Universality and medical necessity: statutory and charter remedies to individual claims to Ontario health insurance funding.

1. Overview The Canada Health Act (CHA) represents the foundation stone of Canada's system of publicly funded health insurance. (1) The primary objective of Canadian health care policy is described in section 3 as being: to protect, promote and restore the physical and mental well-being of residents of Canada and to facilitate reasonable access to health services without financial or other barriers. The CHA establishes the criteria that provincial and territorial governments must meet in order to qualify for federal transfer payments. These guiding principles define the Canadian health care system, which has become the flagship of this country's social service infrastructure and our most valued social program. The celebrated five pillars of the CHA are: public administration, comprehensiveness, universality, portability and accessibility. For the purposes of this paper, we will focus on the concept of universality in terms of what it means for publicly funded health care as an ideal, as well as a practical matter. (2) Universality means that health care services are available to all, regardless of personal circumstances such as socio-economic status, citizenship, place of residence or other grounds typically covered by provincial human rights legislation and the Charter of Rights and Freedoms (Charter). Universality promotes equality among Canadians by mandating that there is to be a single-tier system for all users, which entitles hundred per cent of the insured persons of the province to the insured health services provided for by the plan on uniform terms and (s. 10). It frowns upon prospective line-jumpers and favour-seekers, by vigilantly guarding against the apartheidization of health care--the move towards a multi-tier system that segregates users based on socio-economic factors. Moreover, the requirement of universality ensures equal opportunity and reciprocity, which in turn promote national unity and social cohesion. (3) While universality holds that everyone is covered, it has never meant coverage for everything. (4) Comprehensive coverage under the CHA extends only to those services that are deemed As will be discussed, medical necessity is a contentious battleground in which citizens and government are locked in an interpretive struggle over the scope of this coverage, and the types of services deemed to be medically necessary. Disputes about medical necessity can arise when services that had previously been listed are de-listed, whether based on evidence-based analysis, physician-government negotiations designed to respond to financial constraints or the political viewpoint of the government of the day. Alternatively, they may arise when a new treatment has been developed and remains to be decided whether or not its claim for recognition is warranted. (5) This paper will not directly address problems of whether waiting lists or the conditions attached to coverage of a particular treatment frustrate the goal of universality. (6) It will focus on the circumstances when an individual may challenge an outright refusal of coverage by the Ontario government. While governments express concern that individual challenges to the government's exercise of discretion represent a threat to the viability of medicare as we know it, (7) individuals who feel they are not receiving the health care to which they are entitled are highly motivated to attempt to widen the reach of the public system. Because they are the ones who suffer if their needs are not being met, they can legitimately claim to better reflect the changing needs of society and evolving approaches to health care and wellness. They must, of course, be prepared for the eventuality that the treatment for which they are seeking coverage is ultimately found not to be medically necessary. This paper will provide an overview of recent jurisprudence exploring the meaning of universality and medical necessity in today's dualistic reality of fiscal responsibility and cost-cutting on the one hand, and the expansion of health services into innovative and non-traditional directions on the other. …

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