Fundamental issues
Division of Powers.
Impacts how health system is structured. Recent decision in QB CA summarizes federal and provincial responsibilities regarding health care. At issue is whether assisted human reproduction should be federally or provincially regulated. The federal government has traditionally placed this matter under the criminal law head of power. If defeated, they may try to classify it under POGG power. However, that would be a difficult argument as POGG is not used very often, and it would be difficult to argue that this is a matter of national concern.
Federal heads of power: criminal law. POGG, spending power (i.e. collection and distribution of taxes), quarantine and border control, patent, defence, penitentiaries, immigration. As we can see, the federal role is indirect, supervisory.
Provincial heads of power: hospitals (92.7); medical profession and the practice of medicine (92.13 – property and civil rights; 92.16 – matters of a local and private nature); education (s93) – includes professional regulation.
At issue here, reproduction is held to be under provincial regulation. Human reproduction is not an ‘evil’, hence cannot be regulated by federal criminal law power. On the other hand, true prohibitions, such as stem cell research can rightly be under the federal criminal head of power.
Canada Health Act. Central piece of federal legislation for health care. Canada Health Act does not prohibit anything explicitly, but rather relies on conditional funding. If programs meet criteria then they are funded. If programs do not meet the criteria then they are not funded. The act lists five program criteria and conditions that provinces must follow in order to receieve their federal transfer payments: public administration, comprehensiveness, universality, portability, and accessibility. There are two additional conditions which must be met: first, feds are entitled to specific information ; and second, the province must “give recognition” to the federal government in all health documents.
Public Administration – Insurance scheme has to be not for profit. Has to be administered by a public body. Public authority must be responsible to provincial government. Note that this has absolutely nothing to do with public or private facilities, it refers to the insurance plan.
Comprehensiveness – the insurance plan must cover all insured health services provided by hospitals or medical practitioners. Section 2 specifies what it is included: physician services, hospital services and surgical-dental services. What ties all these inclusions together is that the services must be medically necessary.
Universality – must be entitled 100% of insured persons to services. All insured people must be covered under uniform terms and conditions. This means health care premiums do not vary based on age.
Portability – mobility from province to province. Coverage provided if you move from province to province.
Accessibility – reasonable access for all insured people. E.g. rural people should have the same services available as urban people. Also insures that practicioners should be reasonably paid, because if they were not it is unlikely services would be available.
The idea is that if these five criteria are not met, the province will not get the full federal transfer each year. However, in practice the power to completely withhold funding has never been exercised by the Feds. Right now in BC there is an action against the provincial government for a failure to comply properly with Canada in Health Act. There are questions about the usefulness of the Canada Health Act.
Medically Necessary – It is a central tenant of Canada Health Act is that it only insures services that are deemed medically necessary. How do we decide what is medically necessary? This issue is covered in the Cameron case. The court rejects a bunch of criteria for “medically necessary”, then defines its own. The court rejects the definition of medically necessary as medically useful. The threshold for “useful” is relatively low. However, for policy reasons it is not financially feasible to fund all useful procedures. Court favours judicial deference here as it is not in the best position to determine what is medically necessary. On the other hand there are a few considerations the court makes: the availability of other options; priority and priority setting… taking into many factors such as there is a ranking system developed.
Provincially Legislative Framework – the regulation of health professions, facilities; role and responsibilities in health system e.g. payment, accountability.