Health care and equality: is there a cure?

I. Introduction For good or for ill, access to health care has become not only a defining national value, but dominant social policy concern Canada. (1) Public support for medicare has remained high, even as other core social programs have been dismantled, (2) and Canadians have continued to insist that equal access must be preserved as system's core and defining feature: Among main impetus for Canadian social health reform 1960s was view that health care was a 'basic right' of Canadians and that no citizen, no matter how economically disadvantaged, should ever be denied access to necessary medical health care services. Implicit initial expectation was belief that a national universal health insurance program would help to sever link between poverty and illness by ... eliminating economic access barriers to health care this country. (3) Successive Canadian governments of political stripes have affirmed their commitment to ideal that: all Canadians have timely access to health on basis of need, not ability to pay, regardless of where they live or move and have asserted that this remains an underlying principle of health care reform. (4) Yet, these same governments appear unwilling or unable to undertake systemic changes, relation to both determinants of health and primary care, that a succession of health care reports and studies have argued are necessary to ensure continued effectiveness and viability of public system. (5) Notwithstanding promise of universality, it is clear that health needs of certain groups, including Aboriginal people particular, are not being adequately met. (6) Even those Canadians for whom public system has traditionally worked well fear their continued ability to get care they need, and especially to obtain it a timely way, is being seriously eroded. (7) And, while politicians have proclaimed their support for medicare, governments' commitment to core principles set out under Canada Health Act (8) is often belied by their actions, or inaction, key areas of health (9) In this context, it is hardly surprising that access to health care is increasingly being articulated as a Charter right and pursued before courts. (10) When first considering application of Charter equality rights to health care system its 1990 decision Stoffman v. Vancouver General Hospital, (11) Supreme Court of Canada characterized health care delivery as a private rather than a public matter. In his majority judgment, Justice LaForest concluded that: the provision of a public service, even if it is one as important as health care, is not kind of that qualifies as a government function within meaning of Charter. (12) Seven years later, however, Eldridge v. British Columbia (Attorney General), (13) both tone and substance of Court's approach to health care as a Charter equality issue had significantly shifted. In Eldridge, Court rejected province's argument that Charter was not engaged by B.C. government's failure to fund, and individual hospitals' failure to provide, medical interpretation for Deaf. In his judgment for a unanimous Court, Justice LaForest asserted that: in providing medically necessary services, hospitals carry out a specific governmental objective ... In recent decades ... health care, including that generally provided by hospitals, has become a keystone tenet of governmental policy. (14) Justice LaForest went on to find that, as a matter of substantive equality, governments will be required to take special measures to ensure that disadvantaged groups are able to benefit equally from government services (15) and particular, health care services. (16) Seven years after its landmark decision Eldridge, Supreme Court's judgments Auton (Guardian ad litem of) v. …

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