Prime Minister Carney needs a Primer on the Canada Health Act

Healthcare is not a right in Canada, but maybe it should be ...

As Canada’s new Prime Minister Mark Carney is formally sworn-in, it’s worth reflecting on a speech he gave a few days ago - his first as leader of the federal Liberal Party. In a blistering attack on our neighbours south of the border, Carney declared

"In America, healthcare is a big business. In Canada, it’s a right”.

A bold statement that should make every Canadian proud - except, it’s not true !

Let’s be clear, this isn’t a defence of the American healthcare system - far from it. A recent study by the Commonwealth Fund ranked the United States worst out of 10 peer countries for healthcare performance (Canada ranked 7th). Even if one disputes the Commonwealth Fund’s rankings, it’s hard to ignore OECD data showing that the United States spends almost twice as much as Canada on healthcare per person ($12,742 vs 6,845 US PPP in 2022). While this spending translates to more diagnostic technology (MRI and CT scanners) and shorter wait times for specialists and elective (ie. scheduled) medical treatment than in Canada - more Americans report cost-related barriers to care. The US also reports 71 percent higher treatable mortality in comparison to Canada (ie. deaths that could have been avoided through timely healthcare intervention).

Without getting into the nitty gritty of a full comparison of performance, that’s clearly a record no one should emulate.

More to the point of Carney’s claim, even after Obamacare, the US has yet to achieve universal health insurance coverage for its population. By contrast, every Canadian is automatically covered by their province’s health insurance plan.

However, that does not mean that healthcare is “a right” as the newly-minted Prime Minister would have us believe. In fact, the Constitution Act (1867) does not even mention the word healthcare, and the Canadian Charter of Rights and Freedom “does not confer a freestanding constitutional right to health care”.

And yet, there seems to be a widely held misperception - shared by our new Prime Minister - that Canadians have a right to health care.

Why ?

Much of this misunderstanding likely stems from the Canada Health Act [CHA] - so let’s clear some of that up.

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The CHA is essentially a piece of financial legislation enacted in 1984/85 (no Orwell jokes, please - they are doubleplusungood) that dictates the terms and conditions under which provinces receive transfers from the federal government.

Basically, in order to receive money from Ottawa via the Canada Health Transfer (CHT), the insurance plan of a province must:

1. Be publicly administered

2. Provide comprehensive coverage for services provided by hospitals, medical practitioners or dentists

3. Ensure universal coverage for all residents (with a maximum 3 month waiting period)

4. Provide portable coverage to residents temporarily absent/travelling

5. Ensure reasonable access to services on uniform terms and conditions

In addition, sections 18-21 of the CHA prohibit user-fees and extra-billing for medically necessary services under the provincial insurance plan.

The federal Health Minister may, at his/her discretion, withhold a portion - or the entirety - of federal transfers to any province found in violation of these five principles. Meanwhile, reported violations of sections 18-21 trigger mandatory dollar-for-dollar reductions in CHT payments.

The combination of these policies establish and shape the characteristics of our tax-funded universal healthcare system.

But this is achieved via the federal governments spending power - not a constitutional right.

Currently, federal transfers account for a little over 20 percent of provincial healthcare spending (varying by province) - neither chump change, nor a king’s ransom. Instead of adhering to the CHA, provinces could theoretically forgo all CHT transfer payments from Ottawa and use the remaining 80 percent of funds they already provide to fund a different kind of public healthcare system - or even opt not to provide public healthcare insurance at all.

Moreover, the CHA (and associated CHT payments) primarily concerns healthcare insurance - not necessarily health per se.

It could be argued that the closest we come to a right to health might be Section 7 of the Charter of Rights and Freedoms which grants the right to Life, Liberty and Security of a person. However, this section has actually been used to challenge government legislation that supposedly protects our universal public healthcare system.

Notably, in 2005, the Supreme Court of Canada ruled that provincial restrictions on private healthcare insurance violated the right to life, liberty and security of the person (Section 7 of the Quebec Charter of Human Rights and Freedoms). A similar case was launched in British Columbia based on the Canadian Charter. But while the the courts found that provincial laws restricting private alternatives to the public universal system harm patients, such harm was in accordance with “the fundamentals of justice”.

Basically, if anything, rights granted via the Charter of Human Rights and Freedoms are arguably infringed - justly or otherwise - by government legislation intended to preserve the public healthcare system.

To be fair, the preamble of the CHA does indeed state that "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”. And, the combination of federal and provincial legislation certainly ensures that Canadians have universal health insurance coverage.

However, Canadians do not have an explicit right to healthcare. In fact, if we did, governments would likely be found in violation of that right due to the long wait times that plague our healthcare system. Last year, patients waited an estimated 30 weeks for medically necessary elective (ie. scheduled) care. In fact, government records show that at least 15,000 patients died while waiting for care in 2023/24.

While Prime Minister Carney brushes up on what the CHA actually says, he would do well to heed the now-iconic judgement delivered by Justice Beverley McLachlin in the 2005 Chaoulli decision:

“access to a waiting list is not access to health care”.

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