‘That’s not universal health care’: Lawyer warns UCP’s Bill 11 could create financial barriers for Albertans

Emma Phillips, a lawyer, joins Alberta Primetime's Michael Higgins to discuss whether a UCP bill violates the Canada Health Act.

Pressure is building on the federal government to challenge Alberta on a UCP bill allowing doctors to work in both public and private health streams. A recent legal opinion concludes Bill 11 contradicts the Canada Health Act. Lawyer Emma Phillips joins Alberta Primetime’s Michael Higgins to discuss how Bill 11 violates the Canada Health Act.

This interview has been edited for clarity and length.

Michael Higgins: As author of this legal opinion, which we should point out was commissioned by the Canadian Health Coalition, what is it about Alberta’s dual practice model that pushes it out of bounds with the Canada Health Act?

Emma Phillips: Bill 11 introduces an entirely new system, which doesn’t just allow for, but it really entrenches a two-tier system of medical care. Which allows for those with the means to pay to access medically necessary services faster than those who depend on the public care system. Under the Canada Health Act, the provincial insurance systems are required to ensure that all residents are able to access reasonable medical necessary services on what’s called a uniform basis, on a universal and uniform basis, meaning on the same terms.

But under Bill 11, doctors are going to be able to work both in the publicly funded medicare system while also charging a fee for private services. That means that when you show up to your doctor’s office for your hip surgery, for example, you may hear from your surgeon, “I can provide you with this hip surgery in the normal wait times and in the publicly funded system, or I can provide you with the same service but on a much faster timeline.”

What that means is that those with the ability to pay have much faster access than those without. That’s not universal health care, that’s not uniform terms and services and those are financial barriers to access healthcare. In our opinion, that’s very much contrary to the Canada Health Act.

MH: Who stands to benefit from Bill 11?

EP: A small minority of patients who have the ability to pay will, but really it’s the private insurance system that’s going to be able to significantly expand their services. Currently in Alberta, like in other provinces, medically necessary services are only insured by the public health insurance system. This new legislation, this new structure, enables for a vast expansion of the insurance system. I think the more important question is, who’s going to lose out? It will be the vast majority of Albertans who can’t afford private fee paying services.

MH: How much of a solution is this dual practice model for easing health care wait times, as the Alberta government has previously suggested?

EP: That’s a key question because as I understand it, one of the main justifications that the Alberta government is putting forward, the reality is that all the evidence from international jurisdictions that have been reviewed by experts time and time again and examined in courts, is in fact introducing this dual practice system increases wait times. Because what it does is it creates a real incentive, conscious or not, for physicians to spend more of their time in the private fee paying sector, for medical facilities, hospitals and clinics to shift their resources, like operating room time, into the private fee paying sector, and it creates real conflicts of interest.

So what does that mean for the vast majority of people who can’t afford to pay those fees? It means longer wait times in the public system. And I am a lawyer, so I think it’s important to note that this exact issue was the subject of a very extensive trial in British Columbia just a couple of years ago. The Cambie trial in 2020 went up to the British Columbia Court of Appeal in 2022 and they had 194 days of hearing, they had 150 witnesses, and they had 40 expert reports. One of the main arguments that was made in that case was we need to allow for dual practice, because it reduces wait times and it allows for more flexibility for physicians and for patients. What the trial judge found, and what was upheld by the Court of Appeal, was at the end of the day, that’s just not what the evidence shows. I know that’s what the government Alberta is pitching, but it just doesn’t stand up under scrutiny.

MH: At what point do you feel the federal government should be weighing in here? If this is a contravention of the Canada Health Act, is there a role now for the federal government?

EP: Absolutely. That’s really what the Canadian Health Coalition is calling for. Under the Canada Health Act, where provinces are in violation of the key principles like universality, reasonable access, the prohibition against charging user fees, (which is part of what Bill 11 not only allows for, but sort of institutes), the Canadian government is required to deduct from the Canada Health Transfer payments to the provinces the amounts that are being charged in extra billing fees.

And this is not an unusual consequence. It’s happened in multiple instances where the federal government has deducted those transfer payments. Alberta, from my understanding, receives somewhere in the range of $7-billion in transfer payments a year for health care. There’s a significant financial consideration here and the federal government, not only ought to but I would say under the Canada Health Act, is required to deduct those fees.

The other thing I want to say about the federal government’s role is that, in multiple instances, the federal government has sort of legally stated that exactly the kind of dual practice system that Alberta is introducing in Bill 11 is a violation of the Canada Health Act. I know that there’s been some reporting about the federal minister of health who’s been in touch with the provincial minister of health and discussed the concerns around Bill 11. The federal minister of health said, “Maybe we need to wait to see what the regulations are going to look like,” and those regs haven’t come out yet. But it’s pretty clear to those of us who are reading Bill 11 closely, the regulations are not going to change anything about the ultimate corrosive effect that Bill 11 introduces.

At most the regulations may exclude certain medical services from dual practice. I understand Alberta’s government said cancer care, or emergency medical services that won’t be subject to dual practice. But that doesn’t mean that all the other areas of practice and medical services that Albertans access on a daily basis won’t be affected by Bill 11. The regs really aren’t going to change the fundamental problem. That means, from my perspective, that the federal government needs to act now to say the problem is with the legislation and it’s in violation of the Canada Health Act.