Law Times

Law Times • augusT 24/31, 2009 FOCUS Ontario's critically ill system is a ticking time bomb Private health care a rose by another name? S BY I. JOHN HARVEY For Law Times amuel Schwartz makes no bones about his role on the board of governors at Mount Sinai hospital where he advises the institution on how to generate more streams of revenue. It's a commitment the Davis LLP partner is making to the community, but he's also under no illusions as to how critically ill the Ontario health-care sys- tem has become. Th e ticking bomb of health care in Ontario, says Schwartz, is that regardless of what legis- lation is passed and the politi- cal optics, time is running out. "If the government doesn't do something in a major way soon, we will fi nd ourselves with a budget that isn't just 50 per cent taken up with health care but could be 110 per cent," he says noting that the short- age of doctors and wait times have combined to create a new demand and thus a market for private health care. And therein lies the dilemma around private health care in Ontario — or more precisely the two key issues driving the debate: when it is acceptable for private services to provide publicly funded procedures as opposed to private services providing proce- dures covered by the public plan but paid for privately? Ostensibly, Bill 8, the Com- mitment to the Future of Medi- care Act, which was passed in 2004, locks out the concept of two-tier medicine and closes the door on extra billing and queue jumping. At the same time, the gov- ernment set up an agency to cut down wait times and to help focus resources on the most backlogged areas. Five years later, the debate is still raging as to whether it's been a successful piece of legis- lation, more so since U.S. Pres- ident Barack Obama pledged to overhaul the American health-care system. Although that pledge, too, is faltering. Th e legislation arrived just before the 2005 Supreme Court of Canada decision in Chaoulli v. Quebec (Attorney General). It held banning pri- vate medical insurance, which had sprung up because of long waiting times, violated the Quebec Charter of Human Rights and Freedoms. It was a close 4-3 decision that held the Quebec Health Insurance Act and the Hospital Insurance Act were a threat to the life and security of persons under the Charter and a contra- vention of s. 7 of the Charter. Th e claim involved a then- 73-year-old George Zeliotis who was awaiting a hip re- placement and who joined Dr. Jacques Chaoulli in petitioning the court to strike down the provincial legislation barring private health insurance. In the fallout, many pundits and critics rushed to predict the demise of medicare as we knew it and as Tommy Doug- las had enshrined it. Certainly Bill 8 handily anticipated any sudden rush for private clinics and insurance in Ontario. But, as Schwartz notes, the problem with the current system is that it has become a highly politicized sacred cow where the mere whiff of the word "private" sends politicians screaming to the attorney general's offi ce or ducking for cover to avoid em- barrassing questions. Since Chaoulli however, the Quebec health-care system has arguably strengthened in com- parison to other provinces. Indeed, starting Sept. 30, Quebec private clinics will be able to perform some 56 pro- cedures, which now already include hip and knee replace- ments and expand to cover hysterectomies, cataracts, bar- iatric, and other surgeries. By blending the private clinics with the services of public institu- tions and allowing doctors to be paid both privately and through the public insurance system, pro- ponents argue Quebec has made great strides forward in delivering care to its populace. Critics, who see Ontario's Commitment to the Future of Medicare Act as protectionist and politically motivated leg- islation, however, say the law should be challenged and re- ally hasn't done much to stop a two-tier system from develop- ing in the province. "I can't believe the Ontario Medical Association let that go through unchallenged and that they haven't challenged it yet under the Charter," says Don Copeman, founder and CEO of Copeman Healthcare Centres which run private clin- ics in B.C. and Alberta. "Th ere are a lot of angry doctors in Ontario who were made civil servants in eff ect and are be- ing dictated to as to how they practise medicine." Copeman's company is open- ing a clinic in Edmonton and plans to bring its operations to Ottawa, London, and Toronto sometime in the near future. First, he says, many private clinics in Ontario off er de fac- to privatized medical services despite the legislation. Some, he says, were grandfathered in such as the Shouldice Hernia Centre, which is renowned for its treatment of Ontario's health-care system is about to collapse and private clin- ics could help stop disaster, says Samuel Schwartz. hernia surgery. Others are run as cos- metic surgeries in which some dermatology work is done by doctors who have opted out of the public system. "Th ere's nothing wrong with private-clinic doctors pro- viding services paid for by the public system," says Copeman who was involved in funding the Chaoulli legal battle. "We do that all the time in Alberta for example." He says the reason patients pay $3,000 or more to sign up at the clinics is because they take a proactive or wellness ap- proach up front with dieticians, kinesiologists, psychologists, and other non-publicly funded health professionals providing co-ordinated care with doctors who can also provide publicly funded medical services. "Th e point, though, is it's all under one roof and they talk to each other about your care," he says. In most cases, he adds, pa- tients would have to go to fi ve or six diff erent offi ces over sev- eral months to accomplish the same level of care. "We're at a point where we have to have summit meetings with stakeholders, employers, unions, hospitals, government offi cials, and start asking, 'How are we going to fund this,'" says Schwartz. "Everyone has to chip in because the government alone cannot handle an explosion in medicare costs. Given the current demographics, diabetes alone has the potential to be- come a health tsunami which will overwhelm the system." He says a proactive, well- ness approach, getting more creative as the private clinics are doing is something that should be seriously explored, despite the political optics. "Th e private health-care issue is seen as the third rail," he says. "You step on it and you die." In any event, says Cope- man, the type of private health care vociferous opponents rail against won't ever come to Canada. What he'd like to bring in is a system funded by supple- mentary private health in- surance plans. Without the insurance product in place, there is no substantive private health care. "Th ose who can pay $50,000 cash for a hip replacement are already opting out of the sys- tem and going to the U.S.," he says. "Th at money is going out of Canada. My point is to keep that money in Canada." Th e net eff ect of that money leaving, he says, is to invest in the American health-care sys- tem and allow it to remain at over capacity with shorter wait- ing times and with better and more cutting edge technology. "What we have isn't work- ing," says Copeman. "Canada ranks with North Korea in health-care delivery. Almost everyone else, in Europe and Japan, delivers better PAGE 13 care and they all have private health-care options." health LT Canadian Patent Act Annotated Second Edition Canada's most complete guide to patent law, regulations and compliance Canadian Patent Act Annotated, Second Edition is your one-stop source, bringing together commentary and current case law interpreting patent legislation. This includes all of the relevant statutes, regulations and rules you need to provide your client with the best patent advice available. Benefit from: • all relevant legislation, cases and commentary • in-force proclamation dates that alert you to amended sections that apply to your case • text and annotations on repealed provisions of the Act that continue to govern patents in force today • provisions not yet proclaimed in force that help you anticipate statutory change • English and French text for each provision of the … and more! allowing for the most reliable interpretation Written by a seasoned intellectual property practitioner, you can depend on reliable guidance through all aspects of Canadian patent law. Canadian Patent Act Annotated, Second Edition provides easy access to a complete and up-to-date analysis of Canadian patent law and practice. ORDER your copy today Looseleaf & binder • $227 • Releases invoiced separately (1-2/yr) P/C 0406031000 • ISBN 0-88804-168-3 For a 30-day, no-risk evaluation call: 1.800.565.6967 Canada Law Book is a Division of The Cartwright Group Ltd. Prices subject to change without notice, to applicable taxes and shipping & handling. www.lawtimesnews.com LT0809 Robert H . Barrigar, Q.C. Patent Act

• Cover
• LSUC Honours
• One Day In 1977
• Focus On Health/Life Sciences Law