A last chance to fix the system

Whatever you may have heard, yesterday’s Supreme Court decision does not mean the “end of medicare.” It does not even necessarily mean the legalization of private insurance, at least outside of Quebec. And while it undoubtedly sets a precedent for similar legal challenges in other provinces, it does not mean that governments cannot regulate the terms under which health care is delivered or financed. What it does mean is that they can’t kill people.

If for no other reason than that, the 4-3 ruling in the case of Chaoulli v. Quebec is good news. Whether it is good law is another matter. It certainly takes the court deep into complicated questions of public policy, matters that are more usually the concern of legislators, as the court’s minority warned. But while the majority may or may not be justified in its skepticism that an outright ban on private insurance is necessary to the integrity of a public system, it is indisputably the right of individual patients, if they are being denied the treatment they need by the public system, to have recourse to whatever system will treat them. No just law can compel people to die on a waiting list.

Whether other provinces will be forced to throw open their systems to private insurance, then, remains an open question. What is clear, however, is that they must act immediately to shorten waiting lists, or at the very least give patients other options. The jury is still out on whether the state may maintain a monopoly in the funding of essential health care. But if it does so, it must ensure that such care is in fact available. On that the court’s verdict is final.

We should not over-react to this, but neither should we under-react. Those conservatives who are already citing the court’s ruling in support of a parallel private health care system -- so much for “judicial activism” -- are as unconvincing as the Prime Minister’s smug assurances that all is well because of last September’s health care accord. The system is in dire need of reform: only fools and Liberals could be in any doubt about that. But there is still time, if governments act smartly, to preserve a universal public system.

I have no theological objection to private insurance, or to people paying for health care out of their own pockets. And yes, it is true that most other countries’s health care systems allow some role for private insurance (as, indeed, does ours, for services not covered by the public system). But it is also true that most other countries’ health care systems are in as much trouble as ours. There is no simple blueprint out there, and each “solution” brings problems of its own.

While the need for reform is urgent, it is also critical that we step carefully. Insurance markets are unpredictable, volatile things, and there is every danger of making a bad situation even worse. If, for example, patients were permitted to pay for diagnostic tests privately, then apply, results in hand, to be treated in the public system -- while others, no less in need of care, are still waiting to be diagnosed -- then effectively we would be allowing those who could afford private insurance to buy their way to the front of the line for public care. That would defeat the whole purpose of medicare.

The case for private insurance would be more compelling were there reason to believe that the public system was operating at maximum efficiency, i.e. that existing resources could not be used to treat more patients, sooner. That is implausible, to say the least. Indeed, the same analysis that has led many observers to criticize the present system as a “black box,” lacking the most basic data on the costs and benefits of different treatments, also suggests there is ample scope for reform within the system.

Nor are we lacking for detailed plans for reform. These are to be found, not in the lamentable Romanow report, with its comprehensive recommendations for doing nothing at all, but in two other recent inquiries: the report of the Senate committee headed by Sen. Michael Kirby, and that of the Alberta government commission headed by Don Mazankowski. Both propose radical reforms to the delivery and funding of health care -- but within the envelope of public finance. That is, each would seek to import the basic mechanisms that make private markets such efficient allocators of resources -- choice, competition, prices -- while preserving the “single payer” model.

But we have to get on with it. The necessity of reform has been recognized for years. Yet scant progress has been made, since any change would mean some cost and inconvenience to those with a vested interest in the system as it is, notably health care providers, and governments are notoriously loath to face down well-organized interest groups, least of all in matters as charged as health care. Instead, they have simply poured billions of dollars into the system at regular intervals, always in the name of “buying change,” and always with precisely the opposite effect. Provider salaries have gone up. Waiting lists, you’ll notice, have not gone down. In politics, as elsewhere, patients have been left at the back of the line.

It shouldn’t have taken the Supreme Court, and a blessedly unruly patient and his doctor who would not agree to “wait their turn,” to force governments to put patients’ interests first. But now that they have, the choice for governments is clear. Reform the system, fast. Or risk losing it.