Jagmeet Singh says the Canada Health Act could be used to challenge private health care. Could it?

National leader of the NDP, Jagmeet Singh, has sounded the alarm about privatization creeping into the public health system.

Recently, Ontario Premier Doug Ford announced that he wants to give privately owned, for-profit clinics a bigger role. These facilities are privately operated clinics that receive public funding from the Ontario Health Insurance Plan (OHIP) to perform medically necessary procedures.

But Singh says he is concerned that the trend of using public money to fund procedures at private clinics will drain resources from the public system.

He said the federal government must use the Canada Health Act (CHA), which he says has significant powers to challenge for-profit privatized care.

“And it should be used more regularly and aggressively to protect public health services,” Singh said Monday, speaking to reporters on Parliament Hill.

But what exactly does the CHA do, how is it used, and is it a tool that those opposed to healthcare privatization can rely on to stop this trend? CBC News explains:

What is the Canadian Healthcare Act?

The Canada Health Act, enacted in 1984 after being passed unanimously by the House of Commons, established criteria to ensure “reasonable access to health services without financial or other barriers”.

This meant Canadians could access medically necessary services without being billed directly for those services. All of these services would be covered by the provincial or territorial health insurance plan, by law.

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It also established a set of conditions related to health care access that provinces and territories had to meet in order to receive transfer payments from the federal government, known as the Canada Health Transfer (CHT). One of these conditions stipulated that patients could not be billed an additional fee for medically necessary services, also known as “extra-billing”.

What are the limitations of private health insurance?

Singh said he wants the government to use the CHA to challenge for-profit care. But there are no restrictions on private delivery within public health systems, said Colleen Flood, director of the Center for Health Law, Policy and Ethics and graduate research chair at the University of Ottawa.

“What Ford has proposed, with private, for-profit clinics, is perfectly fine under Canadian health care law,” she said.

According to the federal government’s website, the CHA does not prohibit the provision of health care services by private companies so long as residents are not billed for covered services.

“In fact, many aspects of healthcare in Canada are privately provided. Primary care physicians usually bill as private contractors to the provincial or territory health plan. Hospitals are often incorporated private foundations and many aspects of hospital care (e.g. housekeeping and bedding) are performed privately,” the website reads.

“Eventually, in many provinces and territories, private entities are contracted to provide services under the public health insurance plan.”

It’s the finance side of the CHA where restrictions are placed that prohibit patients from charging out-of-pocket for medically necessary hospital and doctor services, Flood said.

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“What is medically necessary and how those rules are set will be determined from province to province.”

No province or territory completely prevents a two-tier system — they’re just trying to make it less appetizing for doctors, she said.

“Almost all provinces have this rule that says, ‘Look, if you want to bill the public system, you just have to bill the public system. If you want to sign out, get off.'”

Bacchus Barua, director of health policy studies at the Fraser Institute, said one problem with the CHA is that the conditions imposed are “remarkably vague,” creating a risk-averse environment around health policy.

“Because of this risk aversion, many provinces are actually going beyond what is specifically required by the CHA to avoid being inadvertently hit by the federal government’s interpretation,” he said.

“We’re not seeing the kind of experimentation with policies that has been proven elsewhere to work in most other universal health systems.”

What happens if a province or territory breaks the law?

As the CHA notes, when hospitals and physicians charge for medically necessary services, the federal government should deduct $1 from the provincial or territory annual grant, or CHT, for every dollar that is assessed for so-called supplemental billing.

Has the federal government taken action against the provinces for violations?

Prime Minister Justin Trudeau responded to Singh’s concerns about enforcing the CHA, saying Monday his government will continue to defend Canada’s health law and could withdraw money from provinces that violate it.

“In the past, this government has withdrawn funds from provinces that they have not respected. We will continue to do so.”

According to the Canada Health Act Annual Report 2020-2021, provincial and territorial health insurance plans have largely met the requirements of the Canada Health Act. But there have been a few instances where the federal government said it had to withhold funds.

A deduction of $4,521 was made from the March 2021 CHT payments to Newfoundland and Labrador for fees at a private eye clinic. Both New Brunswick and Ontario were fined around $65,000 and nearly $14,000, respectively, for fees at private abortion clinics.

The biggest violator, according to the report, was British Columbia, which provided a financial statement of nearly $14 million in additional billing and usage fees for fiscal year 2018-2019. A deduction of the same amount was made from British Columbia’s CHT payments in March 2021. (The federal government reimbursed the province in recognition of its reimbursement action plan).

The province was at the center of a lawsuit brought by private health advocate Dr. Brian Day, the owner of Cambie Surgery Center in Vancouver, who argues patients should have the right to pay for services if waiting in the public system is too long.

But dr Michael Rachlis, a public health physician and associate professor at the University of Toronto’s Dalla Lana School of Public Health, says the federal government has largely not acted on provinces or territories for violating bans on billing additional medically necessary services .

“The way the law is enforced — it’s not like there are federal inspectors,” he said. “The provinces are asked to investigate themselves. There is no real enforcement mechanism.”

Rachlis also believes there are many private clinics across Canada that charge for Medicare-covered services or upsell services, citing a 2017 Globe and Mail research and Ontario Health Coalition work.

“And the federal authorities are doing nothing.”