Still waiting — the Chaoulli decision, 10 years later

Ten years ago, there was a ringing victory for patients stuck on waiting lists in Quebec. Jacques Chaoulli challenged the provincial government’s health-care monopoly and, in June 2005, he won — or so it seemed at the time.

Specifically, the Supreme Court of Canada ruled that when the government is unable to offer timely access to needed care, the prohibition against purchasing private health insurance is a violation of patients’ rights. “Access to a waiting list,” declared Chief Justice Beverley McLachlin in her verdict, “is not access to health care.” The decision rested on the premise that long wait times in the public health-care system led to irreversible suffering for patients, and even premature death in some cases.

Unfortunately, the government’s response to this historic opportunity to improve patient well-being was very timid. First of all, the bill finally adopted by the government in December 2006 authorized Quebecers to purchase duplicate private insurance for a small number of treatments like hip and knee replacements and cataract removals. At least, in principle it did. In practice, however, no actual market for this kind of insurance has developed, because of the limited number of admissible surgeries. The ongoing prohibition on mixed medical practice hasn’t helped, either.

The new law also authorized public hospitals to sign partnership agreements with private surgery clinics for the transfer of a certain volume of surgeries and treatments that remained covered by the public system. Three agreements of this type signed in recent years have led to significantly improved access in the public hospitals concerned. Yet due to the heavy regulatory burden surrounding such agreements, and to the lack of autonomy of hospital administrators in negotiating and signing them, they remain the exception.

Finally, a new information system was set up to track the evolution of wait times for elective surgery. The government set the maximum wait time for hip, knee, and cataract surgery at six months — although contrary to popular belief, this is not a legal right that patients have, but merely an administrative target for hospitals. And indeed, nearly one patient in five is still waiting over six months for a hip or knee operation.

This database furthermore allows us to observe that average wait times for elective surgeries have remained relatively stable in Quebec since 2008. They have decreased somewhat for cataracts (by 16 per cent) but increased somewhat for hip and knee surgery (by 22 per cent and 10 per cent, respectively). Average wait times in 2014-15 were more than 15 weeks for hip surgery, and close to 17 weeks for knee surgery — and this doesn’t take into account the wait to see a GP, and then again to see a specialist. Of all Canadian provinces, Quebec is where the least hip and knee replacements are performed, as a proportion of the adult population.

The government chose to interpret the Supreme Court ruling narrowly, and as a consequence, the timid reforms adopted have not led to improved access for hip, knee and cataract surgeries. Patients waiting for treatment today still have very few options outside the public system.

Ten years after the Chaoulli decision, we’re still waiting for meaningful change, and Judge McLachlin’s statement remains as relevant as ever. As of March 31, 2015, nearly 20,000 Quebecers had been waiting for surgery in the public health-care system for more than six months.

When the government is unable to offer access to care in a timely manner, there is simply no justification for maintaining a strict monopoly on the delivery of required medical care. It’s time to adopt the reforms we should have adopted 10 years ago by taking inspiration from Europe’s mixed universal systems, which are far more accessible to patients.

Yanick Labrie est économiste à l’Institut économique de Montréal et auteur de « L’arrêt Chaoulli et les réformes en santé : un rendez-vous manqué? » Il signe ce texte à titre personnel.