Legitimacy & Litigation: The Right to Health Care

Much ink has been spilt by scholars over how courts should adjudicate socioeconomic rights, frequently by scholars in countries that do not expressly include such rights in their constitution. Pedro Felipe de Oliveira Santos describes well the formalist approach that drives many jurists and scholars to argue for minimalism on the part of courts adjudicating socioeconomic rights. The separation of power(s) argument is that courts are not democratically elected–governments are–and so the latter should be responsible for the complex trade-offs involved in allocating public funds to social programs

Accountability of Health Service Providers:Comparing Internal Markets and ManagedCompetition Reform Models

A numberof countries, including the U.K., NewZealand, the Netherlands, and the U.S., have attempted to reform their health care systems using internal market or managed competition reform models. These models signal a departure from reliance on passive indemnity payers or insurers and require proactive purchasers to intervene actively and manage allocation decisions made by physicians. The author explores how these models will ensure the accountability of these new decision-makers to the citizens and patients they ultimately represent. Neither model is found to address accountability issues sufficiently. However, the managed competition model offers the promise of tailoring market (exit), political (voice) and regulatory mechanisms to create the optimal mix of incentives. It is argued that every type of health system (including Canada\u27s) has long overlooked accountability and governance mechanisms. Decision-makers must have incentives to make decisions which strike the right balance between patients\u27 needs and societal interest, and more generally between equity and efficiency. Solving this key problem demands the attention of policymakers, lawyers, and economists

Chaoulli\u27s Legacy for the Future of Canadian Health Care Policy

In Chaoulli, the majority of the Supreme Court of Canada struck down a Quebec law that prohibited the purchase of private health insurance for essential hospital and physician services. The majority found it to be in breach of the Quebec Charter of Human Rights and Freedoms. The Court was split 3-3 on whether it was also in breach of the Canadian Charter of Rights and Freedoms. The decision was initially considered of limited importance by many given that technically it applied only to Quebec. In the six months since the decision was released, however, it has become clear that the legal impact of Chaoulli will be dwarfed by its normative impact on policy debates across the country. Chaoulli has brought Canadian medicare to a fork in the road. At the time of writing, critical decisions are about to be taken across the country. Unfortunately, the level of debate about public and private insurance that has been sparked by Chaoulli reflects the poor account of public and private insurance dynamics in the Chaoulli decision itself. This article discusses the majority judges\u27 poor appreciation of the interface between public and private health insurance across different health care systems and how, subsequently, this lack of understanding has been reflected in media discussions of policy options. The article also discusses likely future challenges in other provinces before moving on to the most critical aspect of all of this-governmental response and what the future holds for Canadian medicare

LESSONS FROM AWAY:An interdisciplinary collectionof studies exploring whatCanada may learn from othercountries\u27 experiences withhealth care reforms

The Canadian health care system is considered a shining example of what it is to be Canadian: to aspire to social justice goals and to achieve those goals at a reasonable cost.\u27 Canadians take great pride in that, by any measure, their health care system is superior to the piece-meal, expensive, and unjust U.S. health care system

The Future of Health Law: How Can Law Meet Emerging Health Challenges?

Canadians have often prided themselves on having one of the best health-care systems in the world, but in recent years our system has fallen to the bottom of relevant international comparisons. Incremental attempts to improve the system have not resulted in significant improvements and the reality is that our most pressing challenges can be addressed only through ambitious, systemic reforms. For example, it is well established that Canada\u27s patchwork scheme for providing long-term care will not scale to meet growing needs as a quarter ofthe population enters retirement age over the next two decades.\u27 As yet further examples, the Canadian universal system does not include essential services such as pharmaceuticals needed outside of hospital walls,2 our present system fails to meet the needs of those living with mental illnesses,3 and there is a persistent gap between the health outcomes ofAboriginal peoples and other Canadians.\u27 Creative solutions are urgently needed as we face a perfect storm ofoutdated health system design, an aging population, provincial governments paying out over 50% of total revenues to health care, and aggressive court challenges from proponents of increased privatization

Modernizing the Canada Health Act

The Canada Health Act (CHA) was adopted in 1984, to shore up a health-care system conceptualized in the 1960s. Under the CHA, universal coverage is limited to medicallynecessary hospital and physician services, to the exclusion of vital goods and services such as outpatient pharmaceuticals, dental care, long-term care, and many mental health services. Inequities resulting from these gaps in public coverage are partly to blame for pushing Canada\u27s health system to the bottom ofrecent international rankings. But there is more to modernizing Canada s health care system, we argue, than filling these gaps in universal coverage. Every major health system review undertaken in Canada over the past decade has ended with a call for greater accountability, and rightly so: accountability is arguably the sine qua non of high-performing health systems. Whereas many countries have established open and rigorous processes for evaluating health goods and services, targeting public spending on those that deliver the biggest bang for buck, Canada\u27s governance mechanism for defining the medicare basket is passive, opaque and only tenuously evidence-driven. A move to expand medicare\u27s scope of coverage must be accompanied by improvements in this type of accountabilit

Canadian Medical Malpractice Law in 2011: Missing the Mark on Patient Safety

This paper surveys the current state of medical malpractice law in Canada, along with current evidence on adverse events in Canadian hospitals, medical clinics, and long-term care facilities. Though there is currently no burning platform to reform Canadian medical malpractice law, the authors raise concerns about the law\u27s failure to deter medical malpractice, as well as concerns about access to justice issues facing victims of medical malpractice. Federal and provincial governments have tried to promote patient safety through various prevention strategies—for example, through the creation of Health Quality Councils, the dissemination of information on best practices, and tighter regulation of private clinics. Although patient safety advocates often contend that the threat of medical malpractice claims may exacerbate problems in patient safety, there is no evidence to support this in the Canadian context. The authors contend that medical malpractice law could be made a more effective component in this drive to promote patient safety

The Boundaries of Medicare: Tensions in the Dual Role of Ontario\u27s Physician Services Review Committee

In this research, we describe and analyse the Physician Services Committee (PSC) in Ontario, focusing on its role in determining what physician services are publicly funded and what services are de-listed (i.e. no longer eligible for public funding). We explain how the PSC\u27s role in determining the boundaries of Medicare is in tension with its role as a medium for labour relations between the government and the medical profession. We suggest that while the values of privacy, secrecy and a lack of transparency may enhance the PSC\u27s fulfillment of its labour relations mandate, they impede the Committee\u27s successful fulfillment of its health policy mandate. The remainder of this paper is dedicated to a detailed investigation of the PSC\u27s process of determining candidate services for de-listing, and the principles upon which it bases its decisions. Particular attention is paid to the principles of open participation, transparency, accountability, and the degree to which these principles are incorporated into the PSC\u27s decision-making

Charter Rights & Health Care Funding: A Typology of Canadian Health Rights Litigation

Canadian health consumers have increasingly relied on the Charter of Rights and Freedoms to demand certain therapies and reasonably timely access to care. Organizing these cases into a 5-part typology, we examine how a rights-based discourse affects allocation of health care resources. First, successful Charter challenges can, in theory, lead to courts granting and enforcing positive rights to therapies or to timely care. Second, courts may grant a right to certain health services; however, subsequently government fails to deliver on this right. Third, successful litigation may create negative rights, i.e. rights to access care or private health insurance without government interference. Fourth, consumers can fail in their legal pursuit of a right but galvanize public support in the process, ultimately effecting the desired policy changes. Lastly, a failed lawsuit can stifle an entire advocacy campaign for the sought-after therapies. The typology illustrates the need to examine both legal and policy outcomes of health right litigation. This broader analysis reveals that the pursuit of health rights seems to have caused largely a regressive rather than progressive impact on Canadian Medicare

Artificial Intelligence in Canadian Healthcare: Will the Law Protect Us from Algorithmic Bias Resulting in Discrimination?

In this article, we canvas why AI may perpetuate or exacerbate extant discrimination through a review of the training, development, and implementation of healthcare-related AI applications and set out policy options to militate against such discrimination. The article is divided into eight short parts including this introduction. Part II focuses on explaining AI, some of its basic functions and processes, and its relevance to healthcare. In Part III, we define and explain the difference and relationship between algorithmic bias and data bias, both of which can result in discrimination in healthcare settings, and provide some prominent examples of healthcare-related AI applications that have resulted in discrimination or have produced discriminatory outputs. Part IV explains in more detail differences between algorithmic bias and data bias, with a focus on data bias and data governance, including the non-representativeness of data sets used in training AI. From this point we turn to look at possible legal responses to the problem of algorithmic discrimination, and, in Part V, we demonstrate the insufficiency of existing ex post legal protections (i.e., legal protections that offer redress after someone has suffered harm), including claims in negligence, under human rights legislation, and under the Charter of Rights and Freedoms. Part VI explores possibilities within the Canadian ex ante legal landscape (i.e., the regulation of AI applications before they become available for use in healthcare settings), notably through federal regulation of medical devices, and identifies gaps in oversight. Finally, in Part VII we provide recommendations for federal and provincial governments and innovators as to the appropriate governance and regulatory approach to counter algorithmic and data bias that results in discrimination in healthcare-related AI, before concluding in Part VIII