There is normally no shortage of controversy surrounding Supreme Court of Canada Charter decisions. Nevertheless, the widespread condemnation by legal and health-policy commentators of the Court's June, 2005 decision in the case of Chaoulli v. Quebec was striking.

When the Court ruled in Chaoulli that prohibitions on the purchase of private health insurance for services covered by the public health system were unconstitutional, given excessive waiting times in the public system, the decision was described as a "calamity." Critics saw the decision as a potential death knell to medicare. And there were calls for using the Charter of Rights' notwithstanding clause to override it.

The health-policy community had little warning that such a legal outcome was possible. The constitutional challenge brought by Dr. Jacques Chaoulli, a doctor who wanted to offer private health services, and George Zeliotis, a Quebec patient who had been on a waiting list for hip replacement surgery, had been rejected by both the Quebec Superior Court and a three-member panel of the Quebec Court of Appeal, and expectation remained that the Supreme Court would affirm the lower courts.

What added to the concern of health-care administrators and policy experts was that Chaoulli seemed to undermine the status quo by mandating legal limits on the extent to which care can be rationed and on the permissible length of wait times. For the first time, patients were not to be regarded as bystanders but as stakeholders who could demand accountability.

Largely overlooked in the academic debate was whether anyone had an answer to the fundamental question that had moved the Court to intervene: whether it was legally and morally justifiable for the state, on the one hand, to require individuals to access health-care services only through a universal, single-payer system; and then, on the other, to deny them access to needed service when they were sick or dying. Could the sick be compelled to wait indefinitely, even if it resulted in deterioration of their health or death?

It bears explaining why it cannot be legitimate for a free society to prevent individuals from using their own resources to protect their health when the publicly funded system does not provide care in a timely manner. In these circumstances, the state is essentially forcing individuals to endure pain and even death in aid of the efficient operation of a social program. This offends the basic liberal principle that all persons should be treated as equals; no citizen may be treated as a mere instrument to improve the welfare of another.

I believe that the case marks a watershed in the evolution of health policy. But far from heralding the destruction of Canada's publicly funded health care, Chaoulli may provide the key to its reform and sustainability. At bottom, Chaoulli introduces a new "sixth principle," beyond the five already enshrined in the Canada Health Act: patient accountability.

Patient accountability means that those responsible for funding the health system and providing care are answerable to patients for the timeliness of service, and that this accountability can be enforced through the legal system.

It has now been over a year since the Supreme Court handed down its Chaoulli decision. On the surface at least, little has changed. Millions of Canadians are still waiting too long for necessary care. While Quebec has introduced legislation providing for a care guarantee along with limited recourse to private insurance, there have been no legislative changes federally or in other provinces.

Yet Chaoulli means that change in the health care system is inevitable. The federal and provincial governments and the health-policy community now understand that unless they set enforceable limits on waiting times for medically necessary care, they will be required to provide individuals with the opportunity to pay privately for health care services. Far from destroying medicare, this reality will prompt a patient-centred debate over the shape of medicare.

How will that shape evolve? Two viable reform options present themselves: an improved, sustainable version of the single-payer, universal system that now exists, with performance benchmarks; or introduction of a privately funded option that would be available to patients who exceed maximum acceptable wait-time benchmarks within the publicly funded system. The choice between these options will ultimately be made by provincial governments and legislatures, not courts.

For too long, debate over reform to the Canada Health Act has been regarded as off limits. The fact that we will now be required to seriously debate the foundations of the public health care system on the basis of evidence and outcomes, rather than ideology and rhetoric, cannot help but improve the care provided to all Canadians.

- Patrick J. Monahan is Dean, Osgoode Hall Law School. This text is drawn from the C.D. Howe Institute's 2006 Benefactors Lecture, delivered last night in Toronto.
Edition: National
Story Type: Opinion
Length: 793 words