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Personal inviolability and public health care: Chaoulli v. Quebec.

Article Excerpt
While much of the recent discussion about health care in Canada has been dominated by economic reasoning concerning the effects of privatization on the public health care system, the recent case of Chaoulli v. Quebec (Attorney General) (1) is important because it applies rights-based, constitutional arguments to the issue of whether private insurance can legally be prohibited in order to promote the goals of the existing public health care system.

The case had its origins in the ordeal of George Zeliotis, a 73 year-old retiree from Montreal, who waited one year in order to receive hip replacement surgery from Canada's public health care system. (2) Purchasing private health insurance was not an option for him because Quebec prohibited the purchase of private insurance to pay for medically necessary services and he could not afford to pay out-of-pocket for private surgery. At the same time, Dr. Jacques Chaoulli was unable to obtain a licence to operate an independent, private hospital. As a result of their dissatisfaction, the two combined forces to launch a challenge to the prohibition of private insurance under the Quebec Charter of Human Rights and Freedoms (3) ("Quebec Charter") and the Canadian Charter of Rights and Freedoms ("Charter"). After suffering two losses before Quebec courts, they appealed to the Supreme Court of Canada.

In Chaoulli v. Quebec (Attorney General), the Supreme Court of Canada characterized the issue as "... whether Quebeckers who are prepared to spend money to get access to health care that is, in practice, not accessible in the public sector because of waiting lists may be validly prevented from doing so by the state." (4) In a defense of the right to personal physical and mental inviolability in the health area, it decided that it was not permissible to prevent the purchase of health insurance in such circumstances and narrowly struck down Quebec laws (5) prohibiting its sale to Quebec residents. The prohibition infringes the right to personal inviolability under s. 1 of the Quebec Charter and is not justified under s. 9.1 of the Quebec Charter, since the prohibition does not minimally impair the right. (6)

One limitation of the judgment is that the inviolability right that was affirmed may be criticized as empty, since without a flourishing private health insurance market, the right...