Government has a right, responsibility to limit health care
In the utter absence of political leadership, it has been left to the courts to shape health policy in this land.
The case of George Zeliotis, a Montreal-area man who sought to purchase insurance to pay for a hip-replacement operation, made waves in 2005 when the Supreme Court of Canada struck down Quebec's ban on using private insurance for services covered by medicare in instances where waits are unreasonably long.
The court said if the public system cannot deliver care in a timely manner then access to alternatives (that is, insurance and private care) should not be outlawed.
The decision did not lead to the creation of a parallel private health-care system, as many predicted it would. Rather, it forced governments to take the issue of waiting times seriously.
Now comes a decision from the Ontario Superior Court of Justice that could ultimately have as much impact.
The case of Adolfo Flora, an Ontario man suffering from liver cancer, is truly tragic. He was infected by hepatitis-C-tainted blood during surgery years ago and, as a result, developed liver cancer.
Doctors determined that Mr. Flora's cancer was so advanced and difficult to treat that he was not eligible for a liver transplant in the province. Mr. Flora instead went to a private facility in England and underwent an experimental treatment, in which he was transplanted with a piece of his brother's liver.
That operation saved his life. It also cost $450,000, and Mr. Flora asked the Ontario Health Insurance Plan to reimburse the money. OHIP refused, saying the treatment was not an insured service in the province. (Later, it was added to the list of insured services and the operation is now done routinely in Canada.) Recently, the Superior Court upheld that ruling.
"Certainly the facts of the case are such as to create great sympathy for Mr. Flora," the three justices wrote in dismissing the claim.
"However, the legislative scheme under which health care is provided to Canadians does not have, as its purpose, the meeting of all medical needs."

Mr. Flora's case is essentially the flip side of the coin of the Zeliotis case.
In the 2005 ruling, the Supreme Court said that government cannot impede access to private care for those who wish to pay for it, particularly if care is not delivered in a timely manner in the public system.
In the 2007 ruling, the Superior Court of Ontario said that if you do take the private route, you do so at your peril, that you cannot expect the public system to pick up the tab in all circumstances.
In other words, governments have a right to say "No," to establish rules on what is and is not covered by the public system.
This is eminently sensible, necessary even. There is no such thing as an open-ended insurance system, at least not one that is sustainable.
Mr. Flora argued that by denying him access to lifesaving care, OHIP had violated his rights under the Canadian Charter of Rights and Freedoms.
The court rejected that argument, saying that "in this case, the government has prohibited nothing" -- as demonstrated by the fact that he was treated elsewhere -- and that access to health care "is not constitutionally protected."
Despite Canadians' attachment to medicare, it is not a fundamental right. While fair and free access to medically necessary care is the law of the land, it is perfectly legal for governments to place limits on what is covered.
The Superior Court of Ontario put it this way: "The law is clear that where the government puts in place a scheme to provide health care, that scheme must comply with the Charter. That does not entail that, having decided to provide health care, the government must do everything possible to save the lives of its citizens in every circumstance, including funding all potentially lifesaving treatments."
The law is clear: Governments have discretion.
Now, politicians and policy-makers should be equally clear in explaining how they use that discretionary power. It is not acceptable to make funding decisions in a piecemeal fashion.
One of the most pressing issues in health care today is defining what is and what is not included in the medicare basket of services.
More important still -- given the constant evolution of care -- is the creation of a mechanism for determining if a new treatment (be it surgery, a drug, or a medical device) will be covered by provincial health plans.
Like the Zeliotis case, the most important outcome of the Flora case likely will not be directly related to the judgment. While the ruling itself dealt with out-of-country care, the larger issue is defining the limits of coverage in a publicly funded insurance scheme.
If there is justice -- and an iota of common sense in government -- officials will take from this ruling the key message that governments need to make decisions, and make them promptly and in a transparent manner.
The last thing we need is for the courts to be deciding, on a case-by-case basis, what the medicare system should cover.

Jordana Wolch| Asst Acct Executive
Courtney Rainey Group Inc. | 59 Adelaide Street East, 6th Floor| Toronto, Ontario | Canada M5C 1K6
Tel: 416.815.9100 Ext 262 | Fax: 416.815.1050 | Cell: 416.524.9440 | E-mail:jordana@courtneyraineygroup.co-m