I just ran across this interesting article:
http://www.cpsa-acsp.ca/papers-2005/Manfredi.pdf(stick the url in google's search box if you hate pdf)
Very long, haven't read it all yet, probably never will. ;) I'll reproduce the first and last two paragraphs. (They're long, so I'm breaking them up a bit.)
Litigating Innovation:
Health Care Policy and the Canadian Charter of Rights and Freedoms
Christopher P. Manfredi
Antonia Maioni
Department of Political Science
McGill University
Prepared for delivery at the 2005 Annual Meeting of the Canadian Political Science Association, London, ON, 1-4 June, 2005.
Is legal mobilization an effective instrument for policy innovation?
This paper seeks to examine this question by studying the use of rights-based litigation in the context of publicly-funded health care. By focusing on a non-American case, the paper seeks to bring the techniques of comparative public law to understand the relationship among litigation, legal rules and social policy.
In an ideal world, legal mobilization would succeed in establishing new legal rules desired by a social movement; those desired legal rules would generate positive policy consequences; and success would strengthen the movement.
In the real world, however, these phenomena are often mutually exclusive. Legal mobilization may fail to establish desired legal rules, but positive policy consequences follow anyway; desired rules may emerge from the legal process, but have no impact on policy or social conditions; unsuccessful legal mobilization may nevertheless strengthen a movement by energizing members around particular causes; by contrast, successful mobilization may enervate a movement or energize a counter-movement. In essence, either legal mobilization is a "hollow hope" (Rosenberg 1991), or rights work as an instrument for shifting policy debate and empowering weaker groups (McCann 1994).
The use of rights-based litigation by advocates of health care policy reform in Canada provides a useful focus for evaluating these two possible scenarios for at least three reasons.
First, health care is the single most important area of Canadian public policy. The delivery and financing of health care services is governed by the Canada Health Act, which requires that provinces provide equal access to publicly administered, comprehensive, universal, and portable health care coverage. Health care consumes about nine percent of GDP and is the largest single expenditure item in provincial budgets.
Second, rights-based litigation is becoming an increasingly common
phenomenon in the development of health care policy (Jackman 1995; Jackman 1995/96; Braen 2002; Jackman 2002; Greschner 2002; Manfredi & Maioni 2002). Key areas already litigated under the Canadian Charter include physician supply management, medical practice regulation, hospital restructuring, and the regulation and provision of specific treatment and services.
Finally, in June 2004 the Supreme Court of Canada heard oral arguments in two cases with potentially profound consequences for health care policy. The policy objective of the litigation in one case is to restrict the scope of public health care provision by challenging the constitutionality of legal prohibitions against the private provision of health care. By contrast, the objective of the litigation in the other case is to extend the range of funded services by establishing a constitutional obligation for provinces to fund a autism treatment as part of their health care policy.
These two cases -- Chaouilli v. Attorney-General of Quebec (prohibition against private provision) and Attorney-General of British Columbia v. Auton (autism) -- provide the substantive focus for our paper. Although both cases involve health care policy, they differ in two important ways. The Chaoulli case involves an individual litigant and seeks to restrict the scope of the public health care system. The Auton case involves a well-organized social movement seeking to extend the system's coverage. Both cases are nevertheless part of a growing trend toward litigating health care policy reform.
...
What are the broader implications of litigating health care reform? In the specific case of autism treatment, the combination of Auton and the Ontario decisions suggest a number of possible consequences, none of which are intended or desirable.
First, given that there is no constitutional obligation to fund ABA or EIBT, but that there may be a constitutional obligation to fund treatment indefinitely once programs are in place, current autism litigation may have a chilling effect on provincial innovation.
Second, the current state of the law in Ontario may provide an incentive for parents whose children have any kind of learning difficulty to encourage autism diagnoses in order to access these programs. Finally, as increased demand meets the reality of finite resources -- in the form of money and qualified therapists -- treatment waiting lists will lengthen. In each of these scenarios, the provincial response will undoubtedly generate even more litigation.
More generally, both Chaoulli and Auton are products of frustration with the inability of apparently unresponsive health care decision makers to provide a desired level of service. Although the desire of Canadians, frustrated by perceived bureaucratic and legislative inaction, to seek health care solutions from the courts is understandable, the benefits and costs of this path to policy change merit closer attention. The obvious benefit is that, when litigation is successful, courts may be able to order governments to act quickly and forcefully. Yet litigation is not without disadvantages.
First, the articulation of policy demands in the form of constitutional rights can exclude alternative policy choices from consideration. Rights-based litigation aims at altering policy priorities in an especially powerful way because of the difficulty of reversing, or even modifying, the priorities set through it. In this sense, health care litigation may, in some circumstances, be understood as a sophisticated form of queue jumping because it posits that a particular health care need deserves a higher priority than it has because of its grounding in a constitutional right.
Second, the adversarial nature of litigation is best suited to resolving concrete disputes between two parties by imposing retrospective remedies. Complex policy issues -- like health care -- involve multiple stakeholders, constantly changing facts and evidence, and predictive assessments about the future impact of decisions.
Finally, rights-based litigation, particularly at the Supreme Court level, by definition imposes national solutions on inherently local problems. These solutions can ignore differences among provinces and suppress the provincial experimentation necessary to find innovative approaches to policy problems. Canadian health care faces a multitude of complex challenges, which requires careful consideration of the contribution that courts can make in meeting those challenges before embracing litigation as an instrument of reform in health care policy.
So.
I think those comments are relevant to your question -- about the possibility of setting "acceptable wait times for treatment in the public system for various diagnoses".
I'd have to ask: for what purpose? Not being stroppy, just not entirely sure what you meant.
If you meant that violating a waiting-time guideline would have somewhat the same effect as excluding a medically necessary service, i.e. would result in the province losing funding -- maybe not a bad idea, in my off the cuff opinion.
If you meant that such guidelines would be somehow enforceable by individuals, whether by suing for a service or by being permitted to go private, say, then I'd say that's a bad idea.
I don't like the idea of hamstringing governments -- "balanced budget" laws, as in some US states, are another example. We elect governments to govern. If we don't like how they do it, we get to throw them out and pick a government that we think will do the job better. I would never want to see this kind of manifestation of the great USAmerican pastime of hating and distrusting government start emerging here.
I think that this kind of thing is precisely the kind of
policy issue that we elect governments to deal with. I agree with the dissenting judges -- this is not something for the courts to decide. The paper quoted above gives some further explanation of why it's a bad idea to ask the courts to decide it.
In the case of same-sex marriage, to take an example where I think litigation *is* appropriate, there simply is no policy issue. Permitting same-sex marriage isn't going to cost the govt a few billion dollars, or advantage one group of Canadians over another, or create some kind of global warming effect that will change life as we know it. It really is a matter of individual rights, and equal protection and benefit.
How the govt spends the kind of money involved in health care is not. It is a collective issue, and an
extremely complex one. In a social democracy, how individuals access basic necessities, where the resources to provide them are essentially finite no matter who pays for them, is a matter for public decision, not just private choice. It just isn't the same thing as who gets to get married.
I'm a little flummoxed by which judges were on which side. MacLachlin, yeah, she's an individuals-rights-ist. Lebel and Binnie on the side of the angels though? And Bastarache, the defender of all rights collective (when it comes to francophone minority language rights, anyhow), voting to strike down? Where were Louise Arbour and maybe Claire L'Heureux-Dubé when we needed them ...
I really wish I could give you an English version of the Quebec Court of Appeal decision in the Zeliotis/Chaoulli case:
http://www.canlii.org/qc/jug/qcca/2002/2002qcca10171.htmlbut I can't. Or even better, the Superior Court decision that preceded it, which doesn't even seem to be on line in the original. Those judgments do an excellent review of the issues and the submissions by the defenders of the system, and the evidence they presented.
I can't even find the factum of the Charter Committee on Poverty Issues on line. ...
Okay, here's the AG Canada's factum:
http://www.healthcoalition.ca/int-8.pdfVery good to read; references WHO studies, all sorts of stuff.
55. Advocating a "new universalism" that makes the state the central player in the organization and funding of health services, the WHO expressed the following reservations about private health care systems:
"The findings also lead away from market-oriented approaches that ration health services to those with the ability to pay. Not only do market-oriented approaches lead to intolerable inequity with respect to a fundamental human right, but growing bodies of theory and evidence indicate markets in health to be inefficient as well. ... Health is an important component of national welfare. Achieving high health outcomes requires a combination of universal entitlement and tight control over expenditure. This report advocates a 'new universalism' that recognizes governments' limits but retains government responsibility for leadership, regulation and finance of health systems."
56. Studies carried out by the OECD take a similar view and point up the risk to fair access to health services posed by health care models that draw on private funding.
57. Ideally, the state would provide services to everyone, but current world economic conditions are such that states are unable to deliver the full spectrum of services. That is why no industrialized country has a fully public health care system.
(It makes the point that Canada *already* has private delivery of medical services, since not all services are covered by the public plan.)
The issue is always going to be how to allocate scarce resources. Requiring that they be allocated according to priorities set as a matter of public policy is one way. Permitting individuals to self-allocate by purchasing on the market is another.
If we really do believe that health care is a "public good", that everyone is as entitled to basic health care as they are to a basic education, for instance, then we just don't start permitting self-allocation by those with the money to do it.
btw, the fact that we do do this with education just wouldn't counter that idea: the resources for delivering education are nowhere near as scarce, expensive, as the resources for delivering health care. And the effects on an individual (many more of whom would be likely to suffer those effects in the case of health care) if the public system were not able to deliver would almost never be nearly as devastating, either financially if the service had to be purchased or in terms of the actual effect of not getting a particular service. At present, permitting basic education to be purchased privately does not subtract from the public system. But note that there are demands to be entitled to withdraw from the public system not just physically, but financially too: "vouchers". And I'd expect exactly that in the health care system -- attempts by the opted out to withdraw their financial support for the system -- with far more negative effects foreseeable.
Bottom line: if one buys the argument that prohibiting private insurance is an unjustified violation, then it wouldn't likely matter how many federal-provincial agreements about waiting times or anything else there were. If one individual claimed that s/he needed assurance that if s/he is run down by a bus, the air ambulance will be there in 5 minutes, and the public plan (obviously) couldn't provide that assurance, the individual would have a rights-violation claim.
Next up (and I'm not really joking): claims that because the police can't be there to protect you when somebody tries to rob you on the street, it is a violation of the right to life to prohibit you from carrying a pistol around in your pants.
That really is where we go when we start saying that governments --
we -- are not entitled to make policy designed to achieve the best outcomes on an aggregate basis, and have to provide guarantees to each individual who wants them or let the individual take the matter into his/her own hands, no matter who will foreseeably (even if s/he cannot be identified this instant) suffer as a result.
Printer-friendly format
Email this thread to a friend
Bookmark this thread
(1000+ posts)
Send PM |
Profile |
Ignore
