No medical insurance scheme in Canada covers all health related or medical expenses. For example alternative treatments such as acupuncture are generally excluded from coverage. Additionally, experimental treatments as well as treatments where the cost is deemed disproportionate to the potential benefit are normally excluded. Dental treatment is excluded except where done at a hospital by necessity. Physiotherapy is also usually excluded. Certainly the cost of pharmaceuticals are generally excluded unless administered in a hospital although some provinces do offer some assistance in paying for drugs for those living in poverty, the elderly, and other persons in specific circumstances.
The exclusions normally result from two considerations:
a. An assessment of the proven benefits of a treatment relative to its cost; and
b. A perception that full coverage of all health related expenses would be far too expensive and implementation of such a scheme would impose too great a tax burden on Canadians.
Because of the second of these considerations all jurisdictions have opted for extensive but still partial medical coverage but sometimes extending that coverage in small increments as public finances permit with their balancing of other priorities (education, crime prevention, economic development) or extending it to certain groups that legislators have identified as having a particular need that should not be ignored. Individuals are, however, permitted to purchase private insurance to cover those expenses not covered by the Medicare scheme.
Each provincial plan is highly complex with detailed rules and procedures for determining what is covered and what is not. However, suppose that the provincial legislation that created the BC Medicare plan set out that:
BC Medicare only covers the cost of doctor prescribed pharmaceuticals:
a. For everyone if they are administered in a hospital; and
b. For persons 65 and over if they are administered outside of a hospital.
Your review of Hansard reveals that the debates in the BC legislature give the rationale for the extension of full pharmaceutical benefits to people 65 and over was that elderly people tend to have higher health care costs, they tend to have lower incomes, and legislators frequently expressed that they believe that after a lifetime of contribution to society, elderly people should be should be offered particular benefits and relieved of at least some of the anxieties of daily life.
Your task: Suppose that this legislation has been in place for some time when a widow age 64 decides to challenge the limitation of coverage for pharmaceuticals prescribed outside of a hospital. She has come to you because she is your mother’s neighbor and your mother has bragged to her how her child knew all about the Charter and could tell the widow as to whether she has a shot at establishing that the Medicare law breaches her rights. After spending some time regretting that maybe you consumed perhaps a bit too much wine over the Christmas season and perhaps exaggerated your knowledge of Constitutional law a bit you decide to do your best to advise her. Because you are concerned that your mom’s neighbor will misconstrue what you have to say as legal advice, you decide to write her a brief paper with the heading:
“THIS IS NOT LEGAL ADVICE – IT IS SIMPLY LEGAL INFORMATION THAT YOU RELY ON AT YOUR OWN RISK”
Having covered yourself in this regard, you decided that best approach to advise her on her chances of establishing a breach of the Charter based on:
a. Section 15 of the Charter and the following possible grounds of inequality:
Inequality on the basis of poverty, because those who are under 65 and lack financial resources are unable to access an essential dimension of health care whereas those who have those financial resources are able to do so.
Inequality on the basis of the individual’s state of health because those who are under 65 and in poor health are left in a significantly worse position than those who are in good health because of the refusal of the legislature to cover the full cost of prescribed pharmaceuticals.
b. Section 7 of the Charter on the basis that the “security of the person” of individuals under age 65 is significantly impaired by their inability to access pharmaceuticals, especially if they lack the resources to pay for them. Your mom’s neighbor is adamant that she views the cut-off at age 65 arbitrary – “why not 64, she says?”.
Flush with how easily you broke this issue down, you decide to really put your reputation on the line and justify your mother’s rightful sense of pride in your academic achievements. Even though you do not really have quite enough information to do a full section 1 analysis, you decide that you are going to consider it and do as much as you can. You decide that you are going to provide your mom’s neighbor with your general opinion on how the government might be able to justify the legislation even if her rights are found to be breached. You vaguely remember from your readings and musing about Charter rights with other members of your cohort that the following cases might be useful in your analysis of all these issues and decide to read them and if they prove appropriate then incorporate them into your briefing wherever you can.
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