee. The federal government could, for example, consider setting national maximum waiting times on its own for various procedures, at the expiration of which the health care guarantee would come into effect. When a patient exceeded the maximum waiting time, the federal government could then pay the cost of treating the patient in another jurisdiction, including in the United States, and deduct the cost from the cash it transferred under the CHST to the province in which the patient resides.

Thus the penalty for violating the health care guarantee would be similar to the penalty that provinces now incur for violating the Canada Health Act. Currently, in cases where the federal government finds that a province has applied user charges or engaged in extra billing that are prohibited under the Act, it can withhold from the funds it would otherwise have transferred to the province an amount equivalent to what the provinces have received.

Obviously, the adoption of such legislation by the federal government would be highly contentious. However, it would ensure that a national health care guarantee of maximum waiting times came into effect – an outcome that the Committee insists must happen and that the Committee believes would also be strongly supported by the Canadian public.

6.7 Concluding Thoughts on the Health Care Guarantee

The Committee believes that it should be possible for the federal and provincial/territorial governments to reach agreement on a national set of maximum waiting times for various procedures. It passionately hopes that it will not be necessary for unilateral action to be taken by the federal government or for a parallel system of private delivery, financed by private insurance, to emerge as a result of judicial decisions. The Committee has pointed to these potential consequences of not implementing the health care guarantee only because it categorically rejects the status quo: Canadians in need of medically necessary services must be given timely access to them.

It is also important to note that the Committee’s recommendation that the health care guarantee be implemented overlaps with a number of other important recommendations contained in this report. For example, health information systems and the means of evaluating performance and outcomes such as the Committee has recommended in Chapter Ten must be put in place in order to monitor waiting times across the country, so that patients receive timely treatment and the standards imposed by the health care guarantee can be monitored. In addition, the reform of primary health care delivery along the lines the Committee has proposed in Chapter Four is essential to the efficient and timely provision of health care in the twenty first century.

[1] Volume Four, p. 38.

[2] Colleen Flood and Tracy Epps, Can a Patients’ Bill of Rights Address Concerns About Waiting Lists? Draft Working Paper, Health Law Group, Faculty of Law, University of Toronto, October 9, 2001, p. 7.

[3] R.S. 1985, c. C-6.

[4] The Canadian Bar Association Task Force on Health Care, What’s Law Got To Do With It? Health Care Reform in Canada, (Ottawa: The Canadian Bar Association, August 1994) p. 24.

[5] Volume Four, pp. 38-39.

[6] Colleen M. Flood, Tom Archibald, “The illegality of private health care in Canada”, Canadian Medical Association Journal, March 20, 2001, 164 (6), p. 825-830.

[7] Volume Four, p. 40.

[8] Ibid.

[9] What’s Law Got To Do With It? Health Care Reform in Canada, (1994) p. 26.

[10] Ibid., p. 94.

[11] In Eldridge v. British Columbia (Attorney General) [1997] 3 SCR 624, the Supreme Court of Canada held that the provincial government’s failure to fund sign-language interpreters in hospitals under its public health insurance system discriminated against deaf patients on the basis of physical disability and violated their equality rights under section 15 of the Charter.

[12] Stanley H. Hartt Q.C., Patrick J. Monahan, The Charter and Health Care: Guaranteeing Timely Access to Health Care for Canadians, C.D. Howe Institute, Commentary, No. 164, May 2002.

[13] According to Hartt and Monahan (p. 9), a claim under section 7 of the Charter has three aspects:

1) An action of a legislature or government that deprives a person of one of more of “life, liberty and security of the person”; 2) The deprivation must be contrary to the principles of fundamental justice; 3) The violation cannot be justified under section 1 of the Charter, which requires that a violation of a protected right must be a “reasonable limit” that can be demonstrably justified in a free and democratic society.

[14] Ibid., p. 17.

[15] Ibid., p. 15.

[16] Ibid., p. 20-21.

[17] Ibid., p. 5.

[18] Ibid., p. 3.

[19] Ibid., p. 4.

[20] Ibid.

[21] [2000] J. Q. No. 470 (QL) (C.S.Q. Piche J.)

[22] Ibid., para. 243.

[23] Ibid., para. 261-263.

[24] Stein v. Québec (Régie de l’Assurance-maladie), [1999] QJ No. 2724.

[25] Access to Health Care Services in Canada, 2001, Claudia Sanmartin, Christian Houle, Jean-Marie Berthelot, and Kathleen White, Statistics Canada, June 2002.

[26] Statistics Canada, The Daily, July 15, 2002.

[27] Access to Health Care, p. 21.

[28] See the submission of the Cardiac Care Network to the Commission on the Future of Health Care in Canada, October 29, 2001.

[29] From Chaos to Order: Making Sense of Waiting Lists in Canada, Final Report, the Western Canada Waiting List Project, March 2001.

[30] Sanmartin, Claudia, “Toward Standard Definitions of Waiting Times for Health Care Services,” p.361.

[31] See, for example, Vol. 5, p. 56 and Vol. 3, p. 33.

[32] For a detailed description of the Danish health care system, see Health Care Systems in Transition: Denmark, Signild Vallgarda Allan Krasnik and Karsten Vrangbaek, the European Observatory on Health Care Systems, 2001.

[33] Committee Proceedings, June 17, 2002. 64:4.

[34] Ibid., 64:

[35] Ibid., 64:

[36] The Canadian Medical Association, A Prescription for Sustainability, p. 16

[37] Ibid., pp. 16-17.