September 9, 2015
Alberta Court of Appeal upholds government monopoly over health care
CALGARY: The Justice Centre for Constitutional Freedoms (JCCF) responded today to the Alberta Court of Appeal’s decision in Allen v. Alberta, a constitutional challenge to the government’s health care monopoly and its painful waiting lists. The Court was unanimous in rejecting the Charter challenge of Darcy Allen, who argued that access to a waiting list is not access to health care.
“The Alberta courts have failed to apply the Supreme Court of Canada precedent in Chaoulli v. Quebec, in which the Court ruled that access to a waiting list is not access to health care,” stated John Carpay, Darcy Allen’s lawyer and President of the JCCF.
“The Court ignored the evidence that many patients in Alberta are on waiting lists for surgery, and many of those patients, like Darcy Allen, suffer severe pain for years. This evidence was substantially similar to the evidence before the Supreme Court of Canada in the Chaoulli decision, which struck down Quebec’s ban on private health insurance. Further, the Alberta law challenged by Darcy Allen is almost identical to the Quebec law struck down in Chaoulli,” continued Carpay.
Dr. Darcy Allen practiced as a dentist in Okotoks, Alberta, until severe and continuous back pain forced him to stop working. Dr. Allen suffered in pain for years on waiting lists in the government’s health care monopoly until he finally added another mortgage to his house to pay for the medically necessary surgery in Montana.
Dr. Allen seeks to extend to Alberta the 2005 decision of the Supreme Court of Canada in Chaoulli v. Quebec, which held that “access to a waiting list is not access to health care.” In Chaoulli, the Supreme Court noted that painful and sometimes deadly waiting lists for patients, in combination with laws that effectively prohibit access to basic medical services outside the government’s monopoly, violate the Charter rights to life and security of the person.
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Background on Allen v. Alberta
Publicly-filed Court documents pertaining to this case are posted at www.jccf.ca.
In 2005, the Supreme Court of Canada ruled in Chaoulli v. Quebec that Quebec’s ban on private health insurance violates the right to “life, liberty and security of the person” set out in the Canadian Charter of Rights and Freedoms. Declaring that “access to a waiting list is not access to health care,” a majority of the Court held that the ban on private health insurance – which causes Canadians to suffer and die on waiting lists – is neither necessary nor justified. The Court’s minority justified the ban on private health insurances as necessary to preserve the government health care system.
Thousands of Canadians suffer in pain while waiting for surgery or diagnosis. Some die. The Chaoulli judgment explained how, in this context, confining patients to waiting lists for public health by prohibiting private health insurance violates the right to life, liberty and security of the person.
Extending the Chaoulli judgment to Alberta would be a significant stride in securing the right to life, liberty and security of the person for all Canadians.
Dr. Darcy Allen was forced to stop practising dentistry due to debilitating back pain. What began in 2007 as a seemingly minor hockey injury gradually turned his life into a nightmare of around-the-clock pain. Normal tasks, like shovelling snow or tying shoelaces, became impossible. On one occasion, Dr. Allen watched helplessly as his one-year-old daughter, while crawling on a bed, lost her balance and fell off, and he could not move to catch her.
Dr. Allen suffered moderate but increasing pain for eight months (January to September 2008), then severe pain for eight months (October 2008 to May 2009) before obtaining a doctor’s formal recommendation for surgery. He finally received a referral for surgery in 2009, but no surgery could be performed until September, 2010 – a date later pushed back to June, 2011.
Specifically, Dr. Allen waited four months in a state of severe pain before obtaining the requisite discogram (which would have been a twelve-month wait but for the intervention Dr. Allen directly sought and received of the Office of Alberta’s Minister of Health). Dr. Allen was then scheduled to wait a further twelve months for surgery. Four months into his twelve-month wait for surgery, in December 2009, Dr. Allen was told he would need to wait a further eighteen months for surgery. Had Dr. Allen not paid for his own surgery in December of 2009, the total time he would have needed to wait in a state of severe and continuous pain before receiving surgery would have been almost three years.
Unable to work or enjoy life, and unwilling to face another 18 months of severe, constant and debilitating pain, Dr. Allen paid $77,503 out of pocket to receive back surgery in Montana in December 2009. The surgery immediately and significantly reduced his pain and started his slow journey back to better health.