The uncertain state of the law regarding health care and section 15 of the charter.

Introduction Access to a system of universal, publicly funded health care is often described as a fundamental value for Canadians. Indeed, in its recent report, the Romanow Commission on the Future of Health Care in Canada stated Canadians believe access to necessary health care services is a right of citizenship. (1) As medical sciences advance and public expectations for health care services grow, governments will undoubtedly face demands to fund an increasing array of services. However, public resources for health care are finite, so it is inevitable governments will not fund all conceivable treatments or therapies, even if those services may offer some benefit to some people. Individuals or groups who feel aggrieved by a government's refusal to fund specific health care services may turn to section 15 of the Canadian Charter of Rights and Freedoms (2) (the Charter) to challenge the government's decision. In such cases, the claimant argues the government has failed to fund a service that is necessary for him or her and this failure amounts to discrimination, usually on the basis of disability. Such claims involve the application of evolving s. 15 jurisprudence in a policy context--health care--marked by almost constant debate, often about issues of resource allocation and fiscal sustainability. As a result, these cases provide rich fodder for debate on many intersecting issues of constitutional law and health care policy. This paper focuses on two elements that bring uncertainty into s. 15 cases in which claimants seek public funding for health care services. The first element of uncertainty arises from the lack of clarity regarding the term medically necessary, which is used in the Canada Health Act (3) (the CHA) and in provincial health care insurance legislation to describe the services to which Canadians are entitled through the public health care system. In essence, s. 15 litigation about access to health care begins with an argument between the claimant and the government about whether a service is necessary. After a court considers whether a service can be considered necessary for persons in the position of the claimant, the question is whether denial of public funding for that service constitutes discrimination contrary to s. 15(1) of the Charter. The second element of uncertainty is found within the s. 15(1) analysis itself; namely, the focus on human dignity as the core interest protected by Charter equality rights. As with the concept of medical necessity, the notion of human dignity is ambiguous. While general attributes of both concepts can be articulated, precise definitions are impossible. In s. 15 challenges to government resource allocation decisions in health care, these two vague notions come into play, resulting in the difficult challenge of determining when a government's decision not to fund a particular health care service violates human dignity and therefore amounts to discrimination. The s. 15(1) analysis involves questions that precede an examination of whether impugned governmental action infringes dignity. Before considering the impact of governmental action on human dignity, courts must first determine whether the claimant is treated differently from others and whether the differential treatment is based on a ground enumerated in s. 15(1) or an analogous ground. While acknowledging the importance of these two questions in the discrimination analysis, I focus on the dignity aspect for the primary reason that it is likely to be the most difficult to address since dignity is such a malleable notion. In many cases, though certainly not all, it may be relatively clear that a claimant is treated differently from others because of an enumerated or analogous ground. However, the challenge will arise in deciding if that differential treatment is an affront to dignity and therefore constitutes discrimination. …

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