Health Reform and the Courts

Quebec City
Quebec City, Quebec: is this where a revolution in Canadian healthcare began?

The ‘perfect storm’ as the Canadian Medical Association (CMA) so wisely observed, gathers strength, most recently with the endorsement of private health insurance. Health system leadership and politicians have let the system fail on their watch; we face disrepair, and the risk of catastrophic failure.Canada’s relatively unique position, with a front window view of the US health system, has dulled our creative thinking and we have fallen into a false complacency, deaf to the cacophony of reform happening in other parts of the world.  Perhaps, they were paralyzed by the fear of creating a US-style health system.  But times change.

There are two lessons from the Supreme Court’s ruling on Chaoulli v Quebec.  The first is the failure of expert testimony to the Court to provide any evidence from any other health system in the world (!) that private health insurance should be avoided at all costs.  World renowned expertise failed to provide the evidence that health systems with private health insurance were to be avoided: just tell that to the Dutch, the French, the Germans, just about anyone else for that matter.  But perhaps not the Norwegians, who have a 100% publicly funded health system, and the longest waiting lists in Europe, so long in fact that they have a so-called ‘patient bridge’ programme to fly patients to Germany for treatment.

The second is that government policy can be tested against the Charter.  To paraphrase Richard Titmus, the sociologist and political theorist, a health system is a poor one when it fails to meet the needs of all.  The collectivist rhetoric that has characterized much health debate in Canada, and is a broad theme running through the Romanov work for example, conceals an important shift in contemporary values which has not been fully grasped in Canada.  Perhaps until now, that is.

Other countries have had to come to grips with changing public thinking and are making the movement, albeit slowly, and not always happily, to a new interpretation of the social contract: namely, that governments have no pre-emptive right to deprive individuals of their constitutional rights just to achieve collective social objectives, such as Medicare, and, perhaps more subtly, governments have no right to create monopoly suppliers of public services that manifestly fail to meet the needs of the public.  So services that are underfunded, underbuilt, but publicly funded or delivered are no longer defensible simply because they are public!  Therefore, governments have a new problem, concealed within this Supreme Court decision, that of learning how to provide services that the public will value and use.  It is no longer sufficient to argue that the proper role of the state is to provide public services, if they cannot do it well.

I’d like to think that this new world would be liberating for governments, but perhaps they like to meddle and tinker rather than provide strong leadership and direction, and importantly social purpose to public service institutions, like health care for example.  As was said it seems so long ago, by Osborne and Gaebler in their book Reinventing Government, governments should steer and not row. Put more elegantly by Mario Cuomo, former governor of New York: “it is not government’s obligation to provide services, but to see that they’re provided”.

The debate over private health insurance must not conceal the real problem, that the public purse is financing at federal and provincial levels, health systems in the various provinces that are manifestly failing to deliver value for money, or indeed a service Canadians will value and use.

Where can we look for some ideas?  Often a source of inspiration in welfare state reform, the United Kingdom has embarked on changes that will virtually reinvent the public service ethos there.  Under the banner of ‘consumer choice’, they are reinventing their National Health Service by giving consumers choices in how, when and from whom they receive public services, largely putting to rest the many tired arguments about whether patients cannot exercise informed choice in health care.  One consequence of this is greater private and voluntary sector involvement in service provision. In health care, the shift is virtually seismic, with the dismantling of the NHS as a ‘provider driven service’, characterized by services dictated by what the hospitals and other care providers can or want to do when and how they want to do.  The new ‘patient-led” NHS is focused on buying (what the British call ‘commissioning’) those services, responsible for doing what Cuomo says: ensuring that the health services that are provided are timely, convenient, and to high standards.  We in Canada have a lot to learn from this, as we try to avoid consumer demand, or protect acute care hospitals from the primary care revolution.

Governments can only tax with the will of the people, and when taxes produce substandard levels of service, inconvenience and delay, the public is right to call the government of the day to account.  Increases in taxes cannot be justified unless there is demonstrable improvement in service, and increased value for money. The UK is exploring this new territory, and rethinking in particular how its health service will work.  Funnily enough, much of the impetus for this also came from rulings of the European Court of Justice.  What they have learned, though, is that the government has no moral right to be a monopoly supplier of public services.  Choice is the hallmark of public sector reform there, and offers Canada lessons for its own restructuring.

Will an emphasis on private health insurance be the solution?  To adopt the position that private health insurance is the solution to a failing public system is to abandon the principles that are the logic of an effective system of health care. But countries which have wide-spread use of private insurance, such as Netherlands, Germany or France, also have integrated principles of private insurance into their national health system.  Interestingly enough, these countries also show the value in putting money into the hands of patients and consumers to reinforce the value of their health care decision-making  The private insurance market in the UK is an opt-out from the national system, not a complement to it, and as the reform of the NHS has quickened, the private health market has shrunk.  Other countries have had more success with mixed insurance models and do not appear to have fallen apart or suffered from widespread social inequality, indeed, the WHO rankings would suggest the opposite, with Canada ranked well down after France, Spain, and Italy.

The best direction for new thinking, therefore, is to look for reforming ideas which endorse greater consumer choice, greater consumer purchasing power whether through private insurance or through commissioning reform.  But purchasing choices require greater flexibility in how health services are delivered and this debate is, as Senator Rigby as observed, full of mythology.In the end we need a fully integrated public/private health system.

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