June 13, 2005

Canadian Supreme Court: "Access to a Waiting List is NOT Access to Health Care"

A Wall Street Journal editorial notes a landmark legal decision occurred last week in Canada:

...[T]he Supreme Court of Canada...issued an opinion last Thursday saying, in effect, that Canada's vaunted public health-care system produces intolerable inequality.

Call it the hip that changed health-care history. When George Zeliotis of Quebec was told in 1997 that he would have to wait a year for a replacement for his painful, arthritic hip, he did what every Canadian who's been put on a waiting list does: He got mad. He got even madder when he learned it was against the law to pay for a replacement privately. But instead of heading south to a hospital in Boston or Cleveland, as many Canadians already do, he teamed up to file a lawsuit with Jacques Chaoulli, a Montreal doctor...

The court's decision strikes down a Quebec law banning private medical insurance and is bound to upend similar laws in other provinces. Canada is the only nation other than Cuba and North Korea that bans private health insurance...

"Access to a waiting list is not access to health care," wrote Chief Justice Beverly McLachlin for the 4-3 Court last week. Canadians wait an average of 17.9 weeks for surgery and other therapeutic treatments, according the Vancouver-based Fraser Institute. The waits would be even longer if Canadians didn't have access to the U.S. as a medical-care safety valve. Or, in the case of fortunate elites such as Prime Minister Paul Martin, if they didn't have access to a small private market in some non-core medical services. Mr. Martin's use of a private clinic for his annual checkup set off a political firestorm last year.

The ruling stops short of declaring the national health-care system unconstitutional; only three of the seven judges wanted to go all the way.
But it does say in effect: Deliver better care or permit the development of a private system. "The prohibition on obtaining private health insurance might be constitutional in circumstances where health-care services are reasonable as to both quality and timeliness," the ruling reads, but it "is not constitutional where the public system fails to deliver reasonable services."...

The Canadian ruling ought to be an eye-opener for the U.S., where "single-payer," government-run health care is still a holy grail on the political left and even for some in business (such as the automakers)...

The larger lesson here is that health care isn't immune from the laws of economics. Politicians can't wave a wand and provide equal coverage for all merely by declaring medical care to be a "right," in the word that is currently popular on the American left.

There are only two ways to allocate any good or service: through prices, as is done in a market economy, or lines dictated by government, as in Canada's system. The socialist claim is that a single-payer system is more equal than one based on prices, but last week's court decision reveals that as an illusion. Or, to put it another way, Canadian health care is equal only in its shared scarcity.

...If the Canadian ruling can open American eyes to the limitations of government-run health care, Mr. Zeliotis's hip just might end up saving the U.S. system too...

Another Wall Street Journal news article (available for a fee) notes:

A ruling by Canada's top court is expected to open the door to broader private health-care services in the country, which often grapples with providing citizens with timely access to publicly funded health care.

Canada's Supreme Court on Thursday ruled that the province of Quebec's prohibition on private insurance for services covered by the public system violates the province's bill of rights. Many policy experts believe the ruling will eventually spawn legal challenges to legislation in other provinces. It isn't clear, however, that such challenges would have the same success.

Some health-care professionals hailed the court's ruling as a recognition that Canadians should have the right to pay for privately insured medical services as a way to alleviate backlogs in the public system. "The Supreme Court is sending a warning shot to governments" in Canada that there is "no valid reason for stopping private health care" if the public system fails to provide timely access, said Normand Laberge, chief executive of the Canadian Association of Radiologists…

In practice, the demand for private services is likely to revolve around nonurgent care, Ms. Maioni said. In countries such as the U.K., which have a parallel private market, most of the urgent and expensive life-threatening cases still go back to the public system, she said.

Questions remain about how the ruling's effects will play out. The Quebec government indicated it will ask the Supreme Court to stay the ruling, possibly for six months to two years, so the province can make adjustments, which could involve altering the law or moving to reduce waiting times for public services.

And while the court ruled that Quebec's law violated the provincial bill of rights, the justices split 3-3 over whether it violated the federal charter of rights; and most provinces don't have their own bill of rights. What's more, since the case was heard, two justices have been added who are viewed as having relatively strong social democratic leanings, which could swing any future rulings against challenges to the public health systems.

More on the distortions caused by government meddling in the healthcare marketplace can be found in this previous posting.

Either you deal with economic reality or it will deal with you - on its own terms. That was something Hillary Clinton was too ignorant to grasp when she led an effort in the early 1990's to socialize medicine here in the USA. It is something others on the left still haven't learned.

Government cannot wave a wand and make the fundamental laws of economics go away. That is why socialism doesn't work. It is why socialized medicine will never work.


Mark Steyn adds his comments:

...On the other hand, to spot the drawbacks in your medical treatment, you first have to be getting some. And that's the design flaw in the Canadian system. As the chief justice, Beverley McLachlin, put it, "Access to a waiting list is not access to health care" — and in Canada you wait for everything. North of the 49th parallel, we accept that if you get something mildly semi-serious it drags on while you wait to be seen, wait to be diagnosed, wait to be treated. Meanwhile, you're working under par, and I doubt any economic impact accrued thereby is factored into those global health-care-as-a-proportion-of-GDP tables. The default mode of any government system is to "control health-care costs" by providing less health care. Once it becomes natural to wait six months for an MRI, it's not difficult to persuade you that it's natural to wait ten months, or fifteen. Acceptance of the initial concept of "waiting" is what matters...

Two recent letters to the editor of the Wall Street Journal (available for a fee) share their thoughts. The first letter includes these points:

...read Lives at Risk: Single-Payer National Health Insurance Around the World by John C. Goodman, Gerald L. Musgrave and Devon M. Herrick. The authors examine 20 such systems and conclude that rationing by waiting is pervasive, governments overspend for the healthy and deny care for specialist and life-saving medical technologies to the sick, and leave health-care choices to bureaucrats rather than patients. Single-payer systems, in other words, often deny choice and access to the sick.

This denial and limited access also exists in market-driven systems, as Drs. Relman and Angell rightfully point out, but at least sick patients in market-driven systems can explore options outside of rigid federal bureaucracies, as many Canadians do by coming to their neighbor to the south for care. The Canadian court decision debunks the myths that government systems offer equal access to care, that they offer a higher quality of care to all, and that a paternalistic government can take care of all of the people all of the time.

The second letter adds these thoughts:

...how good intentions can justify any form of totalitarianism. Preventing citizens from purchasing as much health care as they want and can afford under the pretext that it "wastes" resources needed to fund "free" health care presupposes that the state is the rightful owner of all wealth...