Presentation at the National Bar Association's 92nd Annual Convention at the Health Law Summit on "Canadian vs US Health System: Lessons for Reformers in Protecting the Poor and Promoting Innovation" on August 1, 2017, at the Fairmont York Royal Hotel.

1. Canadian vs US Health System: Lessons for Reformers in Protecting the
Poor and Promoting Innovation
"Better never means better for
everyone...”
National Bar Association
92nd Annual Convention, August 1, 2017
Omar Ha-Redeye
AAS, BHA (Hons.), PGCert, JD, LLM
CNMT, RT(N)(ARRT)

2. Historic Backdrop Between Canada and U.S.
• American Revolution (1765-1783) predicated on anti-authoritarian
sentiments
• Culturally led to general distrust of big government
• Significant devolution of authority to the state level
• “Life, Liberty and the Pursuit of Happiness”
• Canada remained a colony until 1867
• Repatriation of constitution only occurred in 1982
• Monarch remains official head of state
• Larger sentiment of “collectivist” ideals
• “Peace, Order and Good Government”
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3. Canadian Jurisdiction over Health
• 1867 Constitution did not contemplate universal health care
• Limited federal jurisdiction: criminal law, patents, quarantine laws and federal
spending power (e.g. approval of drugs and medical devices)
• Provincial jurisdiction is broader: hospitals, contract law, tort law, property
law, and regulation of health professions
• Schneider v. The Queen [1982] 2 S.C.R. 112 at 142:
• … ‘health’ is not a matter which is subject to specific constitutional
assignment but instead is an amorphous topic which can be addressed by
valid federal or provincial legislation, depending on the circumstances of each
case on the nature or scope of the health problem in question.
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4. Canada Health Act, 1985
• Known as Canada’s “Medicare”, it addresses federal transfers of
money to the provinces for “medically necessary” physician, in-
hospital services and some limited other services
• 5 Principles under s. 7
1. public administration;
2. comprehensiveness;
3. universality;
4. portability; and
5. accessibility.
• Federal government uses funding to ensure provincial
compliance
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5. Ontario
• The provincial government pays for a variety of health services for residents:
- All medically necessary physician services, hospital services, and diagnostic services
- Ambulance services (both land and air ambulance)
- Long-term care/nursing home services, and home care services
- Drug costs for seniors, social assistance recipients, and people using high-cost drugs
- Community mental health and addiction services, and some other select community services (e.g.
midwives, dieticians, psychotherapy, physiotherapy, supportive housing, and some adult-day
services, like meals on wheels)
- Some dental services and preventive eye services for children
• When physician, in-hospital and diagnostic services are paid by government, they are without cost to
patients and cannot be purchased in the private market.
• Other government funded services may involve co-payments and they may be purchased in the private
market (out of pocket or through private insurance). Some services are not covered (e.g. chiropractors,
naturopaths, and experimental services).
• The system is administered by the province either through the ministry or various government
agencies (e.g. local health integration networks). Services are delivered mainly through private sector
organizations (e.g. not-for-profit hospitals, other charities, or for-profit businesses).
• Ontario has the jurisdiction to regulate the delivery of all health care, whether publicly funded or not
(e.g. the dispensing and pricing of drugs is regulated whether or not the cost is paid by government).
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6. Comparisons of American and Canadian
Systems
• July 2017 study by The Commonwealth Fund
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7. Comparisons of Canada to US (and others)
• Generally there is an assumption that Canadian system provides
better health outcomes than American
• Exceptions may include wait times, diagnostic services, ER, electronic health
records
• Americans spend far more on health care
• More per capita
• More for the same services
• Both systems generally perform poorer than other industrialized
nations
• In particular, Western Europe is often used for comparator purposes

8. The Constitutional Backdrop
• 2005 SCC decision in Chaoulli v Quebec (AG) prioritized
choice in an individual rights paradigm
• Confirmed legality of purchasing, providing private medical
and hospital services and insurance
• Rebuffed some of arguments against privatization
• “that the prohibition [of private services] is not necessary to
guarantee the integrity of the public medicare plan” (para 74)
• Impact may not increase expenditures or adversely impact patient
care
• At the same time, Federal funding has decreased,
provinces are delisting and under strain

9. Case for Greater Privatization in Canada
• Current issues in the system:
• Rapidly aging population also requires new and costly medical innovations
• Government managing growth by limiting spending instead of increasing efficiency
• Lack of uniformity across Canada
• Few incentives for innovation and capital investment
Ontario Chamber of Commerce, “ Transformation through Value and Innovation: Revitalizing Health Care in Ontario,”http://www.occ.ca/wp-
content/uploads/2013/05/HTI_March15.pdf
• Health reform could be achieved through:
• Retaining constitutional jurisdiction of health under provinces
• Revise Canada Health Act to enhance freedom and choice
• Promote socio-economic environment of individual freedom and choice
J. Edwin Coffey, “The case for increased privatization of Canadian health care,” McGill Journal of Medicine, p. 75-76

10. Current Legal Battlegrounds Over
Privatization
• McCreith-Holmes, who travelled to Buffalo, NY for an MRI rather than
waiting for 4 months in Ontario
• Darcy Allen and Richard Cross from Alberta, both of whom travelled
to the U.S. for back surgery, and are asking for reimbursement from
the public health insurance
• Dr. Brian Day’s constitutional challenge in B.C., claiming thousands of
Canadians suffer “irreversible harm” due to prohibition of private
insurance

11. Provincial Compromises
• Saskatchewan enacted a licensing regime for private MRI clinics
• required to provide a 2-for-1 deal, a free MRI to patient on wait list for every
private MRI sold
• But Alberta has reduced private MRIs following significant increase in wait
times
• Quebec legislation allowing private clinics to bill for accessory fees
(i.e. bandages)
• Ontario currently in a significant dispute with physicians over
compensation

12. Greatest Source of Waste might be Private
Sector
• Canadian system generally excludes prescription drugs, mental health
supports, dental care, optometry, physiotherapy and home and
community care
• Private, for-profit sector might be the greatest source of inefficiencies
• Administrative costs higher in North American than Europe
• lack of a national prescription drug plan costs $7.3 billion/year ($100 billion
over the next decade)
• Conclusion: “the scope of public health care coverage in Canada is too
small, not too large.”
Alex Hemmingway, “Private, for-profit sector biggest source of waste in Canadian health care,” Vancouver Sun,
November 25, 2016 http://vancouversun.com/opinion/opinion-private-sector-biggest-source-of-waste-in-canadian-
health-care

13. Comparisons with Even Better Systems
• Broader use of privatization in Europe, though extent as a percentage of use is less
• Public system has broader coverage, better integration of services
• Privatization is encouraged, but highly regulated
• Still requires significant involvement of government
Macdonald Laurier, “Why the European Healthcare System Works Better than Canada’s,” Troy Media, May 4, 2013, http://www.troymedia.com/2013/05/04/why-the-
european-healthcare-system-works-better-than-canadas/
• European countries spending on social programs have better health outcomes than
countries slashing these budgets
• access to health care accounts for only 25% of health outcomes
• remainder largely determined by income, employment, education, housing, food security and
other social and economic factors
• “We can't talk about the success of national health care systems, in other words, without
first considering the social programs that also influence health.”
Ryan Meili, “Let's Keep It Real When Making Comparisons To Canadian Health Care,” Huffington Post, July 23, 2014, http://www.huffingtonpost.ca/ryan-
meili/canadian-medicare_b_5614162.html

14. Social Determinants
• Health should be seen as part of a broader social condition
• Health does not exist in a vacuum
• Poverty is one of the greatest social determinants of health
• Addressing the root causes of health issues will have a far greater
impact on health expenditures than privatization or health reform
• Requires greater involvement of the government and stronger commitment
by public

15. Health Care Comes Down to Priorities
• "Better never means better for everyone...It always means worse, for
some." - The Handmaid's Tale, Chapter 12
• A sustainable health care system will require some sacrifices, and a
prioritization of what is important in society
• Prioritizing individual choice may come at the expense of human rights or
life/death of others
• Universality will require universal commitment from all aspects of society,
including health care providers

16. Contact
• Personal website: http://omarha-redeye.com
• Email: omar@fleetstreetlaw.com
• Twitter: @omarharedeye
• LinkedIn: https://www.linkedin.com/in/torontolawyer/