The Boundaries of Medicare: Public Health Care beyond the Canada Health Act 9780228016335

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T h e B o u n da r ie s of Medi care

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M c Gill-Queen’s/Associated Medical Services Studies in the History of Medicine, Health, and Society Series editors: J.T.H. Connor and Erika Dyck This series presents books in the history of medicine, health studies, and social policy, exploring interactions between the institutions, ideas, and practices of medicine and those of society as a whole. To begin to understand these complex relationships and their history is a vital step to ensuring the protection of a fundamental human right: the right to health. Volumes in this series have received financial support to assist ­publication from Associated Medical Services, Inc. (A MS), a Canadian charitable organization with an impressive history as a catalyst for change in Canadian healthcare. For eighty years, A MS has had a profound impact through its support of the history of medicine and the education of ­healthcare professionals, and by making strategic investments to address critical issues in our healthcare system. AMS has funded eight chairs in the history of medicine across Canada, is a primary sponsor of many of the country’s history of medicine and nursing organizations, and offers fellowships and grants through the AM S History of Medicine and Healthcare Program (www.amshealthcare.ca). 51 Strange Trips Science, Culture, and the Regulation of Drugs Lucas Richert 52 A New Field in Mind A History of Interdisciplinarity in the Early Brain Sciences Frank W. Stahnisch 53 An Ambulance on Safari The ANC and the Making of a Health Department in Exile Melissa Diane Armstrong 54 Challenging Choices Canada’s Population Control in the 1970s Erika Dyck and Maureen Lux 55 Foreign Practices Immigrant Doctors and the History of Canadian Medicare Sasha Mullally and David Wright 56 Ethnopsychiatry Henri F. Ellenberger Edited by Emmanuel Delille Translated by Jonathan Kaplansky

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57 In the Public Good Eugenics and Law in Ontario C. Elizabeth Koester 58 Transforming Medical Education Historical Case Studies of Teaching, Learning, and Belonging in Medicine Edited by Delia Gavrus and Susan Lamb 59 Patterns of Plague Changing Ideas about Plague in England and France, 1 ­ 348–1750 Lori Jones 60 The Smile Gap A History of Oral Health and Social Inequality Catherine Carstairs 61 The Boundaries of Medicare Public Health Care beyond the Canada Health Act Katherine Fierlbeck and Gregory P. Marchildon

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The Boundaries of Medicare Public Health Care beyond the Canada Health Act

K at h e r i n e F ier lb ec k and

G r e g o ry P. M a rc hildon

McGill-Queen’s University Press Montreal & Kingston • London • Chicago

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©  McGill-Queen’s University Press 2023 ISB N ISB N ISB N ISB N

978-0-2280-1631-1 (cloth) 978-0-2280-1632-8 (paper) 978-0-2280-1633-5 (eP DF ) 978-0-2280-1634-2 (ePUB )

Legal deposit first quarter 2023 Bibliothèque nationale du Québec Printed in Canada on acid-free paper that is 100% ancient forest free (100% post-consumer recycled), processed chlorine free This book has been published with the help of a grant from the Canadian Federation for the Humanities and Social Sciences, through the Awards to Scholarly Publications Program, using funds provided by the Social Sciences and Humanities Research Council of Canada. Funding has also been provided by the Healthy Populations Institute at Dalhousie University.

We acknowledge the support of the Canada Council for the Arts. Nous remercions le Conseil des arts du Canada de son soutien. Library and Archives Canada Cataloguing in Publication Title: The boundaries of medicare: public health care beyond the Canada Health Act / Katherine Fierlbeck, Gregory Marchildon. Names: Fierlbeck, Katherine, author. | Marchildon, Gregory P., 1956- author. Series: McGill-Queen’s/Associated Medical Services (Hannah Institute) studies in the history of medicine, health, and society; 61. Description: Series statement: McGill-Queen’s/Associated Medical Services (Hannah Institute) studies in the history of medicine, health, and society; 61 | Includes b ­ ibliographical references and index. Identifiers: Canadiana (print) 20220426732 | Canadiana (ebook) 20220426740 | ISB N 9780228016311 (cloth) | IS BN 9780228016328 (paper) | ISB N 9780228016335 (eP DF ) | IS BN 9780228016342 (eP U B ) Subjects: L CS H: Health services accessibility—Canada. | L C SH : Medical care—Canada. Classification: L CC RA395.C3 F526 2023 | DD C 362.10971—dc23 This book was typeset by Marquis Interscript in 10.5/13 Sabon.

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Contents



Figures and Tables  vii

Abbreviations ix  1 Introduction  3   2 Workers’ Compensation  19   3 The Canadian Armed Forces and Veterans  42   4 Federal Correctional Institutions  56  5 Migrants  77   6 Indigenous Health Care  102   7 Virtual Care  120  8 Conclusion  133

Appendix A: The Canada Health Act 141



Appendix B: Federal, Provincial, and Territorial Legislation Pertaining to Medicare  159

References 163 Index 187

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Figures and Tables

F ig u r es 1.1 The three dimensions of universal health coverage  4 2.1 Provision and financing of health services under workers’ compensation programs  29 3.1 Canadian Armed Forces health services and coverage  43 3.2 Veterans’ health services and coverage  51 4.1 Health services provided under Correctional Service Canada 62 5.1 Provision and financing of health services for migrant workers 82 5.2 Provision and financing of health services for humanitarian migrants 95 6.1 Provision and financing of Indigenous health care  104

Tables 1.1 Five funding criteria or principles of the Canada Health Act 6 2.1 Workers’ compensation: key indicators, 2020  24 2.2 Workers’ compensation legislation by jurisdiction  33 5.1 Temporary Foreign Worker Program work permit holders by province/territory of intended destination, 2021  80 6.1 Indigenous health systems with responsibility for insured ­services under the Canada Health Act 115

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Abbreviations

aw c b c Association of Workers’ Compensation Boards of Canada c a f Canadian Armed Forces c b sa Canadian Border Services Agency ccc Community Correctional Centre ccra Corrections and Conditional Release Act c d Commissioner’s Directive c ha Canada Health Act c ihi Canadian Institutes of Health Information c ma Canadian Medical Association c ov id-19 Coronavirus Disease 2019 c r f Community Residential Facility c sc Correctional Service Canada dc o Designated Countries of Origin dn d Department of National Defence esdc Employment and Social Development Canada fpt Federal, Provincial, and Territorial HC P Health Care Provider hsg Health Services Group (Canadian Armed Forces) ifhb Interim Federal Health Benefits ihs Indian Health Services irc c Immigration, Refugees, and Citizenship Canada lmia Labour Market Impact Assessment ma id Medical Assistance in Dying n a fta North American Free Trade Agreement n ihb Non-Insured Health Benefits oc i Office of the Correctional Investigator ohip Ontario Health Insurance Program

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x Abbreviations

pt ptsd qr &d r a mq rc mp saw p tfwp trc UN wc WHO

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Provincial and Territorial Post-Traumatic Stress Disorder Queen’s Regulations and Orders Régie de l’assurance maladie du Québec Royal Canadian Mounted Police Seasonal Agricultural Workers Program Temporary Foreign Worker Program Truth and Reconciliation Commission United Nations Workers’ Compensation World Health Organization

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T h e B o u n d a r ie s of Medi care

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1 Introduction

1 . 1 C a n a da’ s Other Medi care Sys tems The way Medicare is usually framed in Canada is that it includes everyone. This is the concept of universal health coverage as we have come to know it. By definition, universal means that no one is excluded, and Medicare does in fact include almost everyone. However, the federal legislation governing which services must be delivered on a universal basis – the Canada Health Act (ch a) – also determines who receives these services. These so-called “access rules” concerning who is included, and what services are included, are critical to the administration of Medicare. They establish the boundaries of Medicare in Canada. This book is a close examination of those populations or services that have been – and continue to be – excluded from the cha because of specific access rules that were put into place for a variety of reasons. The populations excluded by the c h a include members of the Canadian Armed Forces, prisoners in correctional facilities run by the federal government, workers’ compensation beneficiaries who are injured or become ill in their workplaces, and migrants to Canada who are not legally resident in any province or territory. In all these cases, a separate health system exists with its own access rules, financing, and provider arrangements. In contrast, while the Canada Health Act does not exclude First Nations and Inuit, separate systems of health services and insurance coverage nonetheless exist for them. These other systems and their relationship with Medicare, not surprisingly, are confusing to patients, providers, health care administrators, and policy decision-makers. Consequently, we also address the

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The Boundaries of Medicare

Costs: what proportion of costs are covered?

Services: what health services are covered? Population: who is covered? Figure 1.1  The three dimensions of universal health coverage Source: Derived from Marchildon 2014.

evolution of these separate health systems and the way in which they are woven (or not) into the fabric of Medicare. The theoretical framework of this book rests in “decision space analysis,” which assesses the choices available to decision-makers ­operating at various levels of governments – local, regional, national – where responsibility and authority are nested within a multilevel ­governance system (see, e.g., Bossert 1998; Roman et al. 2017; Marchildon 2021). A key aspect of this framework is the set of “access rules” that govern patient access to services within or outside of the base universal health care package. Access rules for universal health coverage have three critical dimensions (Marchildon 2014). As can be seen in figure 1.1, these are (1) the scope of coverage, or the included population; (2) the breadth of coverage, or which services are included; and, finally, (3) the depth of coverage, or the extent to which the cost of the health service is not paid by the patient when receiving it. All three dimensions of these access rules are addressed in the Canada Health Act. While the first access rule (on the scope of coverage) is responsible for many of the health systems that straddle Medicare, the access rules on the breadth and depth of coverage also come into play. The reason that Medicare is limited to hospital care, diagnostic services, and outpatient medical care – and not, for example, extended to outpatient prescription drug therapies, home care, or long-term care – is the access

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Introduction

5

rules set out in the cha. And the reason that Canadians are not charged a fee by hospitals or extra-billed by physicians (at least in most cases) is yet another access rule. For this reason, we address the challenges raised by the narrowness of Medicare and the existence of a federal program of “extended benefits” for eligible First Nations individuals and Inuit. In addition, the advent of virtual care in Canada – ­accelerated by the c ov i d-19 pandemic – raises important questions concerning the access rules. These challenges forced us to revisit the access rules relating to the breadth and depth of coverage in the ch a. Of course, the cha does not stand alone. It is a law that speaks to provincial governments, which are constitutionally responsible for the delivery of Medicare services in Canada. These provincial governments and their territorial counterparts have built their publicly funded health systems in different ways. The cha, supported by federal spending transfers, is the glue that fastens together thirteen distinct provincial and territorial health systems into a discernable entity often referred to as “the Canadian health care system.” The beauty of the cha lies in its simplicity: in exchange for a certain level of federal funding, provincial and territorial governments agree to accept the access rules in the Act, including the five key principles that inform the funding and delivery of health care within their respective jurisdictions. These five principles, formally known as “funding criteria” (see table 1.1), provide a coherent structure to Canadian health care despite divergence across jurisdictions in the provision of health care services. Each province and territory has full authority to withdraw unilaterally from these federal health spending arrangements, and to reject the terms of the c h a, should it choose to do so. Notwithstanding considerable rhetoric addressing the s­ hortcomings of the c h a , federal financial incentives combined with widespread popular support for the principle of universal publicly insured health care mean that the cha continues to define the p ­ arameters of Medicare in Canada, including the existence and development of the boundary services examined in this book. To many Canadians, the separate health care systems that serve populations excluded from the cha are largely invisible and unfamiliar. As the following chapters document, some of these systems are so little-known that neither those eligible for these services nor those providing them understand how these systems work, or what the eligibility criteria for these services and extended benefits are. This lack of familiarity leads to two major problems. First, some of these

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Table 1.1 Five funding criteria or principles of the Canada Health Act Criterion Public Administration Section 8 Comprehensiveness Section 9

Universality Section 10 Portability Section 11

Accessibility Section 12

Each provincial Medicare plan must: Be administered and operated on a non-profit basis by a public authority Cover all insured health services provided by ­hospitals, physicians, or dentists (surgical dental ­services that require a hospital setting) and, where the law of a ­province ­permits, similar or additional ­services ­rendered by other health care practitioners Ensure entitlement to all insured health services on ­uniform terms and conditions Not impose a minimum period of residence, or waiting period, in excess of 3 months for new residents; pay for insured health services for its own residents if they are temporarily visiting another province (or ­country in the case of non-elective services) with reimbursement paid at the home rate of province or territory; and cover the waiting period for those ­residents moving to another province, after which their new province of ­residence assumes responsibility for health care coverage Not impede or preclude, either directly or indirectly, whether by charges made to insured persons or ­otherwise, reasonable access to insured health services

Source: Marchildon, Allin, and Merkur 2021, 22.

programs address the needs of more vulnerable and marginalized populations (refugees, migrant workers, prisoners, Indigenous peoples) who might otherwise be deprived of essential Medicare services. Given the often complex and complicated nature of these programs, many potential beneficiaries may not be accessing services that are specifically designed for them. And when they attempt to do so, they may be refused treatment because health care providers do not themselves understand how these Medicare-straddling health systems operate. Second, Medicare and Medicare-straddling health systems are tightly intertwined with the non-Medicare health services and ­programs publicly funded or subsidized by provincial and territorial (p t ) ­governments. These services constitute a mixed layer of public and private coverage, with pt programs and services often targeting those populations with limited or no access to private health insurance and benefits through employment (Martin et al. 2018). The interdependence of these mixed services and programs with pt Medicare services

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7

and programs is not well understood. It is not uncommon for these programs to be described as running separately from or “parallel to” pt systems of health care, but, as the following chapters explain, the reality is much more complicated. While the c h a itself only dates to 1984, it is a composite of two older pieces of federal legislation, the 1957 Hospital Insurance and Diagnostic Services Act and the 1966 Medical Care Act. Thus, many of the provisions of the c ha are in fact drawn from these earlier pieces of legislation. Most of the health systems discussed in this book evolved well before the emergence of Medicare in Canada: for example, ­workers’ compensation (which was introduced before World War I) or medical care for inmates in federal jails (which originated with the establishment of the Kingston Penitentiary in 1835). Federal health care programs for armed forces personnel and members of the Royal Canadian Mounted Police (until 2012) also pre-date the ch a. These pre-existing health systems were thus “carved out” of the ch a when it was enacted in 1984. Similarly, the Interim Federal Health Benefits program for refugees was established in 1957, while the first manifestation of the Temporary Foreign Worker Program (focusing on two  groups who are not legal residents of a province based on the c h a’s definition of an “insured person”) goes back to 1966. Nonetheless, each of these health systems, to varying degrees and under different conditions, currently utilizes services provided by the p t Medicare systems. Each of these programs thus constitutes a reticulated policy “ecosystem” interwoven with the larger ch a framework. To the extent that pressures on provincial health care services have meant increasing political pressure to reform the ch a, we must understand the connections between the c ha and these separate but nonetheless boundary-spanning health systems, as any move to reform one aspect will have an impact on the other. The objective of this book is to deepen our understanding of how these Medicare-straddling health systems work. Why were they set up in the first place? Who is eligible for what, and under which conditions? How are services provided, and how are they paid for? Were they ever intended to be part of Medicare or were they expected to remain separate health systems permanently? To answer these questions, we provide a clear explanation of the internal logic of each Medicare-straddling system, so that patients, providers, administrators, policy decision-makers, and scholars have a more solid grasp of the way in which they are configured.

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The discussion of each of these programs also addresses the more complicated interface with the broader pt health care systems, including the perplexing problem of providing national programs that are dependent on provincial health services. In the case of military ­members, veterans, Indigenous Canadians, and inmates serving time in federal jails, we must also examine federal programs that either ­substitute for c h a coverage or provide coverage, programs, and services that complement universal health coverage as defined under the c ha and the p t health systems. We hope that the information presented in this book will make this area more accessible and allow others a starting point for more rigorous theoretical inquiry into the nature of Canada’s health system as one of the country’s few universal social programs and as part of the foundation of the Canadian welfare state (Béland et al. 2020; Marchildon 2019).

1 . 2 T h e Canada Health Act a n d t h e O r ig in a l “ Carve-Outs ” The c h a is a piece of federal legislation that is supported by the Canada Health Transfer, which, in 2022–23, amounted to over $45 billion (Finance Canada 2022). In exchange for upholding the five ­criteria of the Canada Health Act, and for not permitting hospitals or outpatient clinics to impose user charges on patients and not allowing physicians to extra-bill their patients for insured services, each ­province and territory receives a per capita share of the Canada Health Transfer. In 2019–20, this amounted to roughly 23.4 per cent of total provincial and territorial (p t ) spending on health care (­including services that are defined as “non-insured” under the Canada Health Act), although this varied considerably across provinces. This share shoots up to 32 per cent if limited to the insured services ­considered under the c h a (pbo 2020), and even more if the federal government’s permanent tax point contribution to the provinces back in 1976–77 is added back in (Naylor et al. 2020). While the c h a itself has not seen major revisions since its implementation, several letters prepared by federal Health ministers and sent publicly to contemporaneous pt Health ministers have provided additional interpretive detail. These letters were crafted to clarify the Government of Canada’s interpretation of the governance criteria underlying the c ha , including access rules, and the federal government’s expectations of the p t governments. The 1984 Epp letter

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9

reinforced the prohibition of patient charges on insured services for insured persons. The 1994 Marleau letter specified that provincial governments were required to cover facility fees set by private clinics if their insurance plans paid the physician fees in these clinics. The 2018 Petipas Taylor letter emphasized that all medically necessary diagnostic services were to be considered “insured services” under the terms of the c h a . This letter set out a reimbursement policy providing the federal minister of Health the discretion to reimburse pt deductions should any jurisdiction eliminate the patient charges that had triggered these deductions, and it strengthened the reporting of information necessary to assess cha compliance (Health Canada 2021). The intent of the c ha is to ensure reasonable and fair access to a comprehensive set of hospital, diagnostic, and medical care services for all eligible residents of Canada. But health care is provided to eligible residents of Canada above and beyond the insured services in the c h a . In some cases, the c h a makes clear reference to these groups; in others, it does not. The “hard core” of the cha carve-outs is actually set out in ­section 2 of the c h a , in the definition of key terms (see appendix A). The first mention of those excluded from the ch a is within the definition of “insured health service,” which, the cha notes, “does not include any health services that a person is entitled to and eligible for under any Act of Parliament or under any Act of the legislature of a province that relates to workers’ or workmen’s compensation.” The origins of the contemporary workers’ compensation system in Canada can be traced to the 1913 Meredith Report in Ontario. The administration of workers’ compensation (wc ) is under provincial jurisdiction, and thus differs across regions. wc was excluded from the ch a as it was well-established before the advent of Medicare in Canada. While it is funded entirely by employers and is governed by quasi-autonomous not-for-profit agencies in each province, workers’ compensation is ­considered a public institution as it provides social benefits and is regulated by provincial statute. While workers’ compensation has been viewed as being “parallel to” pt health care systems, it is in fact highly dependent upon the provision of these public health care ­services. Physician services, hospital services, and other associated c­linical ­services (diagnostic services, drugs and devices, and rehabilitation services) provided under the auspices of workers’ compensation are generally billed directly to p t workers’ compensation agencies.

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As chapter 2 explains, however, health care budget cuts by pt governments in the mid-1990s meant that w c boards looked to private health care providers to ensure timely treatment of workers’ injuries. This led to the politicization of health care services funded by workers’ compensation, as the quick treatment for workers in private facilities contrasted poorly with the long waits for non-workers with similar conditions in the public health system. This, in turn, has resulted in calls to absorb wc into the public health system so that these perceived inequities can be eliminated (Romanow 2002). However, as chapter 2 argues, if this were to happen without adequate reform and ­improvement to pt Medicare systems, long delays in treatment could ­undermine the “historical compromise” that underlies Canada’s system of workers’ compensation, with disadvantageous outcomes for both employees and employers. The next reference to excluded groups can be found in the definition of “insured person” within the c h a . Under the terms of the c h a , “insured person” means “a resident of the province other than”: (a) a member of the Canadian Armed Forces; (b) a member of the Royal Canadian Mounted Police, an exception that was repealed in 2012; (c) a person serving a term of imprisonment of two or more years; or (d) an individual who has not yet completed the minimum waiting period of three months or less, as required by the province, for Medicare eligibility. The separate system of health care for members of the Canadian Armed Forces has deep roots in Canada’s colonial past. Throughout the eighteenth century, and often well into the nineteenth, public funds were generally directed only to the establishment of military hospitals; ordinary citizens were treated at home by private physicians or within charitable hospitals, usually run by religious orders. After Confederation, a domestic militia was created with its own medical care service. Given the massive mobilization of military personnel in the first half of the twentieth century, an infrastructure of primary and acute health care institutions became established well before the advent of publicly insured health care in Canada. By the late twentieth century, due to the expansion of public health care and the contraction of the armed forces in Canada, most military hospitals had closed. “In-garrison” care outside of conflict zones now consists mainly of primary care as well as dental and some rehabilitation services. Excepting medical care pertaining to deployment, the remaining health services for military personnel are provided by p t institutions

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(although billed to the federal Department of National Defence [dnd] via a discrete set of billing codes). This, as chapter 3 describes, has led to friction between dnd and some provincial governments regarding whether d n d should be paying the rate for provincially insured ­services, or the (higher) rate for services provided to non-insured parties, a dilemma that is parallel to the situation with wc described above. Until June 2012, exclusions to “insured persons” included serving members of the Royal Canadian Mounted Police (r c m p ). The Conservative government of Stephen Harper then introduced the omnibus Bill C-38 (the Jobs, Growth, and Long-term Prosperity Act), which amended the c ha to repeal the exclusion of the rcm p, among other measures. This meant that 19,000 regular members of the rcmp became eligible for coverage under p t systems, downloading those health care costs to the provinces. Public Safety Canada noted that (as with military personnel) many provincial governments had been charging fees at a rate higher than the Medicare fee schedule for health services billed to the rc m p. By removing the exclusion of the rc m p from the list of insured persons within the c h a , the same services would be provided to rcmp personnel, but Ottawa would be saving $25 ­million in “­needless administrative costs” (Harris 2012). However, by virtue of being federal employees, members of the rc mp can, like members of the Canadian Armed Forces, take advantage of the Public Service Health Care Plan, a supplemental health insurance plan for the federal public service. Another group excluded from the category of insured persons under the c ha is those serving a term of imprisonment in a federal penitentiary, which is restricted to individuals sentenced for two or more years. Those serving sentences of less than two years (including remand) are sent to provincial correctional facilities and remain under the purview of the c ha . However, in half of Canada’s provinces, the provision of health care for prisoners in provincial correctional facilities falls directly under the auspices of provincial ministries of Justice, while, in the other half, it is the direct responsibility of provincial health authorities. In federal penitentiaries, in contrast, health care provision is governed by the 1992 Corrections and Conditional Release Act, which mandates Correctional Service Canada to provide essential health care services “in conformity with professionally accepted standards,” as well as “reasonable access” to non-essential care. But because the health care needs of federal inmates are usually higher than those of the general population, and because they exist in tandem with the requirement to maintain security, there is some contention over the adequacy of these

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health care services. Chapter 4 investigates these tensions in more detail, including not only the degree to which health care in federal correctional facilities meets the same standards of care observed in provincial Medicare systems, but also the issues that arise in attempting to integrate care for those moving from prison into the community. The final category of individuals excluded from the cha’s definition of “insured persons” is slightly more obscure. This category includes any resident who “has not completed such minimum period of ­residence or waiting period, not exceeding three months, as may be required by the province for eligibility for or entitlement to insured health services.” It generally refers to non-Canadians entering the country, as insured persons who relocate from one province to another remain insured persons under the cha, since they are insured during any waiting period by the province or territory in which they were formerly resident. Chapter 5 discusses the health coverage arrangements set up for non-Canadians coming to Canada from abroad. Because there are so many different categories of these migrants, the Medicare-straddling system for this group is quite complicated. Chapter 5 looks at two categories of migrants to explain the programs and politics in more detail. One group is temporary foreign workers. These individuals come to Canada on contract for a defined period of time, usually in low-skilled and low-paying occupations (generally agriculture, food processing, and home care), and are legally precluded from obtaining the legal status of a Canadian citizen by virtue of being classified as temporary foreign workers. The specifics of health insurance coverage depend on the program through which they are entitled to come to Canada, and these programs are also governed by the federal-pt interface on immigration policy. In general, however, those entering Canada under the auspices of the Temporary Foreign Worker Program are covered by p t Medicare programs while working in Canada. If a province has a waiting period for eligibility (normally around three months), then these workers must have private insurance until they can access the public health insurance system. They are also, from their first day of employment, covered by w c for illnesses and injuries related to employment. Health care for migrant workers thus appears reasonably comprehensive. However, as chapter 5 explains, there is a gap between the formal provision of health care for individuals in this group and their ability in practice to access it. The second category of new arrivals to Canada discussed in ­chapter 5 is that of humanitarian migrants. This group does not include

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those who apply for permanent residency status through the regular immigration process (i.e., landed immigrants), as new immigrants to Canada who arrive with permanent residency status are eligible for coverage under pt Medicare systems after any required three-month (or less) waiting period to become a resident. Rather, humanitarian migrants generally refer to resettled refugees (refugees whose claims are processed before they arrive in Canada), refugee claimants (who request refugee status upon arrival in Canada), and victims of human trafficking. As such, they face different legal requirements. Health insurance varies across each category, although, in general, the Interim Federal Health Program covers both basic health insurance (i.e., ­services similar to those provided by pt Medicare) and supplemental insurance (for limited dental, vision, and drug coverage) until they either become eligible for p t public health insurance (because they have met the waiting time requirement, or because their claim for refugee status has been accepted) or leave the country. Since health insurance for humanitarian migrants is not governed by a legislative act (as is the case, for example, with Correctional Service Canada) but rather through more ad-hoc o ­ rders-in-council issued by Cabinet (which are not subject to Parliamentary scrutiny), it is more highly politicized than other forms of non-c ha health care. As discussed in chapter 5, Stephen Harper’s Conservative government severely cut back coverage under the Interim Federal Health Program, leading to considerable political activism and even a legal challenge. Subsequently, Justin Trudeau’s Liberal government reinstituted, and even expanded upon, this program. More than other ch a carve-outs, the Interim Federal Health Program is politically precarious, depending upon the agenda of the party in power. Like the programs geared to temporary migrant workers, health insurance coverage for humanitarian migrants is limited by its administrative complexity and by the difficulties faced by eligible beneficiaries in attempting to access coverage.

1 . 3 C u r r e n t C h allenges a n d F u t u r e O p p ortuni ti es Beyond these separate Medicare-straddling health systems, there are also instances where health care coverage cannot simply be subsumed under regular pt Medicare systems. The cha may be relatively static, but the way in which “insured services” under the ch a are provided continues to change, as do the social and political contexts within

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The Boundaries of Medicare

which Medicare services and associated boundary services are ­provided. As with any health care system, the question is how well the stable governing frameworks can address the kinds of changes that arise through new technology, new health challenges (particularly infectious disease outbreaks such as aids in the 1980s, sars in the early 2000s, and the 2020s covid-19 pandemic), and wider social and political sensibilities (especially the growing acceptance of Indigenous self-governance). This book addresses all these challenges. Chapter 6 focusses on the Indigenous health care system. On its face, there is no real “system,” as Indigenous peoples are not excluded from the cha, and are entitled to the regular insured health care services of their province or territory of residence. But there is another layer of health care for Indigenous peoples beyond the ch a. Any member of a First Nation who is registered under the Indian Act, as well as any recognized Inuk, is also eligible for the federal Non-Insured Health Benefits (n i h b ) program. Moreover, First Nations, Inuit, and Métis individuals are the recipients of specific federal population health programs regardless of their formal registration status. As chapter 6 explains, the regularization of the n i h b in 1979 meant that the scope of these goods and services was more clearly set out and (like the Interim Federal Health Benefits provided to migrants) included, for the most part, a limited set of vision, dental, and pharmaceutical benefits. Because the recipients often live in remote areas, however, there is also the important inclusion of medical transportation expenses facilitating access to regular p t health care services. Like the Interim Federal Health Benefits, the nihb program was established by the federal government to mimic the coverage of supplementary health care – defined as services beyond the definition of c h a -insured services – provided by p t governments for their lower-income residents but excluding the beneficiaries of federal supplementary health benefit programs, including n i h b. As with other areas examined in this book, Indigenous health care is characterized by the “politics of between”: where health care for groups straddles both federal and pt jurisdictions, either because of a discrete layer of federal health insurance, or because federal programs depend upon the existence of services provided in the first instance by provinces or territories (which are billed directly to federal agencies), there is often a tension between jurisdictions based largely on the dynamic of who pays for what and the opportunities for cost-shifting among governments, as well as the position of Indigenous governments

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Introduction

15

and organizations concerning health care rights and entitlements conferred by treaty, land claims, and the Canadian constitution. But the politics of Indigenous health care has an added dimension, one based on the increasing emphasis on the evolution of self-­ determination. As chapter 6 points out, access to health care services for First Nations members can be difficult, as there are jurisdictional issues with establishing provincial health care facilities on reserves, which were historically considered to be federal land. Increasingly, however, First Nations (as well as Inuit) are becoming self-governing entities, and this has begun to include health care systems. While funding for cha-defined Medicare services continues to be provided by ­provinces and territories, many First Nations are playing a greater role in governing and administering health care within their jurisdictions. Health care, in this way, has grown from a system balancing the ­financing and delivery of health care services between two levels of government, to a tripartite system involving three levels of government. Finally, chapter 7 tackles another emergent trend: the provision of virtual health care services. c ov i d-19 has proven to be the window of opportunity making virtual care (via phone or it platform) widely accessible. While the technology permitting remote consultation has existed for some time, the reimbursement framework governing the provision of Medicare services stymied widespread use of virtual health care consultation. But the safety concerns arising from the spread of c ov i d-19 provided a forceful impetus for the resolution of those issues, and as chapter 7 notes, by the summer of 2020, most ambulatory care provided by doctors and hospitals was provided virtually. There is good evidence to believe that the demand for virtual care will continue. But along with the convenience of virtual care come several ­complications. One key issue is the extent to which the proliferation of private, for-profit virtual health services undermines the fundamental purpose of the cha. As the number of companies offering private services increases, those with higher incomes will have ever-greater opportunities to pay for more rapid tests or treatments. At the same time, if “reasonable access” to health services now includes virtual access, then any restrictions on these services may constitute a violation of the cha, as discussed in greater depth in chapter 7. Given that the architecture of the cha was set out well before virtual care became a reality, the question of whether patients should have access to free and universal services sourced outside of their home provinces is

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The Boundaries of Medicare

another issue to be addressed. Virtual care can, we argue, coexist within the general parameters set out by the ch a, but the evolving technologies and circumstances mean that several wrinkles will have to be worked out to ensure that the principles embedded in the ch a are respected and enforced.

1 . 4 C o n c l usi on The theme of this book is that the separate health systems that straddle Medicare need to be better understood. Although these programs are often seen as substitutes for Medicare, the reality is much more ­complicated. While most of these health care systems pre-date the c ha and were originally independent of it, the provision of health care services has become increasingly integrated in terms of service delivery even as the formal funding and governance of these systems have remained separate. Canada’s federal structure is yet another level of complexity: most of these Medicare-straddling health system are under federal authority but at least one large system, workers’ ­compensation, is under provincial authority. Still others (migrant workers) rest in areas of shared jurisdiction where the provision of health coverage and care must be negotiated. Our first task, then, is to explain the nature of these health care systems independently from the cha. Why were they set up? What kinds of internal tensions characterize each program? What external dynamics must they ­navigate? What kinds of key challenges do they face? The objective here is simply to give readers a better understanding of each of these systems on their own terms. A second and more analytical task is to understand more clearly how these separate systems coexist with the c h a . Each of the ­programs we address has a very specific and unique relationship with the c ha . In some cases, the c h a exerts a discernable influence that shapes the contours of these “independent” systems; in others, v­ arious aspects of these systems compel change to the cha itself. The ability of individuals covered by wc b to access health care services more quickly, for example, has led to calls for the inclusion of wcb within the c ha to ensure equity among recipients of health care services. The gradual incorporation of international human rights standards into Canadian correctional service legislation has served to make Medicare the de facto standard for prison services and has even led to Charter challenges insisting that penitentiary health care must be

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Introduction

17

brought within the formal parameters of the cha. For this to happen, however, the cha would have to be amended to remove any current carve-outs. It is important to be clear from the outset what this book is not about. It is not about private health care per se. Nor is this book about the mixed public and private sectors of long-term care, home care, and prescription drug coverage programs (Martin et al. 2018). The public and private funding and delivery arrangements for these ­services, which are not considered c h a-insured services, have been far more extensively examined by other commentators and scholars. Both the first and last substantive chapters of this volume recognize the challenge that private health care poses in the provision of ­not-for-profit health care outside the formal bounds of the c h a . Pressures on Medicare systems in the 1990s, for example, meant that access to private services began to be seen as a means of preserving the “­historical compromise” on which w c is grounded. More recently, the rapid appearance of widespread virtual care due to c ov id-19 facilitated better access to safe health care services, but also raised complex issues of how these services ought to be considered vis-à-vis the five governing principles of the ch a, and how the ease of accessing private for-profit virtual health services may undermine the equitable access to health care that remains the conceptual foundation of the c ha . Discussion of some of these topics (such as w c and Indigenous health) is hardly new, but the examination of the other subjects ­covered in this book has been so sparse that the research base on these topics is extremely limited. By viewing these separate but Medicare-straddling health systems in terms of their relationship to the c h a and p t Medicare systems, we hope to provide a more detailed thematic account of the kinds of health care Canadians experience outside the formal domain of the cha. In some cases (such as the discussion of health care for temporary foreign workers and for ­refugees), we hope this information may be of use both to potential recipients and to health care providers and health organization ­managers, as well as to governments and health system decisionmakers, to clarify who is entitled to what, and on what grounds. In other cases (such as the discussion of access to health care by Indigenous peoples) we hope our discussion may be useful as the broader governance relationships of Indigenous groups and f p t governments continue to evolve.

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The Boundaries of Medicare

The Canada Health Act has been one of the most important pieces of federal legislation Canada has produced. It has not only had ­considerable effect on the day-to-day lives of most Canadians, but it has also evolved into a potent symbol of national identity. Nonetheless, the c ha governs a landscape that continues to evolve rapidly and appreciably. To understand whether this legislation continues to fulfil its original intent, it is essential to understand some of the less wellknown health systems that straddle Canadian Medicare. To better understand the c ha , in other words, one must also understand the c ha’s boundaries.

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2 Workers’ Compensation

2 . 1 In t ro ducti on In 2016, Cambie Surgeries Corporation launched a Charter challenge against British Columbia’s Medicare Protection Act in order to ­provide private health care services to all who wanted them. A key weapon in their arsenal was the argument that injured workers had quick access to private medical services through British Columbia’s workers’ ­compensation program. The plaintiffs’ argument rested in section 15 of the Canadian Charter of Rights and Freedoms, which upholds the equality rights of Canadians. Given that the Medicare Protection Act prohibited access to private treatment for many bc residents, yet allowed those with workers’ compensation coverage timely access to surgical care at private clinics, they argued that the Act imposed “an unequal burden” upon many b c residents. Pointedly, they suggested that the Medicare Protection Act discriminated against those who, due to their disability or age, were ­proportionally much less likely to be covered by workers’ compensation, and therefore were denied the same kind of timely access others enjoyed (Cambie Surgeries Corporation v. British Columbia [Attorney General] 2020 b c sc  1310). While ultimately unsuccessful, the challenge did highlight the ­relationship between publicly insured health care and health care provided under the auspices of publicly mandated workers’ compensation programs. Like publicly insured health care, medical care under workers’ compensation is administered largely at the provincial and territorial (pt) level by quasi-autonomous administrative bodies. The financing of these services is mandated by p t law, and the legal

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The Boundaries of Medicare

mandate is set by each jurisdiction through legislation. Yet the health care provided through the framework of workers’ compensation is almost half a century older than Canada’s suite of thirteen pt Medicare systems. As the concept of workers’ compensation (wc) plays a unique role in Canada’s social security system, the architects of Canadian Medicare deliberately decided to retain workers’ compensation as a discrete system operating independently of the provincial universal health care systems. Indeed, workers’ compensation was expressly exempted from federal Medicare legislation because of the specific role it played in labour relations. The following section discusses the historical evolution of workers’ compensation to show why the provision of some health care services is provided under a separate system, rather than via the mainstream health care system. Subsequent sections will describe in more detail how wc systems are financed; the kinds of services they provide; their regulatory bases and governance structures; and – as the Cambie case highlights – some of the current challenges facing the provision of health care through wc programs.

2 . 2 W o r k e rs ’ C o m pensati on as a “ H is to r ic a l C ompromi se” In this section, we take you through the historical compromise that established wc in Canada. As will be seen, it was a difficult achievement with a resulting complex web of federal and provincial laws, regulations, and broader institutions that the framers of the cha (and those who wrote the federal legislation that preceded it) did not want to upset. As a consequence, the definition of “insured health services” in section 2 of the c h a expressly excludes “health services that a person is entitled to and eligible for under any other Act of Parliament or under any Act of the legislature of a province that relates to ­workers’ or workmen’s compensation” (see appendix A). The concept of a compulsory system of accident insurance in the workplace was, like mandated health insurance, the product of Otto von Bismarck’s late-nineteenth-century attempt in Germany to neutralize support for nascent socialist movements in Europe by mandating insured benefits for workers. By the beginning of the twentieth century, some form of workers’ compensation had taken hold in both Britain and the United States. The utility of the concept was driven by the clash between the rapid industrialization of Europe and North America

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Workers’ Compensation

21

and the increasingly obsolete legal systems within these countries. While the scale and complexity of factory production meant that working conditions were becoming increasingly dangerous, the liberal principle of individual responsibility assumed that workers understood and consented to these more treacherous conditions and that the level of hazard would be reflected in their wages. Employers were largely protected from liability for any job-related accident, unless it could be shown that they fully appreciated yet willfully disregarded these safety risks to workers. Moreover, any evidence that a worker’s ­behaviour contributed to the accident (e.g. by not paying due attention), or that the accident was the result of the action of a fellow worker, or that the employer was not aware of dangerous conditions would be sufficient to absolve employers of any liability for accidents occurring at their work sites (Babcock 2006). By the late nineteenth century, the rate of workplace accidents had increased dramatically, driven both by powerful new technologies and by rapid urbanization, drawing inexperienced young men from rural areas into industrial workplaces for which they had little experience or training (Stritch 2005). In 1889, Ottawa released the findings of the Royal Commission on the Relations of Labour and Capital, which noted that, while the conditions of industrial workers were reprehensible, the federal government’s capacity for political action in this area was limited due to constitutional authority over working conditions resting with provincial governments. The eventual shift towards wc in Canada at a provincial level was not driven by workers’ movements, which remained disorganized and ineffectual. Rather, support for such a system was promoted by industrial enterprises themselves. Prior to the implementation of workers’ compensation systems, the only avenue for injured workers was through common tort law, where workers would sue employers directly, an expensive process generally beyond the means of most workers. Given the limited liability of employers, injured workers in Ontario rarely were successful before 1886. The province then established the Workmen’s Compensation for Injuries Act – the first of its kind in Canada – which slightly diminished employers’ immunity. From the late 1890s on, as Risk (1983) notes, injured workers were increasingly successful in their lawsuits. Jury trials were particularly sympathetic to accident victims. And, as there were no formal limits to the awards that could be given, employers became acutely aware that even one successful lawsuit could bankrupt them (Stritch 2005).

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The Boundaries of Medicare

While the industrial sectors in Ontario and Quebec were particularly cognizant of their vulnerability on this front, the resource extraction sectors in other provinces also recognized similar susceptibility. A gas explosion killing 148 employees of Vancouver Coal and Land Co. in  1887 resulted in poor compensation for the survivors (WorkSafeBC 2021); less than twenty years later, a coal mining disaster in Bellevue, Alberta resulted in a very successful lawsuit against the mining company by the family of the survivors (Alberta Workers’ Compensation Board Review Panel 2017). Common attitudes governing employment conditions were also changing. By the beginning of the twentieth century, the working population was quite aware (as were juries composed of workers) that the doctrine of individual responsibility was obsolete and unfair, given that workers realistically had little significant opportunity to choose the terms of their work (Risk 1983). Across Canada, individual p­rovinces began to enact new mandated wc schemes, beginning with Ontario in 1914, followed by Nova Scotia (1915), British Columbia (1916), Manitoba (1916), Alberta (1918), New Brunswick (1918), Saskatchewan (1928), and Quebec (1931). Prince Edward Island enacted workers’ compensation legislation in 1949, and the new province of Newfoundland and Labrador in 1950. Yukon followed in 1973, and the Northwest Territories in 1977 (Hyatt 1995). Ontario had provided the Canadian template for w c programs through the establishment of a Royal Commission chaired by ­politician-turned-justice William Meredith. The 1913 report, and the “Meredith principles” articulated in it, became the basis of a particularly Canadian form of workers’ compensation that was eventually adopted by all jurisdictions across Canada. At the root of the Meredith system of w c is the “historical compromise”: injured ­workers ­relinquish the right to sue their employers in exchange for stable and predictable compensation. Employers fund the system through p ­ remiums, in exchange for a liability shield, fiscal predictability, and a reduction in worker militancy. As Barnetson (2010) argues, g­ overnments should also be considered part of this agreement since they made workers’ compensation compulsory, and established and regulated administrative agencies to oversee this system in exchange for reduced political strife. The five Meredith principles include c­ ollective liability (the system itself takes responsibility for injury claims), no-fault insurance (attribution of fault is not relevant), ­exclusive jurisdiction (all claims are handled by the boards, and

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Workers’ Compensation

23

cannot be pursued in courts of law), predictable and timely compensation, and arm’s-length governance. In Canada, there is some variation across jurisdictions in the scope and nature of wc programs. This includes the kinds of employers that are included, the categories of workers who are covered, premium rates, compensation rates, the medical services, the claim processes, and the types of occupational diseases that are recognized. Nonetheless, when compared to wc systems internationally, Canadian wc systems are notably coherent. Out of 136 national systems, Canada’s is one of only three systems not administered at the national level. It is also one of the few systems where the administration of the system is a public monopoly. In the US, for example (another system not ­administered at the national level), most states (as with health insurance) use either a combination of public operators in competition with private insurers, or private insurers only (Hyatt 1995). A snapshot of Canada’s workers’ compensation plans is presented in table 2.1.

2 . 3 F u n di ng One key provision of Meredith’s report was the insistence that the direct costs of a wc scheme be borne by employers. Accidents were a predictable and unavoidable cost of industrial progress: “if modern industry demands the sacrifice,” argued the leader of the Ontario Liberal opposition in 1912, “why should not industry bear the cost?” (cited in Risk 1983, 471). Unlike previous programs that were funded either by worker contributions or by a combination of employer and employee contributions, Meredith’s scheme was supported by premiums levied on the industries that participated in the program. These costs, of course, would be recouped through lower wages and higher consumer prices. While workers’ compensation plans are financed entirely by riskrated premiums imposed on employers, however, these programs are not considered to be “private” plans. Similar to social insurance schemes in many European states, the plans are mandated by statute on a not-for-profit basis. To the extent that they are publicly ­administered insurance systems set up in part to protect the well-being of workers, they can thus be considered an integral aspect of the public social security system (Healy 2007). For this reason, the Canadian Institute for Health Information (cihi) classifies the financing of wc health benefits as social security funds (ci h i 2021a).

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The Boundaries of Medicare

Table 2.1 Workers’ compensation: key indicators, 2020 Measures

CAN

NL

PE

NS

NB

QC

ON

MB

SK

AB

BC

1.68 1.49 1.20 1.57 1.27 2.08 1.14 2.55 1.90 1.66 2.14 Lost time injury frequency* 83.33 97.41 98.04 74.03 91.67 92.80 75.32 76.51 74.93 81.71 93.54 % of the workforce covered U/A 183.85 67.61 177.91 86.00 N/A N/A 35.14 65.23 108.24 94.50 Average duration (days) % funded 123.59 125.50 155.40 102.90 123.60 114.70 112.70 143.70 130.90 120.70 161.08 *per 100 workers Source: awcbc, “Canadian Workers’ Compensation System – 2020 Year at a Glance,” https://awcbc.org/en/statistics/canadian-workers-compensation-system-year-at-a-glance/.

As workers’ compensation programs are established and regulated by the provinces and territories, the industries and occupations covered by each statute vary across jurisdictions. The rates set for premiums vary similarly. In general, however, employer premiums are based on each employer’s payroll, the record of claims made against the ­company, and the claims records of employers in the same industrial category (Barnetson 2010, 107). The average employer levy is around three per cent of payroll but, again, this varies widely. The funding of workers’ compensation plans had become a political issue by the early 1990s. Between 1961 and 1993, the plans’ costs increased by over 600 per cent in real terms (3.9 per cent annually, or twice the growth rate of real productivity) despite declining rates of illness and injury (Gunderson and Hyatt 2000a, 12). One reason for this was higher administrative costs, especially as claims became more complicated and thus adversarial (Ison 1996). Another factor was the de facto commitment to inflation indexing of benefits by jurisdictions without a concomitant increase of employer assessments (Wilken 1998). In 1985, when inflation indexing was formalized (and made retroactive), the unfunded liabilities more than doubled in one year. By 1993, almost all jurisdictions had unfunded liabilities, where reserve funds remained insufficient to cover the present value of p ­ rojected expenses (Gunderson and Hyatt 2000b). The Meredith framework for workers’ compensation, when it was established, did not assume that unfunded liability was problematic:

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Workers’ Compensation

25

it was expected that provincial economies would fluctuate, and the plans’ administrators had the flexibility to respond to these economic shifts over time (Wilken 1998). The original legislation setting up modern workers’ compensation plans across Canada thus did not require the plans to be fully funded. Rather, as Ison (1996, 823) recounts, “the practice emerged among all of the boards of assuming a full funding requirement, and then declaring an ‘unfunded liability’ when reserves fell short of that fictitious requirement” (a practice, he argues, that arose due to the growing influence of actuaries over ­lawyers in the administration of the plans). Regardless, many jurisdictions enacted legislation requiring plans to more towards full funding of liabilities. To accomplish this, employers were charged additional premiums, and benefits were reduced across the board (in Ontario, from 90 per cent to 85 per cent of pre-injury net earnings). An additional strategy undertaken to reduce expenditure was hastening return to work, largely by ensuring that workers had rapid access to the medical and rehabilitation services that would allow them a timely return to the workforce. This, as discussed below, in turn inflamed the perception that recipients of workers’ compensation benefits could “jump the queue” for medical services. The sense of a “crisis” in funding workers’ compensation programs also led to a discussion about privatizing some or all of the functions of the workers’ compensation boards, as was done in many American states. While neoliberal principles were at this point in the 1990s in full flight, the debate over privatizing workers’ compensation was also, suggests Ison (1996), driven by the renegotiation of the North American Free Trade Agreement (na f ta), which had expanded to include service industries such as insurance. Not only was this seen by American insurance companies “as a possible opportunity to administer in Canada the same kind of workers’ compensation ­coverage” as in the United States, but having a foothold in the ­administration of workers’ compensation was perceived as a “possible springboard for a takeover of health insurance in general” (Ison 1996, 826). Notwithstanding this public discussion, there was little serious consideration of privatizing workers’ compensation. While the American and Canadian systems were so different that simple ­comparisons were difficult to make, there was nonetheless little convincing evidence that costs would be lower in a private competitive system than in a public monopoly system (Gunderson and Hyatt 2000b).

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The Boundaries of Medicare

In systems where private insurance companies are involved, the adjudication of contested claims tends to be pushed into the courts. Many states do not provide employers with the same immunity from tort liability that Canadian employers enjoy (Ison 1996, 826). Thus the very point of the system that Meredith designed – protection of employers from damaging lawsuits, and prompt administration of claims for workers – would be undermined by the private financing of workers’ compensation. Regardless, by 2019 Ontario had completely eliminated its unfunded liability, and other provinces were following suit. The politics of funding workers’ compensation plans had receded, only to be replaced by criticisms that the system undermined the principle of equitable access to health care.

2.4 P rov is io n o f H e a lt h Care Servi ces Health care services constitute just a small fraction of w c payments. Workers’ compensation payments came to less than 1.9 per cent of public health expenditures, amounting to under $3.6 billion in 2019 (c i h i 2021a).1 Similarly, medical services are a relatively small ­component of workers’ compensation expenditure. This varies by jurisdiction, but the average share of workers’ compensation expenditure used for medical services hovered around 14 per cent three decades ago (Pozzebon and Thomaso 1993). This percentage share may have increased in recent years. In Nova Scotia, for example, health care costs accounted for 28 per cent of the total cost of incurred wc claims in 2018 (Workers’ Compensation Board of Nova Scotia 2020, 6). The majority of claims processed by workers’ compensation boards are financial payments for indemnity benefits, including both temporary or permanent loss of employment, and bereavement support for dependents in the case of work-related mortality. Workers’ compensation programs also provide vocational rehabilitation for workers who may have to be retrained for alternative occupations due to workplace injury. Depending on jurisdiction, some workers’ compensation agencies may also have a regulatory role in shaping occupational health and safety provisions.  1 This is a rough estimate based on cihi’s category of “social security funds,” almost all of which is fpt workers’ compensation programs; but since this category also includes the Quebec drug plan (for which there is no c i h i estimate) the best we can do is say that it is less than 1.9%. This comes from cihi nhex (National Health Expenditure) data tables A.2.1 and A.2.2.

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Workers’ Compensation

27

Because w c is explicitly excluded from the definition of insured health services in the Canada Health Act, workers’ compensation agencies are able to obtain and pay for medical services otherwise covered by provincial plans. The medical services funded by workers’ compensation programs are comprehensive, including diagnostic ­services, primary and acute care, drugs and devices, and rehabilitation ­services. The precise mix of services is determined by the workers’ ­compensation board in each jurisdiction. As Hurley and colleagues note, however, this spending “is concentrated in some areas of ­particular policy concern such as orthopedic surgery, musculo-skeletal treatment, rehabilitation and physiotherapy, and diagnostic imaging, making its potential impact in these fields disproportionate to its overall impact” (Hurley et al. 2008a, 8). Historically, some treatment facilities (such as rehabilitation centres) were run directly by provincial workers’ compensation boards. One example was the Downsview Worker’s Compensation Hospital in Ontario, an institution built in 1957 that specialized in workplace injuries. However, the cost of sophisticated new technologies, as well as resistance by injured workers to travelling long distances to reach these facilities, meant that boards increasingly contracted for services provided by existing facilities. For primary care, workers’ compensation plans generally allow a worker’s own general practitioner to bill for services. If the general practitioner then refers the worker to a specialist, some plans require that they only use specialists specifically retained by the province’s workers’ compensation board. Other jurisdictions permit the worker to choose their own provider, as long as the provider meets criteria set out by the board. Provinces also vary in the ways that physicians are used in gatekeeping and adjudication roles (Lippel et al. 2016). Ill or injured workers thus use many services provided publicly by each province. However, providers generally use different billing codes for their services when they are dealing with workers’ compensation cases. These billings are submitted to the appropriate provincial authority, which then bills the workers’ compensation body directly. Federal government employees are treated in the same way within the provincial health care system where they reside, but the providers’ claims are sent by the provincial health insurance body to the federal workers’ compensation agency for payment. For these services, where a fee schedule has already been negotiated between providers and the ­provincial government, the existing fee schedule is used as a basis for

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The Boundaries of Medicare

payment. Where a fee schedule does not exist (e.g., for some hospital services), the workers’ compensation agency will negotiate directly with the relevant health authority for a discrete fee schedule. To this extent, then, workers receiving medical services through workers’ compensation “receive the same services on the same basis from the same providers as other individuals” (Hurley et al. 2008a, 9). The general wc schema is set out in figure 2.1. The picture becomes more cloudy when two other variables are factored in. The first is the boards’ use of third-party providers outside of the set of provincially insured goods and services. This generally includes physiotherapy or drugs and devices for which most people outside of workers’ compensation programs have to pay out of pocket, through private health plans, and occasionally through provincial extended health benefit programs. The second is the introduction of new billing codes providing higher remuneration for providers giving expedited care to those with workers’ compensation claims. These trends intersected in the 1990s, leading to the politicization of health care funded by workers’ compensation plans. In the 1990s, federal retrenchment in health care transfers constrained health service provision at the provincial level even as the population in most parts of Canada increased. The damper on public funding of health services led, in turn, to a net migration by health care providers out of the country. Wait times for health services ­ballooned. At the same time, as noted above, the unfunded liability of workers’ compensation plans became a major political issue. Employers, directly responsible for funding these plans, became increasingly concerned at the costs involved in longer wait times for treatment, especially given the observation that the longer an injured worker was without treatment, the more likely they were to incur permanent disability. Workers’ compensation boards, traditionally viewed as “silent” or passive payers (Campolieti and Lavis 2000), became actively involved in rethinking the provision of health care services for their clients, in part because of provincial constraints on health spending and services in the 1990s (Tuohy 2002). Not only did they become “more adept at writing, monitoring and enforcing contracts, and at generating competition among physicians” (Hurley et al. 2008a, 11), but they found ways of expediting care for their clients. One method, as noted above, has been paying health care providers more in order to receive expedited care. As Davidson (2008) explains, the agreement between

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Injured/ill worker

GPs

Diagnostic services (public and private)

Hospitals

Private treatment facilities

Key  Service  Payment  Other

W C-provided health care ­providers or facilities

Provincial or territorial workers’ compensation boards

Employers

Oversight

Mandate

Provincial/ Territorial Government (Ministry of Labour) Figure 2.1  Provision and financing of health services under workers’ compensation programs

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The Boundaries of Medicare

BC’s medical association and workers’ compensation body established “an 8% bonus above the provincial healthcare insurance (m s p ) fees plus enriched fees for a range of services demanded by the w cb plus special fees for ‘expedited services’” (18, emphasis in the original). Another strategy has been contracting with public facilities to use space and human resources deemed “excess capacity.” This could be the use of diagnostic imaging equipment during off-hours, or the use of operating theatres that stand empty due to budgeting restrictions (Hurley et al. 2008a). In Alberta, for example, the w c Board offered a $200 “enhancement fee” to surgeons who undertook a procedure within fifteen days of when it was recommended. When challenged, the Board clarified that the fees were to facilitate the addition of new surgical appointments on weekends and evenings (Lisac 1998). There is some debate over the extent to which these workers’ compensation practices impose a cost on the public health care sector. If a hospital closes an operating theatre for two days a week to save costs, then both the facility and the surgeons may be available; but their use may place a greater strain on anaesthetists, whose services tend to be harder to obtain (Hurley et al. 2008b, 108). A third strategy has been to move away from Medicare-regulated facilities altogether, and to utilize non-Medicare-regulated facilities and physicians working outside of the Medicare system. This was already commonplace for services provided outside insured services (such as most physiotherapy); but wc plans increasingly began to target insured services provided by private clinics in order to provide timely access. The expansion of private clinics across Canada has been variegated, as the legislation permitting physicians to operate outside of the public insurance system, and requiring them to use public fee schedules (or not), is different from province to province. This is also the case with the extent to which provinces prohibit or discourage private health insurance for publicly insured services (Flood and Archibald 2001). Another reason the expansion of private care varies across provinces is that private for-profit clinics depend upon a particular volume of potential customers, so they tend to cluster in provinces with dense urban areas containing a critical mass of wealthy clientele. British Columbia, Quebec, and Ontario have the highest numbers of private clinics, although they exist across Canada (Ontario Health Coalition 2017). Technological advances in minor arthroscopic surgery and diagnostic imaging have facilitated the entry of private clinics specializing in these areas – precisely the areas in which most w c

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services are required (Davidson 2008). The relationship between private clinics and wc plans is thus symbiotic: the plans are able to find expedited services for diagnostic and surgical services, while the clinics become more financially viable with stable w c contracts (another source of income for private medical clinics is from automobile injury insurance claims: see Davison 2008). The evidence outlining how useful these expedited payments and access to private clinics are for the overall effectiveness of workers’ compensation is limited. British Columbia, in particular, has been using a system of expedited surgical payment for some time. As Koehoorn and colleagues describe, WorkSafeBC paid 375 per cent more for expedited knee surgery in private clinics ($3,222, as opposed to $859 for non-expedited surgery in public facilities). The expedited services meant an average reduction of two weeks’ waiting time for surgery. This meant a concomitant reduction in wc benefits over this period. However, if the main justification for expedited surgery was the worry that injured workers waiting longer would be less likely to return to work, the two-week time period presented negligible ­differences between public/private and standard/expedited care (if the ­difference were over twelve months, the results might be more significant). The issue then becomes whether the fees paid for expedited care are good value for money (Koehoorn et al. 2011). But the political and policy dynamics here are also a concern. To the extent that private infrastructure is seen as a useful solution to wait times in a key social security program, it “strengthens the legitimacy of the argument linking timelines of service with extrabilling” (Healy 2007, 14). As the plaintiffs argued in Cambie Surgeries Corporation v. British Columbia, if paying for expedited care is acceptable for injured workers, why should it not be acceptable for all? Given that provincial governments have themselves chosen at times to use private clinics to alleviate public waitlists, it is unlikely that we will see their demise any time soon. A different issue is whether the stable funding provided by w c contracts will attract multinational private clinic chains into Canada, and whether they will present a much more aggressive private presence in the health care landscape (Ontario Health Coalition 2017). At the very least, the utilization of private clinics by w c plans to address long wait times raises the implicit questions of why w c boards care deeply about waiting, and why the universal system doesn’t (Lewis, Zierler, and Leeb 2008, 46).

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2 . 5 R e g u l at io n a n d Governance The statutory authority for each wc body is set by individual provincial or territorial governments (although the Northwest Territories and Nunavut share a single board). Federal employees are covered by the Government Employees Compensation Act. In cases where workers who are not federal employees work outside of provincial boundaries (e.g., on offshore oil rigs), specific legislation mandates which jurisdiction will administer wc claims. Each board has the ability to determine the scope of compensable disabilities and the amount of indemnity benefits, and so these vary from jurisdiction to jurisdiction. However, if a condition is not covered, workers then become free to seek damages against their employer. The statutory acts governing the boards (generally referred to as Workers’ Compensation Acts) are usually supported by occupational health and safety legislation. The workers’ compensation boards in each jurisdiction may administer some or all of the occupational health and safety legislation; again, this varies widely according to jurisdiction (see table 2.2). The Association of Workers’ Compensation Boards of Canada (aw c b c ) is the umbrella organization that coordinates activity between jurisdictions, and compiles statistics from each jurisdiction to construct a national profile of claims and activities. It is made up of representatives from each of the p t w c members (the federal ­government’s wc board is not included). Canadian w c boards tend to work cooperatively. As noted above, for instance, services for federal government employees are provided through provincial and territorial wc agencies. Because some industries (such as transport or aviation) have employees who perform work in more than one jurisdiction, all boards have negotiated an Interjurisdictional Agreement so that employers do not have to pay multiple assessments across jurisdictions, and workers can receive services in their home province even when they are injured or have filed a claim in another province. When Canada’s provincial and territorial Medicare systems were established, their respective governance frameworks differed substantially from those underlying the much older w c systems. In recent years, however, there has been a noticeable convergence between the two modes of governance. The establishment of Medicare drew ­governments into the systematic oversight of health care funding and provision, resulting in the creation of a linear, top-down mode of governance in which hospitals, while formally governed by hospital

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Table 2.2 Workers’ compensation legislation by jurisdiction Jurisdiction

Enabling statute

Newfoundland Workplace Health, and Labrador Safety and Compensation Act

Prince Edward Island

Workers’ Compensation Act

Nova Scotia

Workers’ Compensation Act

New Brunswick

Workers’ Compensation Act Workplace Health, Safety and Compensation Commission and Workers’ Compensation Appeals Tribunal Act An Act Respecting Industrial Accidents and Occupations Diseases Workplace Safety and Insurance Act

Quebec

Ontario

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Corresponding regulations • Construction

Industry Early and Safe Return to Work and Re-employment Regulations • Workplace Health, Safety, and Compensation Regulations • Workplace Health, Safety, and Compensation Review Division Regulations • General Regulations • Appeal Regulations • Spousal Benefits Regulations • Chronic Pain Regulations • Firefighters’ Compensation Regulations • Workers’ Advisers Program Eligibility Regulations • Workers’ Advisers Program Transitional Regulations • Workers’ Compensation Appeal Backlog Regulations • Workers’ Compensation Appeal Tribunal Alternative Dispute Resolution Regulations • Workers’ Compensation General Regulations • Forms • Exclusion of Workers • Permanent Physical Impairment Rating Schedule • Pension Fund • General • Funding of Safety Associations

• There

are 45 separate enabling regulations for this Act. See http://legisquebec.gouv.qc. ca/en/showdoc/cs/A-3.001 for complete listing. • Benefit for Loss of Retirement Income • Construction Sector – Exemptions (Partners and Executive Officers) • Firefighters • First Aid Requirements • Functional Abilities Form • General • Insurance Fund • Pension Plan for Board Employees • Prescribed Temporary Indexing Factor • Return to Work and Re-employment – Construction Industry

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Table 2.2 (Continued) Jurisdiction

Enabling statute

Corresponding regulations

Manitoba

Workers’ Compensation Act

• Adjustment

Saskatchewan

Workers’ Compensation Act

Alberta

Workers’ Compensation Act

British Columbia

Workers’ Compensation Act

Yukon

Workers’ Compensation Act Workers’ Northwest Territories and Compensation Act (nwt) Nunavut Workers’ Compensation Act (Nunavut)

in Compensation Regulation Commission Rules of Procedure • Declaration of Workers in Government Employment Order No. 1, 1989 • Declaration of Workers in Government Employment Orders • Employer’s Information Regulation • Excluded Industries, Employers and Workers Regulation • Group Life Insurance Regulation • Interest on Over-Assessment Regulation • Interest, Penalties and Financial Matters Regulation • Minimum Annual Earnings Regulation • Minimum Periods of Employment and ­Non-Smoking -- Firefighters and of c Personnel Regulation • Self-Insured Employers Regulation • Workers’ Compensation General Regulations, 1985 • Workers’ Compensation Act Exclusion Regulations, 2014 • Firefighters’ Primary Site Cancer Regulation • Medical Panels Regulation • Workers’ Compensation Regulation • Firefighters’ Occupational Disease Regulation • Fishing Industry Regulations • Occupational Disease Recognition Regulation • Occupational Health and Safety Regulation • Reports of Injuries Regulations • Transitional Review and Appeal Regulation • Workers Compensation Act Appeal Regulation • Workers Compensation Appeal Tribunal Compensation Regulation • N/A • Appeal

• Appeals

Tribunal Rules of Procedure of Statutes Administration

• Assignment

Order • Firefighters

Presumption Regulations Review Assignment Order • Workers’ Compensation General Regulations • Legislative

Source: Association of Workers’ Compensation Boards of Canada, 2015, https://awcbc.org/ wp-content/uploads/2014/02/workers_compensation_acts_regulations_schedules.pdf.

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boards, became accountable to provincial ministers of Health for their public funding. Workers’ compensation plans, in contrast, were based on corporatist principles of governance, in which the boards ­overseeing these plans were equally represented with members drawn from labour and business, and were largely independent of direct government oversight. In the intervening years, however, provinces consolidated health care institutions and functions into regional units, and many subsequently amalgamated these regional units into a single health ­authority. These new public authorities operate at arm’s length from the government itself. In this sense, they have become more similar to wc boards. At the same time, the accountability provisions now required of many wc boards are more stringent compared to when they were established. In over half of all provinces, wc boards now include members of the public. Moreover, some provinces also require w c boards to submit business plans, annual reports, and performance reviews (Jennissen, Prince, and Schwartz 2000), and some have the capacity to approve board budgets (Nova Scotia Workers’ Compensation Review Committee 2002). They are, in this way, much more similar to modern health authorities. Both health authorities and wc agencies are formally independent in carrying out their mandates; although, for administrative purposes, health authorities are formally accountable to ministries of Health, and workers’ compensation boards are generally accountable to ministries of Labour.

2 . 6 C h a l lenges Both health authorities and wc boards have experienced problems in clarifying internal lines of accountability and communication between component units. A 2002 report on Nova Scotia’s workers’ compensation and health and safety program, for example, found that the four agencies administering the program (Occupational Health and Safety, Workers’ Compensation Board, Workers’ Advisers Program, and Workers’ Compensation Appeals Tribunal) had separate communication and accountability frameworks: “They operate largely as isolated bureaucracies, jealous of their administrative turf and only begrudgingly communicate with one another” (Nova Scotia Workers’ Compensation Review Committee 2002, 217). Both Medicare and wc systems face a tension between “steering” and “rowing,” or taking responsibility for larger policy-related issues versus ensuring that

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The Boundaries of Medicare

specific processes and programs run efficiently. Single amalgamated health authorities, in particular, have authority over the way in which programs are run, but provincial legislatures will step in to micromanage issues if they become politically contentious. Similarly, ­workers’ compensation boards have jurisdiction to make decisions in individual cases, and they ensure that program delivery runs effectively. Yet legislatures also have significant influence over workers’ compensation programs, both through the ability to formally amend the statutory framework governing the programs and through executive changes to regulations determining, for example, which workers or employers are included in the program, or the criteria of eligibility. Moreover, both systems have faced challenges across jurisdictions regarding the proper level of consultation with stakeholders and the broader public regarding goal-setting and policy development. Despite the quite different trajectories of public health care and workers’ compensation programs, the governance issues facing them today are remarkably similar. Throughout the 1990s, the dominant political concern was the level of unfunded liability underlying Canada’s workers’ compensation plans. By 2020, all provinces had not only eliminated their unfunded liability, but had achieved a funding ratio in excess of 100 per cent in order to ensure long-term sustainability and stability. Workers’ compensation systems in Canada face a number of new challenges. One is the aging workforce. The number of claims made by those in the 65+ cohort went up by over 60 per cent between 2000 and 2019, while the number of claims made by those in the 25–29 age cohort increased by less than 20 per cent (Association of Workers’ Compensation Boards of Canada 2021). In addition to a higher n ­ umber of claims, older workers’ claims can be more complex due to longer healing times and complications from possible pre-existing conditions. Another change has been in the kinds of jobs that predominate. Claims made by those in processing and manufacturing, for example, have become less prevalent than those made by workers in the health occupations, reflecting the relative shift in employment in these sectors. But because the formal designation of those industries requiring coverage dates back to the early 1900s, many workers in relatively new industries can be excluded from accessing w c coverage. The most profound change over the past century, however, has been in the kinds of claims being made under w c plans. Early-twentiethcentury compensation claims addressed workplace injuries and

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industrial diseases, where they were clearly linked to the workplace. By the twenty-first century, however, different kinds of illnesses were increasingly accepted as legitimate claims by various workers’ ­compensation systems, with different levels of eligibility and scope of coverage in each jurisdiction. One key development was in the addition of chronic pain to the list of covered conditions. In 1987, a decision by the Ontario Workers’ Compensation Appeal Tribunal recognized “enigmatic” chronic pain as a real and legitimate condition, and further determined that chronic pain resulting from a workplace injury, even if this was not the sole cause, was compensable under wc plans. This was a significant development, as estimates have suggested not only that chronic pain can account for three-quarters of total health care and compensation costs, but also that in the vast majority of cases, treatment is simply not effective in reducing the pain (Noonan and Wagner 2005). The validity of chronic pain as a compensable condition was reinforced by a Supreme Court of Canada ruling in 2003. This decision (Martin v wcb of Nova Scotia) held unanimously that excluding chronic pain from the Workers’ Compensation Act was unconstitutional under section 15 of the Canadian Charter of Rights and Freedoms, as it imposed differential treatment on the basis of disability. This ruling had a significant impact on wc plans. Nova Scotia, for example, noted that its inability to eliminate its unfunded liability until 2020 was a direct result of the high number of long-term awards made by the wc board, which were in turn the result of the inclusion of chronic pain as a compensable injury (Workers’ Compensation Board of Nova Scotia 2020, 9). A second issue addresses the extent to which stressful working ­conditions contributing to mental health problems can lead to valid claims. Here an important distinction is generally made between chronic stress and traumatic (or acute) stress. Between 1992 and 2002, several provinces (Manitoba, New Brunswick, Newfoundland and Labrador, Nova Scotia, Prince Edward Island, Ontario, and British Columbia) amended their legislation to explicitly exclude chronic stress as a compensable condition. By 2010, Quebec, Saskatchewan, Alberta, the Northwest Territories, Nunavut, and Yukon were the only jurisdictions in which one could file a claim for chronic stress (Lippel and Sikka 2010). It is difficult to determine the success rate for chronic stress claims in these jurisdictions, however, as they are not clearly distinguished from claims made due to traumatic stress

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(ibid.). In contrast, most jurisdictions have some form of coverage for mental illness due to acute stress, although in several cases this is limited to first responders or front-line workers (Keefe, Bornstein, and Neis 2018). Traumatic stress is generally considered under the principle of “presumptive coverage,” where eligible workers are not required to prove that conditions such as p t s d are work-related. More recently, the concept of a “traumatic event” has been expanded to include not only a discrete event but also the cumulative impact of ongoing trauma. But the concept of presumptive coverage has been expanding to include other categories of illness as well. Heart attacks, if they occur within twenty-four hours of a traumatic event, are generally ­covered for first responders, and firefighters in particular are now covered presumptively for a range of cancers. The latest discussion of presumptive coverage has focused on those who contract covid-19 in the workplace. By May 2020, covid-19 claims amounted to approximately a third of Ontario’s workers’ compensation claims (Blackwell 2020), and by February 2021 Ontario had approved 24,823 covid-19 claims (Mandlowitz 2021). Ontario, like most Canadian jurisdictions, assessed covid-19 claims on a case-bycase basis, where individuals had to establish not only a positive test, but also reasonable evidence that the illness could have been ­contracted in their workplace environment. This was a significant departure from the standard definition of “occupational disease,” which had not previously recognized the effects of viral pathogens. In August 2020, British Columbia became the first jurisdiction in Canada to confer presumptive coverage for c ov i d-19 cases. It is possible that c ov i d-19 will be responsible for exacerbating some of the new tensions noted above. If the spread of covi d -19 leads to a significant rise in the incidence of work-related anxiety, depression, or burnout, it could lead to greater political tension between workers’ organizations pressing for the expansion of coverage of chronic stress cases, and employers’ groups resisting them. And with the expansion of telemedicine, we may see an increase in the utilization of telehealth. c ov i d -19 has allowed online health care providers to thrive: Maple, a Toronto-based health care company, has seen consultation volumes tripling over the pandemic, with more than a million new patients enrolled by January 2021 (Boyle 2021). To the extent that some medical services (such as counselling) can be provided online, the burgeoning private online health care sector may absorb

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even more workers’ compensation services, reinforcing the political tensions discussed above. Further, to the extent that some workers’ compensation boards have suspended the requirement of medical certificates to confirm work-related injuries and illnesses, telemedicine has also challenged some the established legislative provisions and policies utilized by workers’ compensation schemes (Mandlowitz 2021). Virtual care is discussed in more detail in chapter 7.

2 . 7 C o n c lus i on In terms of access rules, both the scope and the breadth of health coverage provided by w c are quite narrow. Only those employed within specified industries are covered by w c, and only injuries or illnesses arising from employment are legitimate claims. The specific scope and breadth of coverage are determined at a provincial level, so there is some variability across jurisdictions. The depth of coverage for eligible claims, however, is quite substantial. The case of w c also suggests that the framework of access rules as it stands may be insufficient, as it lacks a dimension of timely treatment (itself a form of access). Within most Canadian wc programs, the timeliness of treatment is often not only superior to Medicare, but is also the source of ongoing political tension. Workers’ compensation is one of Canada’s oldest social security programs. As new issues and technologies have emerged, w c has restructured itself to meet these challenges. wc has, notably, been the subject of more Royal Commissions in this country than any other single subject (Gunderson and Hyatt 2000a, 8). But major program shifts are generally accompanied by political contests between the potential winners and losers of any proposed change. And the reshaping of w c programs over the past two decades has led to serious ­tensions with the administration of Medicare by provincial and territorial governments and the principles animating the Canada Health Act. Protection from the effects of illness and injury is not, of course, limited to these two programs: disabilities sustained outside the workplace are supported by Employment Insurance; severe and prolonged disability that precludes any employment is covered by the Canada and Quebec Pension Plans; and both pension plans and Old Age Security program provide “older individuals with failing health the financial capacity to retire,” thereby supporting Canadians’ health security (Marchildon 2008, 77). But to the extent that w c overlaps

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with provincial and territorial Medicare programs, rather than running discretely alongside them, political friction increasingly defines the relationship between the two systems (Canada 2002). Where two different programs provide the same kinds of services, for example, there is always the possibility of cost-shifting from one domain to the other (such as the under-reporting of workplace claims placing more demands on Medicare systems: see, e.g., Shannon and Loew 2002; Thomson 2007). More rancorous public debate in Canada has focused on the extent to which those injured in the workplace should have superior access to health care relative to those who fall ill elsewhere. If the overarching principle underlying the distribution of health care in Canada is simply need, it is argued, then the provenance of the injury or illness should be irrelevant. In 2002, the final report of the Commission on the Future of Health Care in Canada suggested that all jurisdictions should re-examine the Canada Health Act exemption that allowed workers’ compensation to provide preferential access to insured services (Canada 2002). In the two decades following this report, no jurisdiction has followed up on this recommendation. Admittedly, this is far from a simple task. There is, for example, the question (addressed in chapter 5) of how one would address the needs of those (such as migrant workers) who are currently covered under workers’ compensation but may not be eligible for public health insurance. More fundamentally, however, such a major reappraisal could upset the delicate political balance between workers and employers that was struck over a hundred years ago. Long wait times for health care services would be very costly for the employers directly supporting the program, and would weaken their willingness to support the principle of workers’ compensation. To limit cost increases, they would move to limit or reduce existing benefits, thereby undermining the support of workers for the program. Either way, removing the Canada Health Act exemption for health services would considerably destabilize the “historical compromise” that has provided palpable benefits to both workers and employers for over a century. Public health care and w c systems are thus not simply discrete programs that “function alongside one another,” as Justice Steeves suggested in the Cambie decision (para 328 and 342), but rather are independently run programs that are closely intertwined within the same ecosystem. Major changes to one system will likely have repercussions for the other; politically, the potential of any major policy

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41

change to result in clear winners and losers is a major reason that decision-makers are unwilling to change the status quo despite the inconsistency of “legally sanctioned queue jumping” in the provincial health care systems. The dissonance of rapid access to health services for a specific population can also be justified with reference to a more profound principle of democratic authority. Preferential access, on this account, is legitimate if it has been a deliberate choice made by responsible governments: “It is proper preferential access only because duly-elected legislators have accepted it … The ethical justification for this exclusion can only come from the fact that it is a democraticallyarrived-at policy choice” (Alberta Health Services 2013, 100). Even so, this justification for the exclusion remains a precarious foundation for the long-term stability of Medicare, especially as public dissatisfaction with differential access to health services becomes more vocal. Politically, public health care and workers’ compensation are inextricably enmeshed, rather than existing as separate parallel ­systems. Long wait times for public services will fuel resentment for those gaining quick access through workers’ compensation; efficient access for publicly insured services would eliminate the ­political ­acrimony. In this way, the fate of workers’ compensation may be dependent upon the shape and vitality of provincial health systems.

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3 The Canadian Armed Forces and Veterans

3 . 1 In t ro ducti on Beyond the workers’ compensation exception discussed in the last chapter, the most important carve-out in the Canada Health Act is for members of the Canadian Armed Forces, who are excluded from the definition of an “insured person” in the Act. This exemption directly impacts the 67,492 active members of the Canadian Armed Forces (caf), who are not considered provincial and territorial (pt) residents and are therefore unable to access pt Medicare services. This compares to the approximately 14,000 Canadians serving sentences in federal correctional institutions at any given time, a further exception ­discussed in the next chapter (Statistics Canada 2022). c a f members receive all their health coverage and services through the military, which has a long-established network of health centres throughout Canada, and used to also run hospitals in Canada. Sometimes called the fourteenth health system in Canada, the c a f provides a comprehensive range of primary care services to military members through both military (regular forces and reserves) and ­civilian physicians, nurses, and other health care providers while it arranges and pays for more specialized care, including acute care, through pt systems. c a f members also receive dental care, r­ehabilitation care, and a full range of both prescription drugs and over-the-counter pharmaceu­ ticals. The services and coverage received by caf members are shown in figure 3.1. This arrangement does not extend to caf family members or caf retirees, who are considered residents under the c h a and therefore receive their health services through the regular p t Medicare system.

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The Canadian Armed Forces and Veterans

43

Members of the Canadian Armed Forces

In-garrison medical care, rehabilitation, mental health care, and other services (and acute services while deployed in ­conflict zones)

Prescription drugs and O T C drugs

Government of Canada (Department of National Defence): Canadian Forces Health Services Group

Hospital and other ­specialized health care services delivered by provinces and ­territories but paid for by Department of National Defence

Dental care, vision care, etc.

Key  Service  Payment

Figure 3.1  Canadian Armed Forces health services and coverage

This bifurcated coverage creates its own problems, in that military families move three to four times more often than civilian families (Mahar et al. 2018). In other words, military family members are constantly changing their provincial health cards along with their residency even while the caf member of the family retains continuity of coverage and care through the military system. The portability requirements of the Canada Health Act do ensure that the caf family members do not lose their provincial or territorial coverage while moving: the province they are moving from is legally obligated to provide insurance coverage while they are meeting the minimum residency requirement in their new province of residence, as stipulated in section 11(1)(c) of the

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The Boundaries of Medicare

Canada Health Act (see appendix A). However, these moves can ­create a serious break in the continuity of care, including difficulties in finding a new family doctor and lengthy and disrupted waits for specialist referrals and treatment. Further, difficulty in the transfer of medical records across p t jurisdictions can have extremely negative consequences beyond the common problem faced when moving to areas in short supply of family physicians and needed specialists (Mahar et al. 2018; Cramm et al. 2019). The Canadian military health system, like the military health systems in most other countries, has two roles. The first is to provide in-­garrison health services for armed forces personnel and other entitled beneficiaries, such as reservists in prescribed situations, through an established network of medical treatment facilities. The second role is to support c a f personnel on operations both inside and outside the country (Bricknell and Cain 2020; d n d 2014). This latter role includes providing deployable health service capabilities to support military operations inside and outside Canada, such as the past ­mission in Afghanistan. The military must also be ready to provide support, including caf health personnel, in national emergencies when domestic health systems face major crises (dnd 2014). A good example of this was the military medical assistance provided to the governments of Ontario and Quebec – at their request – in the midst of the collapse in care in some long-term care homes triggered by the covi d -19 pandemic in 2020 (Marchildon, Allin, and Merkur 2021; Marchildon and Tuohy 2021). Upon leaving the military (except if dishonourably discharged), former caf members are classified as veterans. These former members become provincial or territorial (pt) residents under the definition of the cha and receive pt Medicare services in the usual way. However, their status as veterans allows them to receive extended health care, long-term care, and home care benefits as discussed in greater depth below in section 3.5.

3 . 2 H is to ry The Canadian Armed Forces’ medical care service can be traced to the establishment of an army and militia in the late nineteenth century. However, it was the creation of the Canadian Army Medical Corps in 1904 that brought military health care clinicians together under a single unified command. On the eve of the First World War, the regular

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The Canadian Armed Forces and Veterans

45

army Medical Corps had twenty medical officers and five nurses. After the outbreak of war, the Medical Corps grew rapidly, and by 1918 there were dozens of hospitals and field ambulance units (dnd 2003). A similar expansion occurred in the Second World War, along with independent medical capability added to the Royal Canadian Navy and the Royal Canadian Air Force. In 1941, the Royal Canadian Navy opened hospitals at its Pacific and Atlantic naval bases in Esquimault, British Columbia and Halifax, Nova Scotia (dnd 2003). In the early postwar era, the medical service units for the Canadian army, navy, and air force cooperated informally with each other but greater formal centralization was eventually deemed desirable. Consequently, in 1959, the Canadian Forces Medical Service was established to provide all medical services to all military members. Then, a decade later, in 1969, the federal government formally ­integrated the three branches into a single Canadian Armed Forces (d n d  2003). However, even after separate branches were again ­re-established by the Mulroney government, unified command and control of military health services was retained. When the federal government introduced its original laws on universal hospital coverage (1957) and universal medical care coverage (1966), which were then subsumed by the Canada Health Act of 1984, military members were excluded from coverage in the knowledge that they were already covered under the military system. In this respect, the evolution of separate health coverage for Canadian m ­ ilitary m ­ embers followed a path similar to that followed in most of the other high-income countries that implemented universal health coverage after the Second World War (Paris et al. 2012; Bricknell and Cain 2020). In other words, Canada is not an outlier, in that parallel health coverage and health systems for the military are common in other countries. However, the Canadian military health system is not nearly as comprehensive in its coverage, facilities, and services as, for e­ xample, the US military health system, which is administered by the US Department of Defense Military Health System (Adirim 2019; Tanielian and Farmer 2019), much less the Veterans Health Administration (Oliver 2007). In the mid-1990s, when provincial governments as well as the federal government were reducing expenditures in response to historically high interest payments on accumulated debt, three of the six military ­hospitals were closed, and the number of health care providers was reduced from 3,000 to 2,400 (dnd 2003). This process continued until, by the early 2000s, all military hospitals in Canada were effectively

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closed and their services contracted out to provincial and territorial hospitals serving Medicare patients. Again, Canada does not stand out here, in that many other countries’ armed forces have also tried to reduce costs by reorganizing or contracting out services to the civilian sector (Bricknell and Cain 2020). However, the Canadian military still had to be prepared to provide its own hospital care in conflict zones. In February 2006, Canadian military personnel were deployed to Afghanistan, beginning what would become the longest engagement as well as the most intensive military engagement for Canada since the Korean War. A nine-bed military hospital, including a three-bed intensive care unit, was established in Kandahar along with three ­surgeons, two anesthesiologists, an internist, a radiologist, and several family physicians. The hospital was equipped with a blood bank, ultrasonography, digital radiography, laboratory services, and a c t scanner (Tien 2006). During the next five years of this conflict, a total of 200 caf health services personnel were deployed to provide care for Canadian military members as well as selected civilian ­casualties (Tien 2011).

3 . 3 F u n d ing The funding for the caf is a direct expenditure of the Government of Canada. As is the case in other countries, the military health system is budgeted through the Department of National Defence (dnd). In the budget estimates for 2020–21, the amount allocated for defence was $24.3 billion, the single largest direct expenditure on services by the Government of Canada. While it is not possible to discern within the budget documents the proportion of this spending devoted to health care (including the coverage and services provided to active members), in the Auditor General of Canada’s 2007 report, it was calculated that the Department of National Defence (d n d ) spent over $500 million annually to deliver health care services and benefits to military ­members. At that time, the health spending per capita was $8,600, almost double the health spending per capita for Canadians in general (oag  2007). By 2016–17, total military health care ­spending was $722.5 million, most which was spent on its 66,096 regular force caf members (dnd 2018). This comes to $10,931 per capita, considerably above provincial government health spending per capita that year, which ranged from a low of $6,321 in British Columbia to a high of $7,378 in Newfoundland and Labrador (ci h i 2017).

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In fact, per capita spending is higher than that of provincial health systems in part because the military health system has unique costs associated with the constant readiness for military intervention and the higher rate of injuries associated with field activities and physical fitness training (dnd 2014). There are other possible reasons for this higher cost. Military members are spread, sometimes quite thinly, throughout Canada, as are c a f health centres and other facilities. This alone may create a high-cost structure. However, the military’s demographic is both younger and healthier than the Canadian population average, which should serve to push down the average cost. It should also be noted that the price paid by the Canadian military for contracted medical services during this period was also higher, such that in 2019 the c a f amended its points on the fees it paid to match the pt rates for Medicare (insured) services to all service providers (dn d 2019). As pointed out in a recent internal evaluation of the military health system, the services provided by the caf’s Health Services Group are not merely to compensate for their members’ exclusion from pt health plans but also intended to “contribute to their medical fitness” as part of ensuring the military’s operational readiness and effectiveness (dn d 2018). Finally, the health needs of these members, especially given their higher-than-average need for and utilization of mental health services, require a more intensive use of fiscal and health human resources (d nd 2014; Sareen et al. 2016). In recent years, there have been some questions raised concerning the amount the c a f has historically reimbursed provincial health agencies, health care facilities, and independent health practitioners for the services they have provided to military members. In response, as already mentioned above, the federal government made major changes to the fees it reimbursed hospitals and provincial health ­agencies for inpatient treatment for members in 2019. The problem, at least in part, is connected to the way that some provincial governments set their respective tariffs for Medicare. In Ontario, for example, the provincial government has one set of rates for its Medicare (Ontario Health Insurance Program or ohip) patients and then relies on another fee schedule set by the Ontario Medical Association for non-ohip services. It was this second set of much higher fees that the provincial government applied to military members not covered under o h i p. Although hospitals were reimbursing physician care at the higher rate expecting to be reimbursed by Ottawa, this practice was

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halted by the minister of Defence, and the hospitals were reimbursed at the lower Medicare rate (Stephenson and Connolly 2019).

3.4 P rov is io n a n d D e l ivery of S ervi ces The provision of military health care is through the Canadian Forces Health Services Group (h s g ), whose headquarters are in Ottawa. For the purposes of the delivery of services, h s g is divided into two regional groups, one (1 hsg) for western Canada and the other (4 hsg) for eastern Canada including Ontario and Quebec. In 2013, hsg directly managed 6,350 military and public service personnel as well as 500 contractors, many of whom were physicians. These ­individuals worked in 43 health service units and 83 health service detachments in Canada as well as four detachments in Europe and two detachments in the United States (d n d 2014). In addition, in 2013, 50 hsg personnel supported 16 international missions from the Caribbean to Africa and Asia, the largest of which at the time was in Afghanistan (dnd 2014). Every military base in Canada provides health services – what in military jargon is called “in-garrison” health care. All enlisted members are provided cards by Medavie Blue Cross for their Medicare and other health care coverage: this facilitates the payment of civilian health providers for services rendered to military personnel. Medavie Blue Cross is a for-profit insurance provider for the Government of Canada’s health benefit programs, including, in addition to the caf, Veterans Affairs Canada, Immigration, Refugees and Citizenship Canada, and the Royal Canadian Mounted Police (Medavie 2022). Military care is organized into health services centres or clinics, mobile medical units called field ambulances, one field hospital, two schools (the School of Operational Medicine in Toronto and the Canadian Forces School of Survival and Aeromedical Training in Winnipeg), two trauma training centres, two medical simulation ­centres, a medical equipment depot, and a research program directed by the military’s Surgeon General. c af health providers are drawn from forty-eight health professions and semi-professions. All military personnel are rostered to a Care Delivery Unit, which is located in a caf clinic. The services they receive are comparable in some respects to those received in a civilian primary care practice, although the range of services is much broader. The typical services offered in a military clinic include: an interprofessional primary care delivery unit,

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cast management, dental care, laboratory services, immunization services, pharmacy, physiotherapy, ophthalmology, mental health care services, and some specialist physician care services. One long-established tradition in military clinics is the sick parade, which takes place every morning. This is where members can show up, usually between 0700 and 0930, on a walk-in basis to get immediate attention and potentially get referred to one of the specialists in the clinic. The services provided involve a combination of triaged and less acute emergency department services ordinarily only available in a hospital, primary care services, and some immediate specialist care, all provided through an interdisciplinary health care team (Alger 2016; d n d 2014). Clearly, this is a service not available to most civilian Canadians and has prompted some professionals to suggest that it should be drawn upon as a model of patient-centric care for the ­general population (Alger 2016). As noted above, the Canadian military no longer owns and manages its own hospitals. Members instead use civilian hospitals in the regular system, with provincial and territorial governments reimbursed by the Department of National Defence. At the same time, the Canadian military must always be prepared to set up and staff temporary ­hospitals in conflict zones to serve both its members and civilian populations in those areas.

3 . 5 R e g u lati on As a result of their exclusion from the cha, members of the caf and their health care needs are covered under the National Defence Act and its associated regulations. The National Defence Act is the main enabling legislation for organizing and funding Canada’s military, including the military health system. First coming into force in 1923, this law has gone through multiple amendments since then. The key provisions on military health care are in the Queen’s Regulations and Orders (q r & o ), a set of voluminous regulations unique to the Canadian military. In Volume 1 of the qr&o, medical care for military members is covered in chapter 34 while dental services are covered in chapter 35. In contrast to the definition of medical care in the cha, medical care is defined with great specificity in the qr&o as “medical and surgical treatment including necessary drugs and dressing, diagnostic and investigational procedures, hospitalization, preventive medicine

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procedures, transportation as a patient and the supply and maintenance of prosthetic appliances.” Professional care, however, is narrowly defined as “that portion of medical care provided to an individual by a licensed medical practitioner”: in other words, a physician. The regulations also state that medical care must be provided free of charge to military members. Dental care is covered in separate regulations and is also provided free of charge to members. In other words, the breadth of coverage for military members is considerably broader than for all other Canadians under the c h a and their p t Medicare plans, in that there is full coverage for prescription drug therapies, rehabilitation services, and basic dental care. As veterans, c a f retirees continue to receive drug, vision, and dental benefits through their pension plans. In addition, veterans are eligible for a comprehensive set of supplementary health and social care benefits, as illustrated in figure 3.2. The Department of Veterans Act simply states that care, treatment, and/or other health benefits provided to veterans are covered under regulations. These details are found in three discrete parts of the Veterans Health Care Regulations: • •

•

Part I – health care benefits Part II – veterans independence program (home and community care) Part III – long-term care

Most of the content in the regulations on health care, home and community care, and long-term care benefits concerns the rules for eligibility, including some targeted benefits where eligibility is ­determined by income or assets. The extra benefits under Part I include prosthetics and other disability aids, prescription drugs, and dental exams and treatment, as well as reimbursement for the cost of medical transportation. The services included in the veterans’ independence program consist of home and community care services, including those provided by health professionals such as nurses and physiotherapists as well as nutritional services, personal care, and housekeeping ­services. Part III provides coverage for long-term care in a qualified facility for those veterans who are no longer, due to physical or cognitive disabilities, able to live on their own. The real question is the extent to which the health benefits available to veterans exceed those available in p t extended benefit plans. The

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Veterans (retired Canadian Armed Forces members)

Veterans’ benefits (health care ­benefits, home and community care, long-term care)

Federal pension plan with health benefit coverage

Government of Canada (Department of National Defence)

Provincial or ­territorial Medicare and extended benefits

Provincial or territorial departments of Health

Key  Service  Payment Figure 3.2  Veterans’ health services and coverage

short answer is that, unlike Medicare, it depends on the province, as the cha does not set any national access rules for prescription drugs, home care, or long-term care. Without a doubt, however, veterans’ coverage for these non-Medicare services generally exceeds what is provided in most provincial extended benefit coverage plans.

3 . 6 G ov e rnance Like most other military health systems in the world, the Canadian health system is directly governed by the Department of National Defence (d nd ), which reports through the minister and the Cabinet to the Parliament of Canada. dnd has both a civilian and a military component. Civilian oversight is institutionalized through the d n d minister and the deputy minister and the associated policy and

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administrative functions in the Department of National Defence. The c a f is the military component, which reports to the minister of National Defence through the Chief of the Defence Staff – the top general in the Canadian military. The Canadian Forces Health Services Group (hsg), headed by a commander, reports to the Chief of Military Personnel Command, who, in turn, reports to the Chief of the Defence Staff. As part of hsg, the Surgeon General is the clinical head of dnd, reporting to both the minister of National Defence and the Chief of the Defence Staff. As noted in an internal evaluation of caf Health Services, the military health system reflects the direct accountability of the Government of Canada and its constitutional authority over the “militia, military, and naval service and defence” under ­section 91(7) of the Constitution Act (d n d 2018).

3 . 7 C h a l l e nges One of the major challenges is the incidence of trauma, mental illness, and alcohol abuse among members of the Canadian military. Although suicide rates are not necessarily higher than the rates in the Canadian population at large, there is evidence that members with more deployments suffer greater trauma and are therefore at greater risk for suicide (Rolland-Harris 2015). As a consequence, the Canadian military has made a concerted effort to provide a broad range of mental health services to its members (Montgomery 2017). Depression, post-­ traumatic stress, panic, anxiety, and substance abuse are more common among military members than in the general population (Hinton et al. 2021). Regular force military members are 32 per cent more likely than other Canadians to have suicidal thoughts and 64 per cent more likely to plan suicide (Sareen et al. 2016). Similar to what military health organizations have done in the United States, the United Kingdom, and Australia, the Canadian military has implemented a number of mental health education and p ­ sychological resilience programs in addition to providing psychiatric and psychological treatment services. The result is that mental health services have improved considerably in the military and now exceed the services readily available to civilians in Canada. There is also clear evidence that military members have increased their use of mental health services at higher rates than the civilian population (Fikretoglu et al. 2018). While the c h a and accompanying p t Medicare systems have produced incomplete coverage for mental health services – fully covering

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physician services, including psychiatric services, but not covering professional psychological services or outpatient prescription medication – the military health system provides both types of mental health services simultaneously to its members (Romanow and Marchildon 2003 and 2004). Nonetheless, the stigma of mental illness persists among “old-school” members who perceive mental illness as a weakness, an attitude that continues to discourage some members, despite their needs, from seeking mental health services in the military (Hinton et al. 2018). Given the work required of military members, particularly when deployed in foreign conflict zones whether in military interventions or peacekeeping missions, as well as when deployed in domestic emergencies, the chances of experiencing trauma as part of the job are much greater than for most Canadians (Montgomery 2017). In one research study of almost 10,000 regular members and reservists, over 85 per cent reported a median number of three or more trauma e­ xposures (Brunet et al. 2015). As a result, addressing and treating post-traumatic stress disorder (p t sd) is a major challenge for the Canadian military health system. Moreover, the greater prevalence of pre-­deployment disorders such as depression makes members far more vulnerable to post-­deployment p t sd (Belliveau et al. 2019). Military readiness requires the physical training and testing of members on a regular basis. One result of this is a higher rate of musculoskeletal injuries, and the regular use of physiotherapy services as well as prescription drugs to address chronic pain. Indeed, 40 per cent of military members access physiotherapy services each year, a need that has grown since the turn of the twenty-first century (dnd 2014). This is a far higher use of physiotherapy than among the general population. In response to the prevalence of chronic musculoskeletal conditions among members and the fact that musculoskeletal conditions are the most common reason for members not being deployed, the military provides access to chiropractic care when prescribed by a physician (Mior et al. 2019). The health challenges described above do not simply disappear after members leave the military (Thompson et al. 2011). They tend to use health care providers more than the general population to address both musculoskeletal and mental health problems (MacLean et al. 2021). For example, based on a large-scale sample of regular force veterans released between 1998 and 2012 (VanTil et al. 2018), 34.5 per cent were found to have back problems, a rate that was almost

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double the Canadian average of 18.8 per cent. In addition, 22.4 per cent suffered from arthritis compared to 10.8 per cent of the Canadian population. In terms of mental health, 17.5 per cent of regular force veterans reported having depression compared to the Canadian average of 6.3 per cent. Veterans also suffered from anxiety (11.1 per cent) at a level double the Canadian average (VanTil et al. 2018). For eligible veterans, the Department of Veterans Affairs pays for some of the services not covered under the Medicare or extended health benefits plans of the provincial and territorial governments. These “extra” services can include prescription drugs, physiotherapy services, specialized psychological care, and some facility-based mental health and addiction treatment services. For mental health services, veterans can access the Department’s Disability Benefits Program or the Vocational Assistance Program for rehabilitation services. In its report in 2014, the Office of the Auditor General of Canada found that while access by veterans to the Department’s rehabilitation ­services was timely, access to disability benefits was slow and the application process was overly complex (oag 2014).

3 . 8 C o n c l usi on The caf’s military health system really does constitute the fourteenth health system in Canada, a system in which access rules operate very differently than for civilians. Federally legislated and regulated access rules ensure the coverage of Medicare services as well as extended benefit services that are normally part of many Canadians’ ­employment-based private health insurance plans or the more targeted programs or coverage provided by provincial and territorial governments. In this sense, this fourteenth health system is perhaps the most integrated and hierarchically coordinated health coverage and service program in the country. This integration provides potential advantages, including a structural foundation that can facilitate more coordinated care across a very broad spectrum of services than experienced by civilians in Canada. Unlike workers’ compensation, there has never been the view that the military health system is a parallel public system that privileges caf members over civilian Canadians and their provincial or territorial Medicare coverage. However, this fourteenth health system reflects the obligation to provide adequate health services and coverage to uniformed individuals serving the interests of the country. The breadth

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of services and coverage in this fourteenth system also recognizes the higher needs of this population for some services, such as mental health and physiotherapy services as well as surgical and trauma services in combat zones. Although it does appear that the caf did, at least for a period of time, reimburse provincial and territorial providers at a rate that exceeded the usual Medicare rate, there has been no perception that Canadian military members are jumping the Medicare queue, nor that this has created two tiers of access, unlike the situation of wc beneficiaries described in the previous chapter. As discussed above, there remain some key challenges for Canada’s fourteenth health system. One is the continuing need to address the higher-than-average incidence of trauma, mental illness, and alcohol abuse. Another is addressing not only the immediate consequences of injury but the chronic health problems that are an almost unavoidable consequence of the physical demands placed on military members, both in training and in the field, many of which accompany members into their post-military careers.

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4 Federal Correctional Institutions

4 . 1 In t ro ducti on Both provincial/territorial (pt) and federal governments in Canada have authority over correctional facilities and services. The provinces and territories are responsible for prisoners serving sentences of up to two years; Correctional Service Canada has jurisdiction for those ­serving sentences of two years or more. While inmates in the federal corrections system are excluded from the Canada Health Act (cha), prisoners in provincial correctional facilities do fall under its purview. However, in over half of the provinces (beginning with Nova Scotia in  2003, followed by Alberta in 2010, Quebec in 2016, British Columbia in 2017, Ontario in 2019, and Newfoundland and Labrador in 2021), provincial health authorities are directly responsible for correctional health. In the remaining provinces, health care services remain under the authority of ministries of Justice rather than those provinces’ respective health authorities. When health care in provincial facilities is provided directly by provincial health care ­systems, there is greater continuity between health care provided in prisons and in the community post-discharge (largely because there are not separate health care records for prisoners when all health care is provided directly by the province). Moreover, health care providers in correctional facilities employed by provincial health systems enjoy more support, career opportunities, and professional development (Cruickshank 2017). Inmates in federal correctional institutions are generally considered to be a high-risk and high-needs population requiring specific health care services, “some of which stretch our conventional understanding

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of what prisons are or what they are supposed to do” (Office of the Correctional Investigator 2015, 3). In September 2020 there were 12,761 individuals incarcerated in federal facilities (Statistics Canada 2021a). This number has been steadily decreasing as the numbers of individuals in federally supervised community, day parole, and full parole programs have increased (Statistics Canada 2021b). Sixty per cent of the prison population has an educational level of Grade 8 or less. 80 per cent of male offenders deal with addiction or substance abuse, while 60 per cent of female offenders are prescribed psychotropic medications. 27  per  cent of those incarcerated in federal ­facilities report chronic pain, and 16.5 per cent have hepatitis C. Between 10 and 25 per cent of those in correctional facilities are estimated to have fetal alcohol spectrum disorder (Office of the Correctional Investigator 2015). Federal institutions also have relatively high Indigenous populations. While Indigenous individuals make up about 5 per cent of the adult population in Canada, they represent 30 per cent of male and 42 per cent of female admissions to federal custody (Office of the Correctional Investigator 2020, 20). This number has been rising consistently over the past two decades despite the 1999 Gladue ruling, which required sentencing authorities to take into account the ­historical circumstances of Indigenous offenders, and to consider restitutive or other alternatives to incarceration. The recidivism rate for Indigenous people tends to be quite high as well: for Indigenous men in the Prairie region, for example, the rate of those re-offending within five years of release is 65 per cent (Office of the Correctional Investigator 2020, 20). Women account for only 6 per cent of all people incarcerated in federal facilities (Correctional Service Canada 2019). Ford and Wobeser (2000) found that 32 per cent of those in federal correctional institutions in Ontario were born outside of Canada, which is double the proportion in the general population. While health care services in the federal correctional system are excluded from the Canada Health Act, they are subject to the 1992 Corrections and Conditional Release Act (ccra) and its corresponding regulations. This Act obliges Correctional Service Canada to provide every inmate with “essential” health care (in conformity with professionally accepted standards), and to provide “reasonable access” to “non-essential” health care. The underlying principle is that there should be equivalence in standards and delivery of health care between those incarcerated and those in the wider community (see section 4.3),

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especially for the curative services that are defined as “insured services” under the Canada Health Act. The c h a defines the floor for insured health services that must be provided by provincial governments in order to be eligible for a per capita share of the Canada Health Transfer. This floor, in turn, indirectly establishes the minimum ­coverage that the federal government must provide inmates within the federally administered correctional system, since these inmates are excluded from provincial Medicare coverage. But this doctrine of equivalency between health services in the federal correctional system and pt Medicare, as well as in drug coverage and associated services, is difficult to measure. On the one hand, for example, Correctional Service Canada’s National Drug Formulary, stipulating the drugs normally provided by the federal corrections service, may be overly restrictive compared to pt formularies, limiting physicians’ prescribing and treatment options (Office of the Correctional Investigator 2018). On the other hand, Correctional Service Canada may pay for uninsured items such as medical devices, optometry, or dental care required by offenders that are not normally covered by pt health care plans (Correctional Service Canada 2017). The largest number of complaints filed by prisoners in federal ­penitentiaries year over year has to do with health care–related issues, more than any other category of complaint (Office of the Correctional Investigator 2020). The John Howard Society, an advocacy group for offenders, has filed several lawsuits against the federal government, alleging substandard health care in federal prisons. This includes a Charter challenge before the Supreme Court of Nova Scotia over the exclusion of federal prisoners from the Canada Health Act (Barreira and Loiero 2021). Because health care in federal correctional facilities is constrained by the need to maintain security, and because the health care needs of prison populations tend to be higher on average than those in the wider community, the provision of health care within federal institutions faces specific challenges. The issue of health outcomes for Indigenous populations in prisons, for example, is complicated and deep-rooted (see, e.g., Bernier and MacLellan 2011; Boyer, Fletcher, Sutherland, and Spicer 2019; and Ryan, Sabourin, and Ali 2020). And, while health care provided by Correctional Service Canada is ­considered to be exclusively under federal jurisdiction, it is not isolated from provincial or territorial health care systems. First, as noted in section 4.3, Correctional Service Canada health services should meet the minimum

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standards set out in the c h a as implemented in pt systems. Second, many of the services used by those in the federal correctional system are provided within the provincial health system. Third, certain health services or protocols in correctional facilities can be influenced by the provincial or territorial regulatory structure governing the region within which the federal facility is geographically situated. These themes will be discussed in more detail below.

4 . 2 H is tory Kingston Penitentiary, Canada’s first formal prison, was constructed in 1835, in the middle of both a major population boom and a wave of prison reform. Based on the congregate system of prison reform pioneered by Auburn prison in New York State, Kingston Penitentiary was considered to be an example of progressive prison design, and was established on the principles of reform and rehabilitation. These principles required discipline, hard work, silence, and strict obedience from each offender. Rather than retribution, moral reform was the objective of the prison sentence. And, as Joliffe notes, reasonably good health was an important aspect of this approach: “Proper healthcare was therefore seen as important by the prison reformers of the early nineteenth century because their faith in human improvement through social and environmental manipulation could not be realized in an unhealthy and decrepit setting. Indeed, the logic of prison reform demanded it” (1984, 7). Following Confederation in 1867, penitentiaries were placed under federal jurisdiction, and the first Penitentiary Act was passed in 1868 (with a corresponding set of Penitentiary Rules and Regulations ­introduced in 1870). Other federal correctional facilities were built soon after at Laval (1873), Stoney Mountain (1877), New Westminster (1878), and Dorchester (1880). By the 1930s, these penitentiaries were severely overcrowded, and riots broke out in several institutions (Fogerty 2021). A response to the riots, the 1938 Archambault Report began the first wave of penal reform in Canada. This set of reforms was informed by a different modality of incarceration: “No longer was the prisoner immoral; instead, in the scientific age of the mid-twentieth century, he was sick” (Joliffe 1984, 169). World War II put the Archambault reforms on hold until the late 1940s, although major reforms did not occur until the 1960 Report of the Correctional Planning Committee.

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Between 1958 and 1970, the number of federal correctional institutions jumped from eight to forty (Joliffe 1984, 164). Despite this, prison overcrowding was still evident and several major riots at prisons in the early 1970s led to another wave of reforms. The new approach focused on the rule of law in penal governance, with codes of prisoner rights and the expectation of transparency and accountability on the part of correctional authorities. The treatment-centred approach began to be replaced with one emphasizing the civil rights of inmates, including, importantly, the right to the provision of highquality health care (216).

4 . 3 R e g u l at io n a n d Governance The current legislation governing health care in federal correctional facilities is the Corrections and Conditional Release Act (c c r a ) of 1992, which was developed in the wake of the 1986 Correctional Law Review Project under the auspices of the Solicitor-General. This review was, in turn, informed by the United Nations’ 1955 articulation of standard minimum rules for the treatment of prisoners, which held that the standards of health for incarcerated individuals should be equivalent to those of the wider population (Scallon, Lancaster, and Kouyoumdjian 2021). The c c r a clearly outlines the responsibility of Correctional Service Canada to provide both essential care and reasonable access to non-essential care. Failure to do so can lead to class-action lawsuits (some of which are currently before the courts) and could potentially constitute a Charter violation (Office of the Correctional Investigator 2018). The operationalization of the principles outlined in the c c r a is achieved through numerous “Commissioner’s Directives” (cds), which establish more specific guidelines for treatment in particular instances (e.g., c d 843 addresses the management of inmate self-injurious or suicidal behaviour, while cd578 governs intensive intervention strategies for women’s institutions). Procedural guidelines for determining access to essential and non-essential health services are set out in Correctional Service Canada’s National Essential Health Services Framework, which was established in 2015. To ensure consistency across all regions in Canada, Correctional Service Canada also has a national formulary and integrated mental health guidelines. Performance evaluation is undertaken by Correctional Service Canada’s Health Services Sector through annual mental health

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performance measurement reports and quarterly public health reports. The unit also undertakes research reports and prevalence studies to determine the scope and nature of various disorders within the ­correctional facilities (Correctional Service Canada 2017, 116). Since 2007, there has been a progressive shift towards independent health governance: for example, the health services provided by Correctional Service Canada are now externally accredited by Accreditation Canada (Cameron et al. 2021). The goal of this ­reorganization has been “to promote clear and consistent accountability, standardization of health services practices, greater collaboration and integration, greater capacity to recruit and retain health services personnel, and efficient delivery of health services” (Correctional Service Canada 2017, 14). This began with the establishment of the Health Services Sector, which is composed of four branches (Clinical Services, Public Health, Mental Health, and Policy, Planning, and Quality Improvement), each managed by a Director General (d g ). These branches are responsible to the Assistant Commissioner of Health Services, who is in turn responsible to Correctional Service Canada’s Commissioner of Corrections (see figure 4.1). Since 2014, as Cameron et al. report, “the line, function, and budget authorities have functioned independently from the rest of the c s c , allowing health services managers to determine health care staffing policies, and budget allocations” (2014, 44). The Office of the Correctional Investigator (oc i), established in 1973 in the wake of the Kingston Penitentiary riots, has statutory authority “to conduct investigations into issues raised by offenders related to decisions, recommendations, acts, and omissions of the Correctional Service of Canada” (Sapers 2013, 2). The oc i is completely independent of both Correctional Service Canada and the Ministry of Public Safety and Emergency Preparedness. As noted above, international “soft law” provisions have had a significant impact on the governance of health care delivery in federal correctional facilities in Canada. The u n ’s 1955 Standard Minimum Rules for the Treatment of Prisoners have been revised by the u n to meet modern standards, and, in 2015, the u n General Assembly ­formally adopted these rules, commonly referred to now as the “Mandela Rules.” These rules were also informed by the International Covenant on Civil and Political Rights and the Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (Peirce 2018, 271), as well as the w h o ’s 2003 Moscow Declaration, which asserted that both public health care systems and

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14 Community Correctional Facilities Key  Service  Payment

5 Regional Treatment Centres (some in-house H CPs)

Provincial/ territorial health care services

43 correctional facilities (in-house nurses and psychologists) Regional Medical Advisory Committees

Regional Headquarters (5 regions)

Mental Health Branch Public Health Branch Clinical Services Branch Policy, Planning, and Quality Improvement Branch National Medical Advisory Committee

Health Services Sector (Assistant Commissioner of Health Services)

F P T Heads of Correction Working Group on Health and Mental Health

Correctional Service Canada (C S C ) (Commissioner of Corrections)

Federal Government (Ministry of Public Safety and Emergency Preparedness) Figure 4.1  Health services provided under Correctional Service Canada

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correctional facilities should bear equal responsibility for health care provided in prisons (Webster 2013a). Many of the provisions in these documents target the use of “administrative segregation” (solitary confinement) and overcrowding. Other provisions include stipulations for confidentiality, prisoner autonomy in decision-making, and the clinical independence of health care providers in the treatment of prisoners. While the rules do not ignore the need for correctional institutions to ensure the security of the facility, they do challenge the assumed trade-off between prisoner rights and institutional safety (Peirce 2018, 267). Two provincial cases determined at the Supreme Court level (Ontario in 2017 and British Columbia in 2018) found that sections of the ccra were unconstitutional due to the way in which solitary confinement was enacted. In the process of amending the ccra to address administrative segregation, other aspects of health care governance were also revised to bring them into better alignment with the Mandela Rules. One key aspect of these 2019 amendments focused on the tension between the correctional and medical functions that had been apparent from the establishment of Kingston Penitentiary in 1835 through to twenty-first-century correctional institutions. As the Correctional Investigator explained, “Health care personnel working in federal penitentiaries are employed by Correctional Service Canada not the Health Ministry … The crux of the matter boils down to the fact that role conflicts and misunderstandings between health care and custodial staff are common and everyday occurrences. Examples abound: ­population movement schedules determine health care clinic hours; when or if an inmate’s medical escort takes place is dependent on staffing levels; who provides care or how it is provided in a prison setting is not a matter of patient choice” (2018, 18). Health care providers, both those employed by csc and those ­providing contractual services to csc, could have their clinical decisions overruled or altered by non-medical correctional staff. Physicians might be expected to violate patient confidentiality for security reasons. The parameters for health care providers’ behaviour were unclear, and given prison functions, security tended to trump other concerns (Iftene and Manson 2013). Section 86.1 of the ccra now clearly protects the professional autonomy and clinical independence of registered health care professionals, supports these professions’ promotion of patient-centred care and patient advocacy, and endorses decision-making based on the appropriate medical criteria. A second focus in the 2019 amendments

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to the ccra is support for offenders in navigating their rights and responsibilities related to health care. These include a new patient advocacy service for health care (section 89.1) and the establishment of an independent external decision-maker to adjudicate disputes between the correctional facility and health services, particularly regarding the use of “structured intervention” (section 37.6). It is to date unclear how effective these reforms will be. As the Correctional Investigator noted in his 2020 report, despite the articulation of patient advocacy and professional autonomy, both are still delivered under the aegis of Correctional Service Canada: “The fact of the matter is that Correctional Service Canada’s Health Services is not fully independent from Correctional Service Canada operations. At the very least, full clinical independence would require prison health care staff to be employed by the provincial health body or the national health authority” (2020, 11). Moreover, lack of access to services or medicines is not solely an issue of governance, but also one of staff shortages (John Howard Society 2016, 12). A survey of Correctional Service Canada health services staff in 2017 found that only half felt that the new health services governance structure had resulted in greater standardization. Around 40 per cent thought that there were improvements in accountability, clearer roles, and more integrated delivery; and only 10 per cent believed that the changes had led to an improved ability to recruit and retain personnel (Correctional Service Canada 2017, 115).

4.4 P rov is io n a n d D e l ivery of S ervi ces The health care services provided under the auspices of Correctional Service Canada incorporate what would normally be included as Medicare services by provincial governments, such as medical assessment and diagnostic and treatment services, as well as mental health interventions, discharge planning, and public health (educational) services. In 2009, a National Advisory Committee on Essential Health Services was formed to ensure consistency in the scope and quality of services provided by Correctional Service Canada. The Committee’s guidelines are set out in the National Essential Health Services Framework. Any essential health services outlined in this framework can be accessed via direct request by an inmate (CD800 requires requests by inmates to be dated and a response provided within fifteen days), by referral by Correctional Service Canada staff, or by an inmate visiting an institution’s health care centre during drop-in

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hours, where applicable. Health care services in most correctional facilities are generally provided by nurses, psychologists, and clinical social workers employed directly by Correctional Service Canada. Consultations with physicians, psychiatrists, and other health care professionals in c­ orrectional facilities are with contracted providers and “are p ­ re-booked according to need and institutional operational requirements” (Correctional Service Canada 2015, 4). These providers generally visit the facilities two or more times weekly (Iftene and Manson 2013). Major surgeries and specialized treatments are provided in community hospitals or clinics. The use of private clinics for health services for inmates is, unlike with workers’ compensation, strictly prohibited. The Framework also establishes the general principle that health services “must respect gender, cultural, religious and linguistic differences, and be responsive to the special needs of women, Aboriginal peoples, p ­ ersons requiring mental health care and other groups” (1). The definition of “essential services” within federal correctional facilities is complex. Because federal facilities are dependent on ­provincial health care systems for many services, the National Essential Health Services Framework stipulates that health care provided under the auspices of Correctional Service Canada “should not normally exceed” the level of services provided at the provincial level (Correctional Service Canada 2015, 6). Given that health care services can differ widely across provinces, the Framework also sets out appendices governing the provision of medical, dental, diagnostic, mental health, and public health services in order to provide some consistency across the country. Certain services that are not automatically approved can also be accessed by a process of special authorization (for example, manual wheelchairs, walkers, canes, and crutches are automatically provided when needed, while electric wheelchairs or motorized scooters can be requested through special authorization). Going beyond the floor established by the c h a , “essential” dental care, defined as services that relieve pain and infection, manage disease, and provide education on preventative oral hygiene, is also provided (21). For prescription medications, Correctional Service Canada has endorsed the 2020 Canadian Academy of Psychiatry and the Law guidelines on prescribing in correctional facilities. The Framework is less forthcoming on the determination of “reasonable access to nonessential health services” (Appendix D, for example, simply notes that “reasonable access must be provided to non-essential mental health services for inmates” [37], without further specification).

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The number of those admitted to federal prisons with a history of substance use is relatively high. Offenders often enter the correctional systems in poor health and have had limited contact with the health  ­system (Office of the Correctional Investigator 2015). Incarceration can thus be an opportunity to receive treatment for existing conditions, or public health education regarding behaviour that could lead to worse health outcomes. 80 per cent of male o ­ ffenders struggle with addiction or substance abuse (ibid., 3), while 30 per cent of men and 21 per cent of women report some lifetime injection drug use (Office of the Correctional Investigator 2019, 1). Even more (53 per cent of men and 38 per cent of women) report shared needle use in prison. For this r­ eason, and with no little controversy, Correctional Service Canada launched a Prison Needle Exchange pilot program in 2018, followed by an Overdose Prevention pilot program at Drumheller in 2019. Hepatitis C is also a major concern. The ­introduction of a new class of hepatitis C drugs (including treatments such as Harvoni and Sovaldi) presented both an opportunity and a dilemma: the drugs are an effective treatment, but they cost $67,000 per patient per treatment (12 weeks). For the 2,500 patients eligible for treatment, this meant an  unanticipated treatment cost of approximately $100  ­million (Webster 2016). In ­2012–13, before these drugs were used in federal institutions, expenditures on hepatitis C drugs amounted to $3.3 million, while expenditures on all non–­hepatitis C medication was $16.8 million. By 2015–16, after the new hepatitis C drugs had been in use for three years, the cost of hepatitis C medication ($17.1 million) exceeded the cost of all other medications ­combined ($17 million) (Correctional Service Canada 2017, 122). The number of people who have been treated for and cured of hepatitis C in federal facilities remains unknown (Kronfli et al. 2019). There remains the question of whether inmates receive the same access to c h a -insured services that other Canadians receive under their p t plans. Full-time health care staff within penitentiaries are generally nurses, and in only five of Correctional Service Canada’s forty-three prisons are nurses available twenty-four hours a day, seven days a week. Prison advocacy groups have expressed a concern that qualified staff may not be available to ensure that inmates are transferred to hospitals in a timely manner for treatment (Burke 2021). They also argue that access to community services is limited because “it costs money to get prison guards to escort women to an outside appointment which is why they’re actively discouraged from arranging outside appointments” (Miller 2013, E250). Access to medications

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can also be curtailed because inmates are often perceived as “attentionseeking and drug-seeking” (ibid.). Some of the other health-related complaints made by offenders address the length of time before they can access certain procedures such as surgeries, although wait times for specialist services for offenders are the same as those for other residents of the province in which the federal prison is located (Correctional Service Canada 2017). Mental health provision is a major component of health care in federal penitentiaries. The Correctional Investigator has asserted that “Canadian penitentiaries are becoming the largest psychiatric facilities in the country” (Vogel 2010). Many inmates enter correctional facilities with existing mental health conditions, which can be exacerbated by disciplinary measures such as segregation and isolation. An f p t Working Group on Mental Health was created in 2008 to establish the essential services and supports needed for inmates with mental health needs. The 2019 amendments to the ccra were designed to address the utilization of solitary confinement, and in 2017 $58 million was budgeted to Correctional Service Canada to divert those with mental health conditions away from “administrative segregation” to new “structured intervention” units designed to provide security while allowing inmates to receive needed therapeutic services. These legislative amendments are to be supported by the provision of 24/7 health provider staffing in all five male maximum-security facilities, as well as all five women’s institutions, in order to increase staffing at Regional Treatment Centres to the level provided at community forensic ­psychiatric hospitals (Cameron et al. 2021). There is, however, some ­criticism regarding the practical implementation of the changes (Office of the Correctional Investigator 2020) and the extent to which they are a substantive shift away from existing practices. Most mental health care, both prescription-based and counsellingbased, is provided within the main correctional facilities. Those with more severe mental health conditions may be transferred to Regional Treatment Centres (run by Correctional Service Canada), or to ­provincial mental health facilities. “Intermediate” mental health services were not available in Correctional Service Canada institutions prior to 2015 (Correctional Service Canada 2017) but, by 2019, each region had one maximum-security facility equipped to provide intermediatelevel mental health care (Office of the Correctional Investigator 2019). Correctional Service Canada also operates five Regional Treatment Centres that provide inpatient mental health care, as well as four Indigenous healing lodges within larger institutions.

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4 . 4 F u n d ing Similar to health care provided to members of the Canadian Armed Forces, health care for inmates is funded through a federal department separate from Health Canada. Health services for inmates in federal correctional facilities are, with the exceptions noted below, provided by the federal government through the Health Services division of Correctional Service Canada. In current dollars, the Health Services Sector’s total operating expenditure for adult ­correctional services in 2014–15 was approximately $2.23 billion, and the average daily inmate cost was $283 (Statistics Canada 2021c). Health services account for approximately 11 per cent of Correctional Service Canada’s total direct spending. Institutional health services accounted for the bulk of this spending (94 per cent), with the remainder going to community health services. Of ­institutional health ­services, $150,609,703 went to clinical and ­public health services, while $75,474,645 (one-third) was directed to mental health services. In contrast, 85 per cent of all health services provided by Correctional Service Canada in the community were for mental health services (Correctional Service Canada 2017, 120). Because of the federal Economic Action Plan 2012, Correctional Service Canada was required to reduce its spending by $295.4 million by April 2014, and the Health Services Sector consequently made cuts in areas such as dental care, methadone treatments, and accreditation training (Correctional Service Canada 2017). By 2018–19, total operation expenditures were still below 2014–15 levels (both current and constant dollars), but this could be related to the decrease in the number of inmates in federal correctional institutions, as the average daily inmate cost in constant dollars had risen from $159 to $190 over the same period of time. Non-essential health services can be accessed at the expense of the inmate requesting them. Correctional Service Canada’s Health Services Sector will assist with the coordination of these services, but inmates are responsible not only for the cost of services (including initial ­consultation fees) but also for associated escort costs (Correctional Service Canada 2015, 5). For essential services, many expenses are covered by the federal government through Correctional Service Canada. However, as many services are delivered by providers working in pt Medicare systems, the funding of health services for offenders can become quite complicated. Where such a high proportion of health

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spending in correctional facilities is directed to mental health services, the role of provincial health systems becomes especially pronounced. Even prior to Confederation, “lunatic convicts” had become a separate class of prisoners, often shuttled between Kingston Penitentiary and the “provincial asylums,” or what eventually became known as provincial psychiatric hospitals (Dyck 2011). With the jurisdictional division between prisons for serious offenders and mental health facilities becoming more formal, the attempt to move offenders with serious mental health conditions from federal to provincial facilities, and vice versa, became far more acrimonious. Joliffe (1984) recounts the situation of a murderer serving a sentence of life imprisonment in Alberta and Saskatchewan penitentiaries: In November 1936 the penitentiary medical officer declared that the convict was insane and should be sent to a mental ­hospital. He did not belong in a penitentiary. Not only was it an undue hardship for him, but it was also an injustice to the prison authorities and to other convicts. However, the Alberta government refused to accept the convict into its care. It cited the severe over crowding of its two provincial mental hospitals, and its belief that these institutions should not be expected to provide facilities for the care and the treatment of the criminally insane. The federal Government claimed that the province was obligated (because health care was a provincial responsibility under the British North America Act of 1867) to care for insane persons, regardless of whether or not they were criminals. However, the provincial authorities simply ignored this ­declaration, and the convict remained in the Saskatchewan Penitentiary. (151) These frictions existed through much of the twentieth century. Then, in 1975, the National Health Services Advisory Committee recommended that Regional Psychiatric Centres be placed under the ­jurisdiction of the federal Department of Health and Welfare, to which the Solicitor General responded that it was the provincial authorities, not the federal Department of Health, “who were responsible for the direct delivery of these services” (ibid., 212). Since 1975, however, Correctional Service Canada has established numerous psychiatric treatment units in its facilities, in addition to its Regional Treatment Centres.

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For offenders living in the community, the provision of health services can be more complicated. Correctional Service Canada runs Community Correctional Centres (c c c s), which provide housing for offenders on various types of release, as well as those on full parole, statutory release, or long-term supervision. For those living in c c c s, Correctional Service Canada is responsible for providing health care services. However, federal offenders (e.g., on day parole) may also live in Community Residential Facilities (crfs), or half-way houses, which are run by non-governmental agencies who have contracts with Correctional Service Canada. Individuals living in crfs, even if they are on day parole from federal facilities, are under provincial jurisdiction for health services. Nonetheless, while Correctional Service Canada is not obligated to fund health services for those in crfs, it may make exceptions (which must be approved by the Regional Health Services director) (Correctional Service Canada 2015, 5).

4 . 5 C h a l l e nges The health care system within the federal corrections service faces three kinds of challenges. The first is health human resources. In 2013, the Office of the Correctional Investigator reported that almost a third of all positions for psychologists in the federal corrections service were either vacant or underfilled, while the vacancy rate for all health care positions was 8.5 per cent (Office of the Correctional Investigator 2013, 16). In the Regional Treatment Centres, which serve as psychiatric facilities, the overall ratio of clinical staff to beds “is well below expected or acceptable standards for in-patient psychiatric hospital care” (Office of the Correctional Investigator 2018, 21). Understaffing means that inmates may have insufficient access to health services while in correctional institutions, but it may also mean that offenders coming into a facility may be denied access to prescribed medications until they are able to be assessed by a physician (John Howard Society 2016). Professional recruitment and retention are challenging due to a difficult and complex work environment, lower pay compared to community practices, scope of practice issues, tension with corrections officials over decision-making, inter-provincial licensing, and accreditation difficulties. Following the 2019 amendments to the c c r a , however, Correctional Service Canada committed to mental health staffing enhancements (Cameron et al. 2021, 44).

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The second challenge continues to be the health profile of federal offenders. The mental health needs of federal inmates are especially acute. In 2004, Correctional Service Canada introduced a mental health strategy, although this did not result in a formal and comprehensive strategic planning document (Service 2010). A further review in 2010 resulted in a five-point mental health strategy to strengthen mental health screening on admission, improve training, improve primary mental health care, enhance community partnerships, and build community partnerships for discharge planning (Office of the Correctional Investigator 2013). But mental health issues continue to be quite extensive in correctional facilities (and especially in women’s facilities, where 57 per cent of female offenders have mental health conditions: Correctional Service Canada 2017, 16). Since 2010, intake assessment for mental health has been in effect, and community ­partnerships have been established to provide service continuity for offenders who have been discharged. Segregation units for solitary confinement have been redesigned as structured isolation units, although Correctional Service Canada’s Correctional Investigator has suggested that they may have “little clinical value” as they continue to “serve more as a segregational diversion strategy than enhancement of mental health treatment capacity” (Office of the Correctional Investigator 2019, 9). Substance abuse and the diseases spread by shared needle use continue to pose challenges in federal penitentiaries. Inmates are 100 times more likely than the general population to suffer from hepatitis C, and the incidence of hiv in prisons is also considerably higher than in the general population (Cooper 2021). And, while needle exchange programs have recently been introduced in penitentiaries, issues of confidentiality, stigma, and access limit the program’s effectiveness (ibid.). Nonetheless, the prevalence of hepatitis C in federal correctional facilities has declined considerably due to screening, testing, education, and the availability of new treatments (Smith and deSouza 2018). At the same time, c ov i d -19 has posed new problems for Correctional Service Canada. By May 2021, over 1,500 inmates had been infected, and 5 died from the virus (Pyrooz, Ricciardelli, and Bucerius 2021). While hundreds of inmates were released in the face of institutional outbreaks (during 2020, the total inmate ­population in the federal in-custody population dropped by 1,319, or 10.5 per cent: Office of the Correctional Investigator 2021), those

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serving life sentences were not eligible for parole and remained incarcerated (Richardson 2020). Vaccination for inmates began in January 2021 but faced pushback by some Conservative politicians and vaccine hesitancy on the part of offenders (Beattie 2021). The health profile of those in federal correctional facilities is also changing due to the aging of the prison population. The proportion of the inmate population over fifty has now grown to 25 per cent, “the result of the combined demographic effects of a general ­population that is aging, more offenders entering prison later in life, ­offenders staying longer in prison before release and the accumulation of long-serving, indeterminate or life-sentenced offenders” (Office of the Correctional Investigator 2015). A new wrinkle in meeting the needs of a cohort aging in prison has been the necessity to establish a policy for those requesting medical assistance in dying (Iftene and Downie 2020). By 2020, three individuals in the federal corrections system had received ma id (Office of the Correctional Investigator 2020). The third challenge is establishing and maintaining continuity of care with the community. This requires the integration of services provided both in-house and in the community so that they provide the coordination of consistent care required by a high-needs population. It also necessitates a longitudinal system of access that follows offenders from the point of admission to release into the community (Fegel and Bouchard 2013; Ontario Expert Advisory Committee on Health Care Transformation in Corrections 2019). This concern was addressed in principle in the 2019 reforms to the ccra. But the implementation of a more integrated system of care is not simply a matter of coordination at the interface of institutional and community care, as larger issues of federal and provincial jurisdiction have an impact on how federal correctional institutions can provide services. For example, inmates in regional correctional facilities who are unable to consent to treatment are subject to provincial mental health legislation governing involuntary consent, which varies across provinces and territories (Cameron et al. 2021). Jurisdictional authority also affects the recent amendments to the c c r a that provide prisoners access to advocacy services, for while regulated health care providers can inform their respective regulatory bodies (e.g., colleges of physicians and surgeons) that care may not meet professional standards, these p ­ rovincial bodies do not have authority to compel ­documents or cooperation from federal bodies (Barreira and Loiero 2021).

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Moreover, the provision of provincial health insurance cards to offenders on release from federal facilities is uneven, leading to ­problems for offenders when attempting to secure health care in the community. Problems can arise when offenders are released into the community without yet having obtained a valid pt Medicare card. Parole officers within correctional facilities assist inmates slated for release to obtain health cards; however, in some provinces and territories offenders cannot apply for a health card until after their release. An interprovincial agreement on eligibility and portability of health insurance benefits stipulates that provinces into which offenders are released have a responsibility to provide health care services even if the individual released into the community does not have a valid health card. However, as a 2017 Correctional Service Canada document notes, “offenders in some provinces did not appear to receive coverage through this agreement” (Correctional Service Canada 2017, 95). The confusion over coverage is exacerbated when offenders, when released, choose to move to a province different from the one into which they have been released. This, as with other small issues that tend to fly under the radar, can perpetuate important barriers to successful community integration and, in turn, to improved health outcomes.

4 . 6 C o n c lus i on How are access rules exercised within federal correctional institutions? On first glance, the scope of services is defined and delineated clearly: health care services funded by Correctional Service Canada are ­provided to all those within the federal prison system. Yet, as the ­discussion above has noted, in practice, the scope and quality of health care services actually available to inmates of federal correctional centres are variable and questionable. Historically, for example, p ­ risoners with serious mental health conditions were sometimes in a limbo between federal correctional institutions with little capacity to meet their mental health needs, and provincial psychiatric hospitals with little capacity to deal with criminal offenders. Even at present, federal prisoners living outside of prisons in Community Residential Facilities are expected to access p t health care systems, while those living o ­ utside of prisons in Community Correctional Centres have their health care covered by Correctional Service Canada. The breadth of services is designed to mimic pt coverage under the c ha , although, interestingly, the formal stipulation is for “essential”

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(as opposed to “medically necessary”) health care. As already noted, the concern here is generally not which services prisoners receive, but rather the conditions under which they are obliged to access them (being, by definition, in a situation where their mobility rights are constrained). Treatment for more serious conditions is often ­determined through screening within the institution (and so may be delayed); and going from correctional facilities to community treatment centres requires escort services (and so is an additional expense that institutions must factor in). Prisoners also have access to a limited range of optical, dental, and rehab goods and services, as well as to pharmaceuticals, as specified in Correctional Service Canada’s Essential Health Services Framework document. Provision of these services is similar to the supports p t s offer to their low-income ­residents. The depth of coverage is also very similar to pt health care coverage: within the specified breadth of services, care is free at point of provision. Beyond essential health care services, inmates are allowed “reasonable access” to non-essential mental health services; other non-essential health services can be accessed at the inmate’s complete expense, including “associated escort costs.” Despite these limitations, incarceration in a federal correctional facility can be an opportunity for individuals who have had little ­consistent access to health care resources to address both immediate and chronic health needs. Kouyoumdjian et al. (2018), for example, ­document “significantly elevated rates of health care utilization” by offenders during their stay in prison. Many have had limited contact with health care providers prior to incarceration (Office of the Correctional Investigator 2015; Green, Foran, and Kouyoumdjian 2016; Correctional Service Canada 2017). Access to health education in correctional facilities can have positive longer-term consequences by facilitating a greater understanding by offenders of infectious ­disease transmission and treatment, which is particularly important as most offenders will be released back into the community at some point (Correctional Service Canada 2017). To the extent that the quality of health care services, the consistency of access to health care services across the continuum from admittance to release in correctional facilities, and accountability governing the health care provided to offenders are all directly affected by the separation of “correctional health care” from the wider system of pt Medicare, a key policy question is whether health services within federal correctional facilities should be provided and governed by provincial and

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territorial health care systems rather than by Correctional Service Canada. To date, the rationale for a separate system of health care provided by correctional authorities has been that security is the first purpose of correctional facilities, and that mainstream health authorities are not equipped to deal with high-risk offenders. Historically, the kinds of health care services available in the nineteenth and early twentieth centuries were limited and minimal, and could for the most part be provided relatively easily within correctional facilities. But as diagnostics and treatments have increasingly employed more sophisticated techniques, equipment, and protocols, prison facilities rely increasingly on services provided outside of institutions, leading to problems in accessing and coordinating consistent care, quality oversight and monitoring, and information-sharing. These “poor linkages” between correctional health facilities and pt Medicare health care systems and associated extended benefit programs, argue some advocates, are reasons that health services in federal facilities should be placed under the aegis of provincial or territorial health care systems. This transfer of authority over health care from ministries of Justice to Health, they note, has already occurred in a number of countries (including Norway, France, England, Scotland, Australia, Italy, Finland, and Scotland). Half of Canada’s provinces have also transferred authority over health care in provincial institutions to ministries of Health (Ontario Expert Advisory Committee on Health Care Transformation in Corrections, 2019). The case of Ashley Miller brought these issues to public attention in 2007. Miller was a nineteen-year-old inmate at a women’s correctional facility in Kingston who strangled herself to death while under observation by Correctional Service Canada staff. This led the Correctional Investigations Officer to call for Correctional Service Canada to relinquish authority for health care in prisons (Office of the Correctional Investigator 2008). Correctional Service Canada commissioned two reports on this issue. They were published in 2010 and 2011 but were not released to the public. The Canadian Medical Association Journal acquired these reports through freedom of information requests. Both reports advised against transferring authority, ­arguing that the lack of a national health system posed an obstacle to the transfer of authority, that Correctional Service Canada officials could “lose control over psychologists,” and that “safety and security are the primary operational objectives and a strong health service environment contributes to these objectives” (Webster 2013b, E272).

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In 2021, a statement of claim was filed in Nova Scotia by the John Howard Society and by an individual plaintiff, Michael Devlin, an inmate who has served time in federal correctional centres in Renous, New Brunswick, Springhill, Nova Scotia, Millhaven, Ontario, and Cowansville, Quebec. Devlin, who has been in the federal corrections system for twenty-two years, since the age of seventeen, charged that he received substandard care while in custody, initially for lower back pain. His statement of claim argued that the physician employed by Correctional Service Canada too quickly tapered his Suboxone ­medication, then refused to provide him with another primary care physician when he refused that physician’s services. Both Devlin and the John Howard Society challenge the constitutional validity of ­section 2 of the c h a (which excludes federal prisoners), arguing that the federal government “has impermissibly legislated and acted in a core area of provincial jurisdiction over health care,” and that the ccra management of health care services for prisoners, in addition to being ultra vires, leads to a “substandard and second-tier level of health care” in violation of sections 7, 12, and 15 of the Canadian Charter of Rights and Freedoms (Devlin v. Correctional Service Canada). In sum, the formal contours of health care provision in federal correctional facilities have changed considerably over the past two decades, although there is still some question about the extent to which these formal provisions have been satisfactorily implemented in practice. The focus on correctional health care should remain on meeting the needs of its population, which are often intense and quite specific. The debate over the level and quality of care provided in federal facilities will no doubt continue, as will the tension of providing adequate health care within sufficiently secure settings. The wild card here may be the role of the courts in transfiguring the way in which health care services in federal facilities are provided.

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5 Migrants

5 . 1 In t ro ducti on While the Canada Health Act does not refer to “migrants” per se, it does, under the definition of “insured person” in section 2, exclude those who have not completed any “minimum period of residence or waiting period” required by a province before they are eligible to access insured health services. This can simply refer to those who move from one province to another. In these cases, individuals are covered by their home province during their waiting period. The ch a does stipulate that this waiting period cannot exceed three months, and many provinces note a waiting period of “up to” three months. This is because they calculate the waiting period as extending to the first day of the third month following arrival so that coverage will always begin on the first of the month for everyone. The waiting period (of up to three months) also applies to permanent residents who are new to Canada, and who are advised to rely upon private health insurance during this time. Once the waiting period has expired, there is no distinction between permanent residents and Canadian citizens regarding access to insured health services. The term “migrant” is fairly imprecise. The common understanding of “migrant” is “a person who moves away from his or her place of usual residence, whether within a country or across an international border, temporarily or permanently, and for a variety of reasons” (United Nations International Order for Migration 2021), although this general term has no legal force. However, there are many subcategories of migrants subject to more precise legal definitions. These can include immigrants, temporary foreign workers, undocumented

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migrants, refugees, victims of human trafficking, and even international students. For some categories of migrants, the access to publicly insured health care is very straightforward: they either are fully eligible for these services (e.g., permanent residents) or they are not (e.g.,  ­tourists). This chapter will focus specifically on two of these subcategories – migrant workers and humanitarian migrants (formerly called political refugees) – where access to health care is far more complex. The discussion of migrant health care in Canada is also complex because of the constitutional framework that informs it. Under ­section 95 of the 1982 Constitution Act, immigration is an area of shared responsibility between provincial and federal governments. Because of the unique nature and requirements of each region, the specific immigration provisions are somewhat different for each jurisdiction. At the same time, several federal organizations may have to coordinate their activities for certain categories of migrants: while the Department of Immigration, Refugees, and Citizenship Canada (ircc) manages and assesses visa requirements, for example, Employment and Social Development Canada (e sd c) is the lead department for the Temporary Foreign Worker Program, and will assess the requests made by employers to bring in foreign workers. The Canadian Border Services Agency (cbsa) then processes these applications at Canadian ports of entry (see Kachulis and Perez-Leclerc 2020). Yet the health care systems that migrants access operate under the aegis of provincial/territorial (p t ) governments, and each jurisdiction has its own rules regarding eligibility. For example, some provinces permit migrant workers to access health care services on arrival; others require them to wait up to three months before they are insured by the province or territory. Some provinces will only insure temporary foreign workers if their work permits show that they will be resident for a certain period of time (e.g., six or twelve months). Moreover, the ­provinces and territories are responsible for both the health and safety legislation that protects the health of migrant workers, and the workers’ compensation health services for which they may be eligible. Yet there are also federal labour standards (e.g., the right to a safe workplace) that govern safe working conditions for temporary foreign workers. This chapter will examine the health care systems for two groups of migrants in more detail. The first part discusses workers who arrive in Canada for the purposes of employment, and who do not have any claim on permanent residency in the country (although the link between temporary employment and permanent residence in some

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cases is actually encouraged by some Canadian immigration programs). The second part will look more closely at those who, for a number of possible reasons, claim humanitarian grounds for residency in Canada. One key theme of this chapter is the frequent disconnect between the formal provision of services and the ability of migrants to access these services in practice.

5 . 2 T e m p o r a ry F o rei gn Workers 5.2.1 Background By 2017, temporary foreign workers constituted 2.9 per cent of the total workforce in Canada (approximately 550,000 individuals). However, these workers tend to concentrate in certain occupations and in particular regions of the country. Temporary foreign workers make up almost 42 per cent of the agricultural workforce in Ontario but less than 30 per cent in Quebec, British Columbia, and Nova Scotia (Lu 2020). As table 5.1 illustrates, there is considerable variation across provinces and territories in the number of temporary foreign workers employed. The programs covering foreign temporary workers can be divided into two main categories. The first (generally governed by the International Mobility Program) covers highly skilled or high-profile individuals whose entry is considered to be “advantageous” to Canada, and who may be involved in international reciprocal agreements (including top athletes or performers, reporters, expert witnesses, civil aviation inspectors, and foreign government officials). The second category addresses lower-skilled occupations that fill a gap in Canada’s lower-skilled and lower-paid labour market. A key difference between the first category and this one, referred to as the Temporary Foreign Worker Program (tfwp), is that the tfwp requires a Labour Market Impact Assessment (l m i a ). This measure, introduced in 2014 to address a concern that foreign workers were taking jobs from Canadians, is a process that verifies that there is a labour gap that needs to be filled, that no Canadians or permanent residents are ­available to fill these positions, that the salary offered is consistent with the average for the occupation, and that the program is not being used in the context of a labour dispute. Many of the concerns that have been expressed regarding health care coverage for foreign ­temporary workers largely focus on this second group.

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Table 5.1 Temporary Foreign Worker Program work permit holders by province/territory of intended destination, 2021 Newfoundland Prince Edward Island Nova Scotia New Brunswick Quebec Ontario Manitoba Saskatchewan Alberta British Columbia Yukon Northwest Territories

260 910 1,635 1,920 20,980 24,560 810 580 4,820 17,020 75 20

TOTAL

73,640

Source: https://open.canada.ca/data/en/data set/ 360024f2-17e9-4558-bfc1-3616485d65b9/resource/ 0f8ecf8a-016c-49d1-a62d-259a7fd2bb7d?inner_ span=True.

This lower-skilled category, in turn, has three separate streams. The oldest of these, the Seasonal Agricultural Worker Program (sawp), was established in 1966 as a bilateral program between Canada and Jamaica. It has since expanded to include Mexico and ten other Commonwealth Caribbean countries. The applicants are selected by the home country, are limited to eight-month residencies, and must be in primary agricultural industries (generally picking vegetables, tree fruit, grapes, nuts, berries, and greenhouse or nursery crops). In 2019, an Agri-Food Immigration Pilot was established to support the meat processing industry and year-round greenhouse production. In this program, workers can apply from any country, and can stay in Canada for up to twenty-four months. The second stream is caregiving, where temporary foreign workers accounted for 9.8 per cent of “private household services” (generally live-in caregivers) in Canada (Lu 2020). A Canadian program aimed at live-in caregivers was established in 1981, and was subsequently divided in 2019 into sub-streams for child care and for those individuals in high need of medical care.

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A third stream is for undefined low-skilled labour. Canada established a pilot program for lower-skilled occupations in 2002 to meet the needs of short-term labour shortages (e.g., in food processing, construction, and transportation). In addition to these three streams, there is an array of province- or territory-specific bilateral initiatives to meet specific regional needs (e.g., seafood processing in the Atlantic provinces or construction in the Greater Toronto Area). 5.2.2 Provision and Financing of Services Health coverage for temporary foreign workers varies from province to province. Migrant workers with a valid permit are generally ­eligible for full coverage under provincial or territorial health plans, but specific eligibility conditions vary across provinces. Certain provinces will only cover foreign workers whose work permits are for a minimum of six months; others require a minimum of twelve. Those workers whose permits are for less than six to twelve months may be required to have private health insurance. Some provinces will provide coverage to workers on arrival in the province; others require a three-month waiting period before coverage commences. Under the terms of the t f wp, sponsors of foreign workers must ensure that workers are enrolled in the appropriate provincial health insurance plan, and if there is a waiting period (usually three months), they must also ensure that workers obtain private health insurance until they become eligible for provincial public health insurance. (This responsibility of sponsors does not apply to the high-wage stream of temporary foreign workers.) Employers must provide this insurance coverage up front. In the case of sawp workers arriving from Mexico, employers can recoup their expenses by deducting $1.05 per day from each worker’s wages for this purpose. Employers may also remit the insurance premiums they pay on workers’ behalf every month to the insurance company engaged by the Government of Mexico, which will cover the balance owing to the employers (Human Resources and Social Development Canada 2021a). For sawp workers arriving from Caribbean states, the terms of the contract set out by the federal g­ overnment merely specify that sponsors have an obligation to ensure that their workers have health insurance, and that they can deduct the cost of any necessary private health insurance (where there is a waiting period before workers can access the provincial health care system) from workers’ wages (Human Resources and

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Private health care insurance for workers in provinces with a waiting period before being ­eligible for PT publicly insured services, or for supplementary insurance held in conjunction with Medicare

Home governments/ employers/ employees

Workers’ Compensation– funded services (private or ­public) for occupational i­llness or injury

PT Medicare (may be limited to those with a contract of a specific duration, depending on province or territory) Key  Service   

Employers

 Payment

Figure 5.1  Provision and financing of health services for migrant workers

Social Development Canada 2021b). The streams of insurance covering temporary foreign workers are set out in figure 5.1. However, where private insurance is provided, it is usually only for non-occupational health coverage. This is because, as noted in ­figure 5.1, temporary foreign workers are also covered for workrelated health services under provincial workers’ compensation plans (see chapter 2) as soon as they begin their period of employment. Again, eligibility for provincial workers’ compensation coverage may vary across provinces (e.g., be limited to foreign workers holding permits of at least six months’ duration). Workers are generally ­covered for workplace injury or illness even if employers have not registered with workers’ compensation agencies and have not paid premiums. However, in some provinces and territories, employers do not need to offer foreign temporary employees workers’ compensation benefits, although in these cases this stipulation must be written into the employment contract (Government of Canada 2021). The status

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of workers’ compensation claims for undocumented migrant workers is less clear (Sikka, Lippel, and Hanley 2011; Guthrie and Quinlan 2016). In practice, however, workers’ compensation boards do not normally ask about immigration status, nor do they report this status to the federal Department of Immigration, Refugees, and Citizenship (Sudbury Workers’ Centre n.d.). Excepting the ambiguous area of workers’ ­compensation claims, undocumented migrants are excluded from all government public health care services (Chen 2020). Landry et al. (2021) estimate that there are from 200,000 to 500,000 undocumented migrant workers in Canada. 5.2.3 Governance and Regulation To the extent that migrant workers for the most part access provincial health services, the regulation of these services is covered by the respective provincial and territorial legislation governing them. However, the eligibility criteria to access these services, as well as the rights to health care that temporary foreign workers can demand, are determined first at a federal level through the Immigration and Refugee Protection Act and its corresponding regulations. Service Canada conducts inspections for the Temporary Foreign Worker Program. During the covi d -19 pandemic, the Emergencies Act and the Quarantine Act were also applied to foreign temporary workers. At a provincial level, migrant workers are also subject to acts and regulations governing occupational health and safety, workers’ compensation, labour standards, and human rights (Sultan 2021). 5.2.4 Challenges The key challenges in the way that health care is provided to migrant workers are largely informal, but are no less serious because of this. The formal provisions governing access to health care for temporary foreign workers are generally wide-ranging and do provide, on paper, a level of health care coverage comparable to that enjoyed by Canadian citizens. The problem is that many de facto barriers exist which can make it difficult for migrant workers to take advantages of these services. As Basok (2004) notes, the existence of legal frameworks defining rights does not guarantee that these rights will be exercised, as “some groups of migrants lack the necessary knowledge, skills, or support to be able to claim their rights” (48). As temporary foreign

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workers generally have to undergo pre-departure medical screening, the overall health of incoming migrant workers is usually quite good (McLaughlin 2010). Most of the health conditions experienced by migrant agricultural workers are musculoskeletal as their work is strenuous and highly repetitive, and accidents are not uncommon. Exposure to agricultural chemicals (such as pesticides or fertilizers) and extreme climatic conditions also lead to medical issues for these workers. Other conditions include those related to sexual and reproductive health (e.g., st i s) and mental health (Pysklywec 2011). Formal coverage of health care services, as noted above, has been established as part of the contractual process of employing migrant workers so that at no point do employees lack health coverage. Nonetheless, the ability of temporary foreign workers to find health care providers when needed can be limited for a number of reasons. In the first instance, barriers to accessing health care services exist due to the very nature of employment: agricultural workers work long hours with little time off, which makes scheduling appointments difficult. They generally live in rural areas, and transportation to medical clinics, especially for non-urgent care, can be a major impediment. Language barriers may also exist, and workers needing health care services may not be able to find anyone to provide translation (McLaughlin 2010; Otero and Preibisch 2010; Salami, Meharali, and Salami 2015). Moreover, many workers may have limited literacy skills: in the sawp program, for example, workers with low literacy are deliberately selected by their home governments because of their limited employment opportunities domestically (Basok 2004). At the same time, health care coverage for migrant workers can be a complicated patchwork of different programs (e.g., in some provinces they may have three months of private coverage for non-occupational health-related matters; ­workers’ compensation for occupational health; public health care services after the initial waiting period; and possible private supplemental health insurance for prescriptions, physiotherapy, and other services, usually arranged via their country of origin). Unsurprisingly, many workers are confused about the breadth of their coverage and how they can access the actual services for which they are covered. Studies examining the provision of health care for migrant workers have highlighted many other issues that lead to problems or delays in accessing health care. While employers are responsible for securing public health insurance cards for their workers according to eligibility requirements stipulated by the issuing province, surveys of workers

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have documented the claims of some workers that they were not given these cards (McLaughlin 2010; Hennebry, McLaughlin, and Preibisch 2016; Cole et al. 2019). Some clinics simply refuse to take patients with only private health insurance, and even clinics that do generally require patients to pay up front and to wait for reimbursement (Kuile et al. 2007; Otero and Preibisch 2010; Preibisch and Otero 2014; Hennebry, McLaughlin, and Preibisch 2016). Because of the relatively isolated nature of the employment of many foreign temporary workers, they often depend on employees and supervisors who may or may not respond immediately or at all to workers’ health concerns (Preisbisch and Otero 2014). The power imbalance between employers and employees is often cited as a major impediment to accessing health care. Because agricultural workers in particular mainly have “closed” work permits, which are linked to one specified employer, and because they can be repatriated by their employer if they are unable to perform the work specified in their employment contract, many workers are unwilling to request access to health care, or to insist on it if their employer seems disinclined to facilitate their request (Basok 2004; McLaughlin 2007; 2010; Salami 2015; Chen 2017). Sanctions do exist for employer violations, but there is little systematic monitoring as violations are only triggered by complaints. Again, workers are cautious about whistle-blowing because they fear for their employment (McLaughlin 2010; Caxaj and Cohen 2019; Landry et al. 2021). A more systematic impediment to health care provision exists in the use of workers’ compensation for temporary migrant workers. Because medical reports are an essential component of workers’ compensation claims, and because the investigation of whether injury or illness can be traced back to conditions of employment can be time-consuming, migrant workers can be repatriated (either due to inability to work, or due to the completion of their work contract) before the process of documentation can be completed, thereby undermining legitimate claims to health care services provided by the provincial workers’ compensation systems (Hennebry, McLaughlin, and Preibisch 2016; Cole et al. 2019). In areas such as Ontario’s Niagara Region, where there is a critical mass of foreign agricultural workers, some health care centres have established regular clinics targeted for migrant workers, held at hours convenient to them, in locations accessible to them, often with translation services, and with health care providers who understand both the

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health conditions workers are susceptible to and the programmatic structure governing health care for temporary foreign workers (Basok 2004; Hennebry, McLaughlin, and Preibisch 2016). However, in regions where migrant workers do not constitute such a critical mass, the provision of health care services can be more problematic. The health status of many migrant workers has also, unsurprisingly, been affected by covid-19. Because of the importance of these workers to agricultural production in Canada, the Temporary Foreign Worker Program continued to issue temporary work permits for agricultural workers even as Canada restricted international travel. The Government of Canada also provided $50 million to support the costs of quarantine for incoming workers (Landry et al. 2021). By June 2021, over 2,400 farm workers had contracted the disease, resulting in three deaths (Mojtehedzadeh 2021). Forty-three cases of c ov i d -19 amongst migrant workers occurred at a greenhouse in Kelowna (Haley et al. 2020). Meat-packing industries have also seen significant outbreaks of covid-19: in Alberta, for instance, the Cargill meat processing plant in High River alone was linked to over 1,500 c ov id-19 cases (Chen 2020). Where workers are labouring in close proximity (especially indoors), they face a higher risk of transmission. They also tend to live in housing units that are small and cramped, sometimes with limited ventilation, and are transported to their places of employment in crowded vehicles (Landry et al. 2021). In response to ­c ovid-19, some provinces (notably Ontario and British Columbia) expanded health insurance coverage for these workers, including such measures as extending coverage to foreign temporary workers with work visas of less than six months, or eliminating the three-month waiting period (Chen 2020). However, a lack of communication regarding this extended coverage meant that some health care providers continued to bill patients directly (Doyle 2020).

5.3 H u m a n ita r ia n M ig r ants (Refugees ) 5.3.1 Background The issue of health care coverage for refugees has been highly political, and has been subject to significant program changes over the past decade. The key mechanism of health insurance for humanitarian migrants is the Interim Federal Health Program (i f h p ), which was established by Ottawa in 1957. However, the extent and application

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of this federal program must also be considered in relation to p t Medicare programs under the c h a’s broad principles. i f h p health coverage is “limited and temporary,” and is meant to provide a form of “bridging” coverage for refugees until they become eligible for provincial health insurance (or are obliged to leave the country). The scope of the ifhp was designed to be similar to the Medicare coverage generally provided by p t governments, including inpatient and ­outpatient hospital services; services provided by licensed health ­professionals, such as physicians and registered nurses; and laboratory, diagnostic, and ambulance services. However, the ifhp also includes supplemental benefits that go well beyond the cha floor. These supplemental benefits include coverage for vision and dental care; home care and long-term care; allied health care practitioners (such as clinical psychologists, psychotherapists, speech language therapists, and physiotherapists); assistive devices, medical supplies, and equipment; and prescription drugs. Coverage provided by the i f h p generally ends when an applicant becomes a  provincial or territorial resident and therefore eligible for p t Medicare and extended health benefits; when they leave Canada; or when their asylum claim is withdrawn, abandoned, or rejected. The ifhp also provides coverage for limited medical services for refugees before they arrive in Canada. This generally includes an Immigration Medical Exam, vaccinations, outbreak management, any medical support required for safe travel to Canada, and the follow-up ­treatment of any conditions that could make an individual inadmissible to Canada. As described in the following section, there are several categories of refugee applicants. In general, however, there are two overarching categories. “Resettled refugees” are deemed to be refugees under the 1951 Geneva Convention relating to the Status of Refugees1 and who are selected to come to Canada while they are living abroad. “Refugee claimants” (or asylum seekers) are those who request refugee   1 “[A] person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion, is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country.”

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status upon arrival at a Canadian port of entry. The number of refugees coming to Canada shifts over time, and has been influenced by geopolitical events (leading, e.g., to an influx of Syrian resettled refugees in 2016), policy choices (such as the 2012 revisions to the ifhp), and other unexpected events (most notably the closing of borders because of covid-19). In 2019, Canada resettled 29,950 refugees, its highest annual resettlement number to date (Immigration, Refugees, and Citizenship Canada 2019). In addition to these resettled refugees, 58,378 refugee claimants filed for formal refugee status in 2019 (Immigration and Refugee Board of Canada 2021). Of this number, 25,034 were accepted and 13,718 were rejected, with the remainder abandoned, withdrawn, or pending. The issue of what formal entitlements refugees to Canada can claim has been politically volatile, and health care coverage has played a major role in this debate. In April 2012, the Conservative government under Stephen Harper announced sweeping changes to the i f h p. Access to health services became a complex calculation depending on an individual’s source of sponsorship, country of origin, and status of claim. Certain categories of humanitarian migrants, as of June 2012, no longer received either insured health services that were similar in nature to those provided by provinces and territories, or supplemental benefits (such as prescription medicine). Rather, they could only receive hospital, physician, diagnostic, or ambulance services for conditions “of an urgent or essential nature.” Medications (such as vaccines) would only be provided if needed to prevent or treat a disease that could pose a risk to public health or safety. The 2012 changes to the i f h p also incorporated the category of “Designated Countries of Origin” (dco) that had been introduced in the 2010 Balanced Refugee Reform Act. These “designated” countries were determined to be “safe”; and refugees from these countries, along with refugees whose claims were refused, abandoned, or withdrawn, were not insured for any services at all unless they were required to prevent or treat ­conditions posing a risk to public health or a concern for public safety (Barnes 2012; Kondro 2012; Harris and Zuberi 2015; Enns et al. 2107). For this group, neonatal services, emergency care such as for heart attacks, and chronic health conditions that could deteriorate into acute conditions if untreated (such as diabetes) were not covered. Government-assisted refugees were still considered to be permanent residents upon arrival, and as such were still eligible for pre-2012 ifhp coverage until they had access to p t health insurance.

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As Sheridan and Shankardass (2016) recount, Harper justified these measures on three counts: first, that non-Canadian citizens should not be given more substantial health benefits than Canadians themselves enjoyed. Stated Minister of Citizenship, Immigration, and Citizenship Jason Kenney, “we do not want to ask Canadians to pay for benefits for protected persons and refugee claimants that are more generous than what they are entitled to themselves” (Kondro 2012, E487). At issue was the supplemental insurance (limited vision, dental, equipment, and prescription benefits) that is not included as part of universal Medicare. However, each jurisdiction does provide a certain level of additional insurance to their inhabitants in low-income categories, and, given that refugee claimants are generally in a similar category, even the supplemental benefits did not exceed the level of insurance provided to Canadians in similar circumstances. A second justification for the change in the ifhp was the concern that too many “bogus claims” were being made by ineligible refugee claimants. As the ifhp had covered refugee claimants until their claims were approved or rejected, the Conservative government expressed concern that too many people were taking advantage of these benefits. To this end, the government referenced the distinction it had made in its 2010 legislation between “Designated Countries of Origin,” which it considered to be “safe” states, and non-Designated Countries of Origin, where claims of persecution were deemed to be more likely. Individuals coming from Designated Countries of Origin were on these grounds denied all medical insurance unless they required treatment for a condition that would jeopardize public health or safety. Critics objected that this disadvantaged genuine refugee-seekers from certain countries (Roma fleeing Hungary was one example given). Moreover, the evidence base for the apparent proliferation of bogus claims could not be substantiated (Sheridan and Shankardass 2016), and, according to Ottawa’s own data, the per capita annual cost of health care for refugees was considerably lower than that for Canadian citizens (Enns et al. 2107). The third claim made by the Harper government was that the new ifhp measures would considerably reduce federal expenditure, saving the federal government $100 million over five years (Kondro 2012). What represented cost-savings to Ottawa, however, simply meant shifting these costs to the provinces. Following the sudden changes to the i f h p in 2012, Quebec was the first province to publicly state that it would establish “exceptional temporary measures” to ensure that refugee claimants would continue

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to receive the same kind of health insurance coverage as those with r a mq (Quebec’s public health insurance program), excepting some services (such as fertility treatments and organ transplants). This was put in place as soon as the federal legislation took effect (Canadian Council for Refugees 2015). Quebec also explicitly prohibited ­individual physicians and health clinics from charging fees to patients with a valid i f hp certificate (Ruiz-Casares et al. 2016). While most other provinces did not establish separate health insurance programs for those cut off from federal coverage, they did generally ensure that anyone seeking emergency medical care would not be turned away (Canadian Council for Refugees 2015). Ontario was the only other province to provide a discrete insurance program for refugee ­claimants. This was the Temporary Health Program, which ran from 2014 to 2016 (Piccininni and Kwong 2019). Some municipalities (such as Hamilton) also declared that they would contribute to the funding of refugee health programs (Raza et al. 2012). Urban centres in Quebec, Ontario, and British Columbia absorbed considerable costs due to changes in the i f h p, as these provinces are the destinations of most refugee claimants. The Sick Kids’ Hospital in Toronto noted that, while 54 per cent of the bills it submitted to the ifhp insurance carrier (Medavie Blue Cross) were unpaid prior to the 2012 reforms, the post-reform level of unpaid claims was 93 per cent (Evans et al. 2014). Similarly, Toronto’s University Health Network reported covering over $800,000 in uninsured emergency services due to the i f h p reforms (Piccininni and Kwong 2019). The most serious consequence of the i f h p reforms was not cost downloading per se, but rather the massive confusion the new categories engendered, leading health providers to refuse services even to those formally entitled to them. Given four categories of coverage (expanded, basic, public health/public safety, and detainee) distributed among eleven categories of potential beneficiaries, the degree of ­complexity and confusion led to a significant increase in the number of private practices, walk-in clinics, and pharmacies refusing ­services to those with ifhp certificates (Chen et al. 2018). This led many to seek care in hospital emergency departments, as hospitals tended to accept ifhp certificates more readily (because any loss of payment faced by the hospital as a corporate entity would be a relatively small one). A further problem, however, was that specialists to whom patients were referred by emergency doctors were themselves less likely to recognize the ifhp certificates (Miedema, Hamilton, and Easley 2012). By 2013,

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only five of thirty walk-in clinics surveyed in Toronto were still accepting refugees as patients. Similarly, only nine of thirty-three walk-in clinics surveyed in Ottawa were willing to see refuge claimants, and the nine that did required a $60 up-front fee from patients (Eggertson 2013; Sheikh et al. 2013). Researchers surveying health care providers’ understanding of the i f hp found that only two per cent of respondents were able to answer all questions about the system accurately, with 39 per cent not providing any correct answers at all (Ruiz-Casares et al. 2016). At the same time, refugee claimants themselves found it difficult to understand what they were entitled to, especially given complete unfamiliarity with the Canadian health care system in addition to language barriers. And, while Medavie Blue Cross did provide a phone service to assist health care providers to navigate the i f h p, refugee counsellors were not given access to this service (Canadian Council for Refugees 2015). Consequently, the 2012 reforms to the ifhp led to both widespread political activism and a major legal challenge. Even before the reforms went onstream in June 2012, physicians across Canada organized a day of action to focus public attention on the reforms, while eight national health provider associations such as the College of Family Physicians of Canada issued statements requesting that the reforms be rescinded (Raza et al. 2012). On 25 February 2013, Canadian Doctors for Refugee Care, the Canadian Association of Refugee Lawyers, an organization known as Justice for Children and Youth, and individual patients filed an application with the Federal Court asking for a judicial review of the i f h p reforms. Citing a 1985 case (Singh v Canada) to establish the applicability of the Canadian Charter of Rights and Freedoms, the plaintiffs asked whether the reforms violated the Charter under section 7 (life, liberty, security of the person), section 12 (cruel and unusual punishment and treatment), and section 15 (equality before the law); and, further, whether section 1 of the Charter would justify any violations of these sections. The plantiffs also referenced Canada’s obligation under u n conventions it had signed. The ruling was delivered by the Honourable Madam Justice Mactavish on 4 July 2014. She ruled that the reforms to the ifhp did contravene sections 12 and 15 of the Charter, and that these violations were not supported by reference to section 1. She did not support the section 7 challenge. The Court suspended its decision for four months to allow Ottawa to make changes in the ifhp. Ottawa did make some

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changes to the ifhp, although it did not reinstate the program’s former provisions. The Canadian Association of Refugee Lawyers returned to court in January 2015 to argue that the federal government had not fully complied with the Court’s order; while Ottawa, in turn, gave notice that it would appeal certain aspects of the ruling (Enns et al. 2017). In the end, however, legal action was overtaken by political circumstances. The Liberal government of Justin Trudeau was elected on 19 October 2015, and within two months it had dropped the appeal of the Federal Court’s decision. Two months after that, it gave notice that the ifhp would be restored to its pre-2012 form by April 2016. In stark contrast to the previous administration, the Trudeau ­government characterized itself as a government sympathetic to humanitarian migrants, and from November 2015 to January 2017 it resettled 40,081 Syrian refugees in Canada (Tuck et al. 2019). It also expanded certain overseas aspects of the program by August 2017 (Abdihalim 2016). 5.3.2 Provision and Financing of Services This detailed explanation of the political contest over the i f h p is important to understand both the way in which the program operates and the challenges that remain in its operation. The ifhp is still based on the differentiation of specific categories of humanitarian migrant (although the concept of “Designated Countries of Origin” has been dropped). There are now five categories of i f h p -eligible groups: •

Resettled refugees receive refugee status before they come to Canada. There are several routes through which resettled ­refugees can be admitted. Government-assisted refugees are ­referred for resettlement to Canada by a resettlement agency such as the un Refugee Agency, and are supported solely by the Government of Canada or the province of Quebec. The Blended Visa Office-Referred program connects refugees ­already screened for resettlement with private sponsors. In the Joint Assistance Sponsorship program, i rcc partners with ­other ­organizations to resettle refugees with special needs. Refugees can also be c­ o-sponsored by organizations with irc c  outside of these p ­ rograms. Another route for resettlement is the Private Sponsorship program, in which approved private

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groups directly support refugees for up to a year (Quebec has a separate stream for private sponsorship). Finally, refugees can be chosen for r­ esettlement directly on the minister’s own initiative. Resettled refugees are eligible for certain health care services before they arrive in Canada. These generally include immigration medical exams, vaccinations, follow-up treatment for conditions that could make them ineligible for immigration, any medical support necessary for safe travel, and any treatments needed due to disease outbreaks. Once in Canada, resettled refugees are eligible for basic health care coverage until they qualify for p t health insurance. These basic services are similar to those offered by provinces and territories, including hospital services; care from certain licensed health care providers; and laboratory, diagnostic, and ambulance services. Governmentassisted refugees also receive resettlement assistance (including financial support, accommodation, clothing, food, and employment assistance) for up to a year, or until they are able to support themselves. Those who are privately sponsored rely on private donors over the same period for these services. All resettled refugees are also eligible for limited supplemental and prescription drug coverage during this period of support. This coverage is similar to what low-income individuals in provinces and territories can generally access, and includes limited vision and urgent dental care; home care and long-term care; allied health care practitioners; certain medical supplies and devices; and prescription drug coverage. • Protected persons are those whose claim of potential persecution in their home countries has been accepted by i rcc. These ­individuals are eligible for basic, supplemental, and prescription drug coverage for 90 days from the date their claim is accepted, or until they are covered by p t health insurance. • Refugee claimants are generally those awaiting a decision on their asylum claims or appeals. However, they can also be ­individuals whose claim for refugee protection has been rejected, and who are awaiting a deportation date. Refugee claimants are eligible for basic, supplemental, and prescription drug coverage until they are covered by p t health insurance, or until they leave Canada. i f h p coverage is withdrawn if refugee claimants ­withdraw or abandon their claims.

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Under section 24(3) of Canada’s Immigration and Refugee Protection Act, individuals may be considered victims of human trafficking, and under this designation may be granted a valid temporary resident permit. This permit makes them eligible for basic, supplemental, and prescription drug coverage for the ­duration of their temporary resident permit. Finally, detainees are those held in detention under the Immigration and Refugee Protection Act. They are eligible for basic, supplemental, and prescription drug coverage while detained under this Act.

To receive services from a health care provider, a humanitarian migrant must provide the appropriate documentation at the point of care. Depending on their formal status, this documentation could be an Acknowledgement of Claim and Notice to Return for Interview Letter, a Refugee Protection Claimant Document, or an Interim Federal Health Certificate. These documents permit the bearer to access eligible health care services without payment at point of care. However, these services can only be accessed if the health care provider has registered with the i f h p claims administrator, Medavie Blue Cross, the federal government’s chosen insurer for the comprehensive health coverage of members of the Canadian Armed Forces and extended benefits for all veterans. Refugee patients who do pay directly for services will not be reimbursed. i rc c lists all approved i f h p providers, according to province, online.2 Claims are submitted by health care providers via the Medavie provider portal, which also lists the services eligible for reimbursement, as well as their respective billing codes. In some urban centres with a higher density of migrants, some community health centres or specialized refugee health centres have evolved, along with alternative ­funding structures, to allow health care workers to provide care to non-insured or under-insured individuals (Barozzino 2010). One-third of all g ­ overnment-assisted refugees settle in the municipalities of London, Hamilton, Toronto, Ottawa, Windsor, and Kitchener (McMurray et al. 2014). A basic schema of health coverage for humanitarian migrants is outlined in figure 5.2.

 2 https://ifhp-pfsi.medavie.bluecross.ca/en/search-ifhp-providers/

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Resettled refugees Protected persons Refugee claimants Victims of human trafficking Detainees

Documentation required for access to publicly insured PT goods and services: either - an Acknowledgment of Claim and Notice to Return for Interview Letter, or - a Refugee Protection Claimant Document, or - an Interim Federal Health Certificate

Key  Service  Payment

Those with Permanent Resident status, and who have met any waiting time required by P/T s, can access services directly

Federal Department of Immigration, Refugees, and Citizenship Canada (via Interim Federal Health Program)

G P s, clinics, diagnostics, and hospitals

PT Medicare

Figure 5.2  Provision and financing of health services for humanitarian migrants

5.3.3 Governance and Regulation The current governance of refugee immigration in Canada is set out in the Immigration and Refugee Protection Act, 2001 (i r pa ). However, there is no reference in this Act, nor in its corresponding regulations, to the i f h p. Rather, the i f h p was established through federal orders-in-council. This is due to the nature of Canada’s first modern immigration Act, which was passed in 1952. While this Act

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largely codified existing immigration practices, it also set out a legislative basis permitting the federal government to enact other measures through regulations and orders-in-council. Thus, the initial Interim Federal Health Program for migrants to Canada was created by the federal Cabinet in 1957, before Medicare had become established across the country. By formally situating governance of the i f h p under the authority of the Governor-in-Council, the program can be altered significantly without consultation or authorization by Parliament. This was why the reforms of 2012, described by many as “­draconian,” were imposed without any advance warning. Moreover, the 2012 reforms were included as part of the federal government’s budget, and budgetary deliberations are traditionally subject to secrecy (Cohen 2012). The Harper government defended its 2012 reforms on the grounds that they clearly fell under federal jurisdiction. Yet a decision that was legitimately under federal aegis nonetheless had significant consequences for the provinces, which recognized not only their moral but also legal responsibility to provide emergency health care to those in medical distress (Holzer et al. 2017). At the same time, the authority granted under the orders-in-council provides considerable flexibility to any government in power, and there has been no subsequent plan made to place the i f hp under federal legislative authority. 5.3.4 Challenges The decision of the Liberal government to return the i f h p to its ­pre-2012 format did effectively mute the most vociferous criticism of the program. Yet even before 2012 the i f h p had several substantive issues, and the decision of the Trudeau government to increase the level of refugee resettlement in Canada put even more pressure on the program. In 2018, 92,400 refugees worldwide were resettled in 25 countries, and of these, Canada admitted 28,100, the most of any of these states (Edmonds and Flahault 2021). Canada’s Immigration Level Plan documents an intent to increase immigration levels to over 12.5 million – almost 30 per cent of Canada’s population – by 2036 (Ng and Zhang 2020). Assuming the level of refugees as a percentage of this figure remains constant, this still means that the demand for health care services by refugees will increase significantly. The Immigration Levels Plan for 2019–21 alone had targeted an intake of 10,700 government-assisted refugees, 20,000 privately sponsored

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refugees, 1,000 refugees through the blended public/private program, and 20,000 protected persons (Edmonds and Flahault 2021). In March 2020, however, Canada began to refuse entry to asylum-seekers at unauthorized ports of entry due to the spread of covi d -19, and reduced international travel curtailed the number of those seeking asylum at customs points. While this dramatically reduced the level of refugee claimants for 2020, the Immigration and Refugee Board of Canada at the same time released around half of those held in ­detention in provincial facilities and immigration holding centres (ibid.). This actually increased the number of new refugee claimants seeking supports such as health care services in the community. Due to c ov i d -19 as well, some provinces waived their normal threemonth waiting period to access health insurance, and the federal government in August 2020 established a new pathway to permanent residency for refugee claimants who “worked on the frontlines of the pandemic” (Faraday 2021). c ov i d -19 thus both increased and alleviated the pressure on humanitarian refugees seeking health care services. But in the longer term, the barriers to access that existed even after the 2012 reforms will resurface. The first of these is the lack of awareness on the part of many health care providers (gp s, clinics, pharmacists, opticians, dentists, physiotherapists, etc.) regarding the services to which ­refugees are entitled, and the conditions under which they are entitled to these services. Patients may arrive with various forms of documentation (as noted in section 6.3.2) making them eligible for services provided free at point of care, but health care providers may refuse services (or demand up-front payment) due to an unfamiliarity with the ­ p rogram. This phenomenon has been well documented (e.g. Miedema, Hamilton, and Easley 2012; Canadian Council for Refugees 2015; Ruiz-Casares et al. 2016; Chen 2017; Chen et al. 2018; Spurgatis 2019). And the refugee benefits system is admittedly quite complicated for anyone unfamiliar with the program, largely because of the d ­ ifferent refugee categories, each entitled to different services under different terms. Resettled refugees, for example, only receive i f hp coverage until they are eligible for p t health insurance; however, they continue to receive supplementary benefits as long as they receive income support from the government (for government-assisted refugees) or private sponsorship. However, even when they do become eligible for p t health insurance, they are not eligible for the drug coverage provided by some provincial low-income

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assistance programs, as they are prohibited from receiving welfare for their first year (Canadian Council for Refugees 2015). In contrast, refugee claimants lose their supplemental benefits once they become eligible for p t health insurance (although they may qualify for low-income support, depending on the province). Undocumented (or “illegal”) migrants are technically not covered by any public insurance system, but will usually not be turned away from emergency care if they present at a hospital (although undocumented migrants tend, unsurprisingly, to be quite wary of seeking care even for critical medical conditions). Some municipalities also offer refugee clinics supported by community-based organizations, which will provide services without requiring proof of identification (Campbell et al. 2014). Once the status of a refugee seeking health care services has been determined, a provider must then consult the “claims grid” provided on the Medavie Blue Cross website to ­determine which services are in fact insured (and the claim amount permitted for each service). The impact of the complexity of the process is not limited to health care providers. Those seeking health care are themselves often unsure for which services they are eligible. Not only are these individuals unfamiliar with provincial health care systems writ large, but they also often face language barriers. Again, this varies, depending on the ­refugee category. Resettled refugees have access to resettlement ­services, which provide assistance with both service navigation and interpretation. Refugee claimants do not have access to these services until their claim has been approved. Refugee claimants are also less likely than resettled refugees to be able to rely upon informal social communities to help them access health care services (Newbold, Cho, and McKeary 2013). Finally, all refugees seeking health care providers must locate health care professionals who have registered with Medavie Blue Cross to provide services insured through the ifhp. Providers who have not registered will not be reimbursed for any services they provide for ifhp recipients. Lists of these providers are posted on a website established by Medavie Blue Cross, and resettlement counsellors can access these names on behalf of resettled refugees; but finding a health care provider who is registered with Medavie’s i f h p program is much more difficult for refugee claimants who have no formal supports such as access to resettlement counsellors. There has also been some criticism that the i f h p reimbursement program for health providers is not set up in a way that encourages

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them to participate. The registration process itself has been described as “cumbersome and lengthy” (Spurgatis 2019), although in 2016 Medavie removed the requirement for health care providers to renew their membership in the i f h p program annually. The amount of paperwork has been reported as “excessive,” even (or especially) for emergency services. The Canadian Council for Refugees, for example, notes that i f hp dental coverage is for “emergency” work only, and yet approval for this emergency work can take weeks (2015, 4). Reimbursement for services can be inconsistent, with no clear understanding of why certain claims are rejected while others are accepted. Claims are denied without explanation. Reimbursement times can vary substantially, with some health care providers waiting up to ninety days to have claims processed. Finally, there remains the underlying issue that the basis of legislative authority for the i f h p remains with the Governor-in-Council (i.e., the federal Cabinet). As long as a government in power sees immigration (and the treatment of humanitarian migrants more ­specifically) as a program it wishes to encourage and support, resources will be forthcoming. In the longer term, however, future federal administrations will retain the ability to make drastic changes to the program without any stakeholder consultation or public discussion (Sheridan and Shankardass 2016).

5 . 4 C o n c lus i on In sum, two key features of the health care system established for the migrant population in Canada stand out. The first is its overwhelming complexity. There are, as this chapter has explained, a proliferation of categories, each with its own set of eligibility conditions. Consequently, the access rules are difficult to summarize simply. The health care that both migrant workers and humanitarian migrants can access in Canada is set out in a framework that is a complicated and intricate web of federal regulation, pt regulation, federal insurance coverage, workers’ compensation, pt insurance coverage, goods and services provided by provinces and territories, and, to a much more limited extent, goods and services provided by the federal ­government (e.g., health care provided to resettled refugees prior to arriving in Canada). Private health insurance and the provision of services by voluntary organizations also fill some gaps in the care available for migrants in Canada.

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These provisions are also temporary and conditional: temporary foreign workers, by definition, can only access publicly insured health services during the limited time they are contracted to work within Canada. Refugee claimants generally have access to federal health insurance only until their claims are settled, although resettled refugees may be able to access federal supplemental benefits for a slightly longer period. In some cases, refugees have access to some goods and services (such as dental and vision services, or drugs and medical equipment) through the i f hp that are not normally provided by p t Medicare (though these may be provided by provincial insurance for low-income residents). Conversely, however, some refugee claimants who are granted access to pt Medicare may lose access to provincial programs for low-income residents until they have lived in the province for a full year. The second notable feature of this system is the vulnerability of the recipients. They are, by definition, not Canadian citizens per se, and thus do not have a particularly robust position from which to claim health care services. Resettled refugees, as well as refugee claimants whose claims have been successfully recognized, are considered to be permanent residents and, as such, have access to public health care (after their provincial waiting times have elapsed) similar to that of Canadian citizens (although there are some exceptions, such as the inability to access prescription drug coverage available through p t social-assistance programs). Temporary foreign workers generally have precarious income and limited education, and they face linguistic and cultural barriers to accessing health care services. They may work in rural areas with limited health care service availability, or lack transportation to travel to communities with health care providers. Their limited-term contracts make it difficult to follow through on claims filed under workers’ compensation. And the very condition of their employment – that they must be able to work productively under gruelling conditions, with the threat of repatriation if they become unable to do so – can discourage workers from seeking treatment in the first place. Like migrant workers, humanitarian migrants have little understanding of the Canadian health care system in general, or of the specific programs designed for their particular circumstances. Language and cultural barriers to access to health services also exist for refugees, and may be amplified by a history of fear and trauma. The programs set up for the variegated migrant population in Canada

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have a logic and are carefully tailored for the particularities of each group. And yet, as Miedema, Hamilton, and Easley (2012) note, it is somewhat paradoxical that programs developed to facilitate access to health care for a vulnerable group of newcomers are so complicated that many health care providers choose to avoid them. One of the greatest advantages of Canada’s Medicare system is its simplicity; yet, in attempting to provide a fair and comprehensive system of health care to newcomers, this quality has been lost.

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6 Indigenous Health Care

6 . 1 In t ro ducti on As discussed in the Introduction, the Canada Health Act sets out the high-level national standards under which the thirteen provincial and territorial (pt) Medicare programs operate. Probably the single largest misconception about these p t Medicare systems is that they exclude First Nations persons and Inuit. As will be seen, this is not true. However, Indigenous peoples in Canada do have a disproportionate burden of disease relative to other Canadians. This is for a complex set of reasons including the history of colonialism and racism in Canada. As a consequence, many Indigenous people continue to live under conditions marked by high unemployment, low income, low levels of education, and sub-standard living conditions (Martin et al.  2018; Richmond and Cook 2016). This has propelled both Indigenous governments and organizations to insist on improvements from ­federal, provincial, and territorial governments or, in recent decades, to take greater control over the governance, organization, and delivery of health services to members of their respective communities (Marchildon, Lavoie, and Harrold 2021). All First Nations individuals and Inuit receive Medicare coverage through the provinces or territories where they are resident. However (and this is where the confusion enters the picture), any First Nations person who is registered under the Indian Act or any Inuk recognized by an Inuit land claim organization is deemed a beneficiary of the federal government’s Non-Insured Health Benefits (n i h b) program, which provides coverage for some non-Medicare services, including pharmaceuticals, dental care, eye care, and medical transportation

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expenses, now administered by the federal department of Indigenous Services Canada. Further confusing is the fact that some federally funded and designed population health programs are available to all Indigenous people, defined as all First Nations individuals, Inuit, and Métis, whether or not they are registered under the Indian Act or recognized by an Inuit land claim organization. Finally, there is the historical fact that a number of provinces used to have Medicare premiums – a set amount paid on a family or ­individual basis to the provincial or local government authority responsible for collecting what was in effect a separate poll tax used to supplement general revenues in paying for Medicare services. The Government of Canada paid these Medicare “premiums” to provincial governments on behalf of registered First Nations people. Today, there are no such Medicare poll taxes. While the terms “health premium” or “Medicare premium” continue to be used, they only exist as a tax on employers in British Columbia and a “surtax” in Ontario that is collected through general income taxation (Marchildon, Allin, and Merkur 2021, 68). However, given this history, it is likely that should a future provincial or territorial government decide to re-introduce Medicare premiums in the form of a separate poll tax on families or individual residents, the federal government would pick up the tab for both registered First Nations individuals and eligible Inuit. Similar to pt coverage and provision of non-Medicare services, nihb and population health programs operate outside the reach of the Canada Health Act. Our focus here is mainly on the nature of Medicare coverage provided by p t governments to Indigenous people living in Canada and the connections to other coverage or services they may receive from the federal government. First, however, it is useful to examine the history of how Indigenous people became provincial and territorial residents for the purposes of Medicare in Canada. Figure 6.1 provides a simplified view of the federal, provincial, and territorial arrangements for Indigenous health care. All three categories of Indigenous Canadians are considered to be eligible provincial or territorial residents for the purposes of accessing pt Medicare coverage, which, after all, was designed to be provided on a universal basis. In contrast, ni hb benefits are restricted to registered First Nations individuals and eligible Inuit. At the same time, federal coverage precludes these two categories of individuals from being eligible for p t extended health benefit coverage or health services beyond Medicare. In contrast, Métis and non-registered First Nations individuals and

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I N DI G EN OU S CANA DIA NS

Registered First Nations individuals

Non-Insured Health Benefits

Eligible Inuit

Métis, non-­registered First Nations ­individuals, and ­non-eligible Inuit

Provincial and t­ erritorial Medicare ­services (­primary care, hospital care, diagnostics)

Government of Canada (Indigenous Services Canada)

Provincial and territorial extended ­benefit c­overage and services

Key  Service  Payment Provincial and territorial ­ministries/ departments of Health

Figure 6.1  Provision and financing of Indigenous health care

non-eligible Inuit, while not eligible for n i h b coverage, are eligible for provincial and territorial extended benefit programs and services, including drug plans, home care, and long-term care.

6 . 2 H is to ry Before the advent of Medicare (through universal hospital insurance in the late 1950s and early 1960s, followed by the implementation of universal medical care coverage in the late 1960s and early 1970s), the federal government provided at least some hospital and medical care services to First Nations persons living on reserves and to Inuit living in remote Arctic communities. Historically, the provision of health services to recognized members of First Nations in Canada was

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a federal, rather than provincial, concern. Although only one of the treaties signed between the Government of Canada and the various First Nations explicitly included health care, it was an important precedent (Marchildon, Lavoie, and Harrold 2021). This was the influential “medicine chest” clause in Treaty number 6, signed between various Cree nations in Alberta and Saskatchewan and the Government of Canada in 1876 (Young 1984; McCallum and Lux 2022). These treaties and the federal Indian Act of 1876 were also the instruments used to move First Nations onto reserves so that land could be settled by Euro-Canadian settlers and renewable (e.g. water) and other resources could be exploited (Dashchuk 2019; Luby 2020). The Indian Act defined the interaction of the Government of Canada with what it defined as 614 First Nations bands and their members. The Act has two defining elements: it says how reserves and bands are allowed to operate, and it defines who is and is not recognized as an “Indian.” Historically, First Nations individuals recognized under the Act were called “registered Indians” or “status Indians” and were issued registration cards, which were essential for someone to be classified as an ni hb beneficiary (Lavoie et al. 2010). In the 1920s and 1930s, the Government of Canada established a system of “Indian” hospitals and nursing stations, mainly to serve registered First Nations individuals and families. The federal government seemed to have two objectives. The first was to provide very basic hospital services to Indigenous people living in rural and remote areas, often on impoverished reserves where infectious diseases were far more prevalent than in Euro-Canadian communities. For this reason, the Indian Health Service (ihs) hospitals were largely occupied by patients with diseases such as tuberculosis (Lux 2016). The second objective was to provide some public health nursing services including education, illness prevention, and some very basic treatment services through health centres, nursing stations, and clinics located in some of the larger Indigenous settlements. The federal government determined eligibility for medical treatment based on three criteria: 1) the individual had to be an “Indian” under the meaning of the Indian Act (Inuit were, and continue to be, defined separately); 2) the individual was still following an “Indian way of life,” which was generally defined by federal officials as living on a reserve; and 3) the individual could not otherwise afford or access treatment (National Health and Welfare 1958, 76). The situation for Inuit differed. Not having treaties and reserves (and no agreements

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until the more recent land claims agreements), the Inuit were registered through a separate federal bureaucracy. It would take until the relocation of Inuit from family camps into regional settlements in the 1950s and 1960s for federal nursing outposts to be established in the eastern Arctic (Wenzel 1981; Marchildon and Torgerson 2013). By the time that the i hs branch moved into the newly established Department of National Health and Welfare in 1945, there were 18 “Indian” hospitals in Canada. This number would remain largely static until universal hospital coverage was well in place under the cost-sharing terms of the Hospital Insurance and Diagnostic Services Act of 1957. Since the provincial governments were required to treat all provincial residents equally as per the requirements of the federal legislation, these “Indian” hospitals would gradually be closed or transferred to provincial governments, which were now responsible for providing all Indigenous residents with hospital care (Lux 2016). In 1957, on the eve of Parliament’s passage of this federal law on universal hospital coverage, there were 18 Indian hospitals, the same number as in 1945. These 18 hospitals had 2,193 beds in total, almost 75 per cent of which, in 1957, were occupied by patients with tuberculosis (National Health and Welfare 1958). In contrast to the hospitals, several federal nursing stations were established in the first three decades after the Second World War. The number of nursing stations in Indigenous communities almost tripled in number from 22 in 1946 to 64 by 1974 (Drees 2010). While some provincial governments (e.g., Saskatchewan) owned and operated their own nursing stations (Drees and McBain 2001), other provincial governments depended more heavily on the federal government, churches, or the Red Cross to deliver basic primary care to their more isolated Indigenous residents, populations which they often considered wards of the Government of Canada and therefore not their responsibility (Rutherdale 2010; Drees 2010). However, the number of ­federal, Red Cross, and church-based nursing clinics would decline rapidly in the decades following the implementation of universal medical care insurance and the devolution of responsibilities for basic medical and social care from Ottawa to the two territorial g­ overnments (Alcantara et al. 2012; Weller 1990). These changes created a situation in which provincial governments were expected to provide all Indigenous residents, whether registered under the Indian Act or not, access to hospital, diagnostic, and medical care services on “uniform terms and conditions.” However, in practice,

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provincial hospitals and medical clinics were rarely located near reserves – and generally not on reserves since these lands were under federal government stewardship and law. On the ground, this meant that Medicare services were not readily available to those First Nations individuals living on rural and remote reserves. As a consequence, the federal government continued to fund a few public health nursing clinics and nursing services in First Nations communities in the remote areas of some provinces (Marchildon, Lavoie, and Harrold 2021). In the far north, however, the situation differed from the provinces. The territorial governments took over the old nursing stations and converted them to community health centres staffed by nurses they recruited and paid. Although full devolution of democratic and social policy program responsibility from the federal government to the ­governments of the Northwest Territories (nwt) and Yukon would take until the late 1980s and 1990s, the nwt’s single-payer medical care plan began operating on 1 April 1971, while Yukon’s single-payer medical care plan would be implemented a year later (Taylor 1987, 375). Since this time, all Indigenous residents have had p t Medicare coverage, and depending on which province or territory they reside in, the appropriate provincial or territorial health card. In theory, this legal fact of residency entitles all registered First Nations individuals and Inuit access to insured services under the Canada Health Act in their respective provinces or territories. In practice, however, this formal access rule can be undermined by the lack of geographic access, at least for those First Nations individuals and Inuit living in isolated communities without ready access to clinicians or hospitals. Health services beyond Medicare are another matter. In the 1970s, provincial governments began to introduce home care programs, ­support for long-term care, and provincial drug coverage plans to fill in the gaps for those residents without private health insurance through employment-based benefit plans. While the federal government at the time was providing some prescription drugs, dental care, and some other services on an inconsistent basis to First Nations individuals and Inuit, these efforts were standardized as part of the Non-Insured Health Benefits (n i h b ) program after the Indian Health Policy of 1979 (Marchildon, Lavoie, and Harrold 2021). Prior to this time, non-insured services were provided when i h s officials deemed they were needed, but without any concrete policy on the range of services provided or covered by the Department of National Health and Welfare (McCallum and Lux 2022).

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The term “non-insured” only makes sense when considered in the context of how the federal government defined “insured services” in its own laws. From the federal government’s perspective, since insured services had to be provided to all Indigenous residents by virtue of the Hospital Insurance and Diagnostic Services Act of 1957 and the Medical Care Act of 1966 (the two laws that would be eventually combined in the Canada Health Act of 1984), Ottawa only needed to concern itself with “non-insured” services – that is, the services that fell outside the basket of insured services. Today, eligibility for nihb is restricted to: (1) a First Nations person who is registered under the federal Indian Act; (2) an Inuk recognized by an Inuit land claim organization operating in four regions – Nunavut, Nunatsiavut (Labrador), Nunavik (Northern Quebec), and Inuvialuit (Northwest Territories and Yukon) – covering one-third of the land area of Canada; and (3) a child less than 18 months of age whose parent is a registered First Nations person or a recognized Inuk. As of March 2021, there were 898,839 eligible nihb beneficiaries in Canada, roughly 2.4 per cent of the total Canadian population. The three provinces with the largest number of eligible nihb beneficiaries are Ontario (218,784), Manitoba (160,954), and Saskatchewan (158,785), even if a majority of residents in the Northwest Territories and Nunavut receive n ihb coverage (Indigenous Services Canada 2022). The non-insured services covered under nihb included prescription drugs, dental care, vision care, and medical transportation and involved a total federal expenditure of almost $1.5 billion in 2020/21. Of this total, 35.3 per cent was for medical transportation, which, in turn, facilitates access to Medicare services that are often not located in the more rural and remote First Nations and Inuit communities, an important element in improving access to insured services as defined under the accessibility and universality criteria of the Canada Health Act. A further 37 per cent of this total was for pharmaceuticals and 15.9 per cent was spent on dental care (Indigenous Services Canada 2022). The downside is that n i h b beneficiaries are legislatively excluded from the extended health benefit coverage provided by pt governments for their respective residents (Marchildon et al. 2017). Behind the ni h b lie conflicting claims that have remained unresolved to this day. First Nations groups and governments state that their members are entitled to nihb as a matter of Treaty rights, while the federal government argues that these were, and remain, services offered by the federal government based on need as opposed to legal

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entitlement (Young 1984). In particular, the federal government has claimed that the objective of the ni h b program is to help registered First Nations individuals and recognized Inuit to reach “an overall health status comparable to other Canadians” (Loyer and Small Legs 2014, 24). The Indian Health Policy of 1979 also launched a shift in the direction of federal policy itself – to encourage First Nations communities to manage their own health care in the expectation that this shift would eventually improve health outcomes (Lavoie et al. 2007). In 1989, the First Nations and Inuit Health Branch began to transfer health budgets from Health Canada to those First Nations band governments with the requisite capacity (as assessed by the federal government) who were, at the same time, willing to take greater control of health care governance. The health transfer program (as it is known) is restricted to those services financed by, and previously administered and delivered by, the Government of Canada. Of course, these transfers could not include insured services under the cha (except for federal services historically provided in the more isolated reserves), because these services have been administered and largely financed by p t governments since Medicare was implemented. This will be discussed at greater length in the section below on governance. In 2015, the Truth and Reconciliation Commission (t rc ) was established to aid the federal government to redress the legacy of religious-based but state-sponsored residential school system in Canada and its negative impact on Indigenous peoples. Of the t rc ’s 94 calls to action, #18 called upon federal, provincial, territorial, and Indigenous governments to “acknowledge that the current state of Aboriginal health in Canada is a direct result of previous Canadian government policies, including residential schools, and to recognize and implement the health-care rights of Aboriginal people as identified in international law, constitutional law, and under the Treaties” (trc  2015, 2). Call #18 seems to require special measures to address the health needs of Indigenous people given the inequitable and detrimental policies of the past. At the same time, the Canada Health Act’s ­structure assumes that every Canadian citizen – Indigenous and nonIndigenous – has access to insured services under the Act on “uniform terms and conditions,” the phrase used in defining the criteria of universality under section 10, one of the theoretical limits of universality if we are trying to provide better access to higher-quality medical,

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diagnostic, and hospital services to compensate for past policies that institutionalized poorer access to lower-quality services in the past (Papillon 2019). In practice, however, it is entirely up to the provincial and territorial governments how they arrange the delivery of Medicare services. To the best of our knowledge, the federal government has never criticized, much less penalized, a provincial government for not providing ­adequate access to services for its residents in rural and remote regions under section 10 (universality) or section 12 (accessibility) of the cha. At the same time, keeping in mind that the ch a sets the floor for p t coverage, provincial governments could have done much more to provide improved access to better services for Indigenous residents living in historically underserved reserves and remote communities, or for marginalized Indigenous residents in Canada’s urban areas. Overall, the Canada Health Act is silent on the issue of Indigenous health systems. According to Lavoie, the Act has “not kept pace with Indigenous self-government activities” in the health field (Lavoie 2018, 280). Focused exclusively on the relationship between the ­federal and provincial governments, the c h a does not consider Indigenous governments at all. Although it was not likely contemplated that Indigenous governments would eventually play a major role in the governance, administration, and delivery of Medicare services in some parts of the country when the ch a was written, the landscape has changed dramatically in the last three decades (see ­section 6.6 for further discussion). However, there has always been considerable unwillingness by successive federal administrations to amend or modernize the Act, in part because of the fear that this might open the flood gates to a host of demands for change from other groups and interest coalitions in Canada (Marchildon and Tholl 2017).

6 . 3 F u n d ing Most of the funding for insured services under the Canada Health Act (i.e., Medicare) comes from the provincial and territorial governments. This includes the funding of insured services for registered First Nations individuals and Inuit. However, for historical reasons as described above, the federal government continues to fund and administer, directly or through First Nations governments, some public health nursing services and a few primary care clinics in the more isolated reserve communities in the provincial north.

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However, the federal government still directly finances the provision of some nurse-based primary care services through nursing stations on reserves in the more remote regions of provinces. This funding is for services that provincial governments treat as Medicare when delivered off-reserve. Some Indigenous band governments have taken over responsibility for these nursing stations – clinics as they are now called – although the funding still comes from the federal government through Indigenous Services Canada. The history of this federal financing and provision is considered in greater depth below.

6 . 4 P rov is io n a nd Deli very Theoretically, p t governments are responsible for the provision and delivery of all cha-insured services to all of their respective residents, including Indigenous residents. However, there remain reserves in remote areas that continue to receive some federal services that could be defined as cha-covered services. Nonetheless, even if some nursing clinic services are still made available, the federal government has made it a point to not provide, or pay for, hospital and physician services – the core of insured services – on such reserves. As noted above, some band governments have chosen to administer these ­primary care clinics directly and are supported in this through s­ elf-government agreements and corresponding transfers from the federal government (Marchildon, Lavoie, and Harrold 2021). pt governments have avoided locating hospitals and primary care clinics on reserve property. In addition, specialist physicians and ­diagnostic clinics providing Medicare services are located in larger urban centres. As a consequence, there is often a geographical separation between on-reserve-based First Nations individuals and ­c ha-insured services (Lavoie 2018; Lavoie et al. 2007). One exception is the Athabasca Health Facility in northern Saskatchewan. The ­facility, Yutthe Dene Nakohoki, is a combination acute care hospital, longterm care facility, and primary health clinic located on the Black Lake First Nation reserve in northern Saskatchewan that has been operating since 2003. This hospital and its acute care and primary care services are largely funded by the Government of Saskatchewan but ­administered and delivered by the Athabasca Health Authority, itself a product of a tripartite agreement in the 1990s among the Athabasca Dene and the governments of Saskatchewan and Canada (Black Lake First Nation 2022).

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While provincial primary care services can be in adjacent nonreserve communities, those individuals who live in reserve ­communities at some remove from non–First Nations communities are often forced to travel long distances to access c h a-insured services. Since most reserve communities are not of sufficient size to warrant hospital and specialized physician and diagnostic care, the members of these ­communities must fly or drive to larger urban centres to access these services (Oosterveer and Young 2015). In response, p t governments have established extensive air services to evacuate patients in emergencies and air link arrangements for those patients able to travel on scheduled flights. For nihb beneficiaries, necessary medical transportation expenses – whether by air or by road (taxi, ambulance, or private vehicle) – are covered by the federal government through the n ihb program. However, more specialized forms of acute care and chronic care treatment, core Medicare services, can only be addressed and treated in larger urban centres which are some distance from these communities. Consequently, p t governments fund and operate extensive arrangements for urgent medical transportation – commonly known as “medevac,” short for medical evacuation (Young, Chatwood, and Marchildon 2016). At the same time, the cost of non-urgent medical travel by eligible First Nations individuals and Inuit is covered by n ihb (Loyer and Small Legs 2014).

6 . 5 R e g u l ati on As discussed above, registered First Nations individuals and Inuit are eligible for such services by virtue of their residency in a given province or territory. Theoretically, this residency requirement must be upheld by provincial and territorial governments, in return for which they receive per capita allocation of the Canada Health Transfer. However, it is obvious that the continued funding of necessary medical care services by the federal government in some provinces and the delivery of these primary care services – albeit by nurses – could be considered contrary to the obligations of provincial governments. As noted above, Indigenous people – unlike military members and inmates in federal correctional institutes – were purposely not carved out of this definition of residency. Moreover, while the term “medical care” is not defined in section 2 of the c h a , in stark contrast to “­hospital care” which is extensively defined, the term was not meant

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to be exclusive to physician care – a term that was purposely not used in either the c h a or the original Medical Care Act of 1966 (Marchildon and Tholl 2017). At the same time, registered First Nations individuals and Inuit as n i h b beneficiaries are automatically excluded from p t extended benefits coverage. And this is precisely what causes considerable ­confusion in the minds of many Canadians. They are not eligible for any of the extended benefits – called “extended” because they are not within the basket of insured services in the c h a  – provided by p t governments. These extended benefits include p t prescription drug plans, the provision of long-term care and home care services, coverage, and subsidies as well as assistive devices and other more targeted health products, equipment, and services. While registered First Nations individuals and eligible Inuit are covered through n i h b , Métis and non-registered First Nations individuals and non-eligible Inuit are not and must therefore seek their extended health benefits through the provincial and territorial programs. This has created a bifurcated system of coverage for registered First Nations people and Inuit in which they use their p t Medicare cards for hospital, diagnostic, and medical care services, while they use their federal registration cards to access extended services under the federal n i h b program (Marchildon et al. 2017). It is important to note, however, that unlike Medicare, ni h b is supposed to be a last-resort program: if any ni h b beneficiary has private coverage or p t coverage, then the beneficiary is expected to seek coverage first from those other sources before calling upon n i h b coverage. When you add geographical isolation to this bifurcated system of coverage, you end up with gaps in the availability of health services, which is particularly challenging for children with special needs (see section 6.7 below).

6 . 6 G ov e rnance When Medicare was first introduced and even at the time the Canada Health Act was passed in 1984, the assumption was that there were two political actors responsible for Medicare. The federal government, through the cha and fiscal transfers, was responsible for establishing and enforcing basic national standards, while the provincial governments were responsible for regulating and administering the delivery of insured services under the c h a . Since that time, new actors have entered the arena. First Nations and Inuit governments and

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organizations are not contemplated in the c h a , and neither are ­territorial governments, for that matter. We mention the latter because the Government of Nunavut was established in 1999 as a combination of a public government for all the residents living within its borders and a self-government on behalf of the Inuit majority living in the territory as part of a major Inuit land claim (Hicks and White 2016; Henderson 2008). This means that the Government of Nunavut delivers all Medicare services to its 40,000 ­residents, who live in twenty-five widely dispersed communities across a vast area only slightly smaller than Mexico. As such, the Government of Nunavut is expected to meet the ch a’s requirements, in return for which it receives its per capita share of the Canada Health Transfer (Marchildon and Torgerson 2013). One of these requirements is that the territorial government must provide all ­residents access to medically necessary or required hospital, diagnostic, and medical care services on uniform terms and conditions and cannot discriminate between its majority Inuit residents, who constitute close to 85 per cent of Nunavut’s population, and the minority, consisting of its non-Inuit residents. Putting the very special case of Nunavut to the side, there are a number of Indigenous health systems involving Indigenous ­governments or organizations with the administrative responsibility for ensuring that their members and, at times, all those individuals resident within their territories even if not Indigenous receive Medicare services. Beyond the First Nations band governments already providing primary health care services on their respective reserves, these more extensive Indigenous health systems have been established as part of a larger movement toward greater self-determination (Marchildon, Lavoie, and Harrold 2021). Although the responsibility for non-Medicare services has been shifting from the federal government to Indigenous governments such as the First Nations bands regulated under the Indian Act, and to new Indigenous entities such as the First Nations Health Authority in British Columbia, we focus here only on those Indigenous health systems that manage and deliver c h a -insured services – in other words, hospital, diagnostic, and medical care services. Invariably, these Indigenous health systems receive considerable funding from provincial governments to deliver these Medicare services, but the governance and administration of these systems is under Indigenous control. Table 6.1 provides a list of some these Indigenous-governed health systems.

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Table 6.1 Indigenous health systems with responsibility for insured services under the Canada Health Act Indigenous health system

Location

Policy foundation

Population served

Cree Board of Health and Social Services of James Bay

Northern Quebec

Nine Cree ­communities with a population of 18,394 in 1975

Nunavik Regional Board of Health and Social Services (Inuit)

Northern Quebec

Athabasca Health Authority (Dene Nations)

Northern Saskatchewan

Lands claim ­originating with the tripartite James Bay Agreement and ­subsequent (1995) provincial legislation Lands claim ­originating with the tripartite James Bay Agreement and ­subsequent (1995) provincial legislation Tripartite ­framework agreement

Fort Qu’Appelle Tribal Council’s First Nations Health Hospital Sioux Lookout Meno Ya Win Health Centre

Southern Saskatchewan

Tripartite agreement

Northwestern Ontario

Weeneebayko Area Health Authority

West coast of James and Hudson Bay, Ontario

Four-party ­agreement also including the ­municipality (local government) Health integration framework agreement

Fourteen Inuit ­communities with a population of 13,188 in 2016

Far northern Saskatchewan with 4,500 population: five communities with majority Dene population Eleven First Nations located in the Qu’Appelle Valley Serves as regional ­hospital for Sioux Lookout and 31 First Nation communities Four sites including Weenebayko General Hospital serving Moosonee, Moose Factory, and four First Nations communities

Source: Derived from Marchildon, Lavoie, and Harrold (2021).

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Some of these Indigenous health systems have emerged out of First Nations and Inuit land claim negotiations and agreements involving recognized Indigenous authorities with the federal government, and directly involving the provincial or territorial government responsible for funding and administering Medicare services in the geographic area where the land claim is located. Most, if not all, are underpinned by a tripartite framework agreement among the federal, p t, and Indigenous governments involved in establishing the Indigenous health system. A typical tripartite agreement involves a quid pro quo of the affected pt government transferring funds to the Indigenous authority in order that it can manage the delivery of cha-insured services to a designated population. This designation takes one of two forms: the first is based on membership in the identified First Nations and Inuit communities, while the second is based on a commitment by the Indigenousgoverned health organization to serve all residents within a particular geographic area or set of communities. At this time, there are negotiations taking place that will likely establish more Indigenous health systems. This movement is part of a much larger trend toward Indigenous self-determination that is changing the political complexion of Canada. That said, based on the criteria of public administration under section 8 of the Canada Health Act, provincial governments must ensure that they are accountable – through their respective ministers of Health – for the administration of Medicare, including access and quality to all p­rovincial residents, through the provincial legislature. This would imply that provincial ministers of Health are still answerable to their ­provincial legislatures and the general public for the public financing and administration of Medicare even if Medicare services are being governed, managed, and delivered by First Nations or Inuit governments or their organizations. This should mean that tripartite agreements recognize this accountability and provide a transparent mechanism allowing p t ministers of Health to – at a minimum – report on the administration of Medicare within Indigenous health systems. Perhaps a better solution would be to amend the ch a and re-align the public administration criteria so that it better fits with a twenty-first-century Canada in which First Nation governments (as well as territorial governments) have a role akin to p t governments in the administration and delivery of insured services under the Canada Health Act.

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6 . 7 C h a l lenges Indigenous health poses a major challenge to currently configured access and governance rules under the cha as well as the supporting p t architecture of Medicare. This challenge in embedded in the ­pre-history of Medicare and the associated history of colonialism, institutional racism, and consequent disparities in health outcomes. This has led to a movement toward greater Indigenous control over the determinants of health and health care services. The single largest existential challenge to Medicare is the clash between universality as set out in the ch a and the growing demands for Indigenous self-determination where Medicare services are ­governed, administered, regulated, and delivered by Indigenous ­governments and organizations rather than by provincial governments under the terms set by the c ha . On the one hand, in order to meet the federal criteria of universality under section 10 of the ch a, p t Medicare plans “must entitle one hundred per cent of the insured persons of the province to the insured health services provided by the plan on uniform terms and conditions.” On the other hand, due to the emergence of a new order of Indigenous government in Canada, it is much more d ­ ifficult to ensure that these terms and conditions are as uniform as originally conceived when the relationship was restricted to the federal and provincial governments. The question for the future is whether Indigenous self-government will require a redefinition of universality or perhaps even the acceptance of a parallel (but perhaps different) form of universality for First Nations individuals and Inuit (Papillon 2019; Marchildon 2019). Another approach is for federal and p t governments to begin to address the policy silence concerning Indigenous health systems and create a national First Nations, Inuit, and Métis health policy with the objective of facilitating the coordination of these emerging systems with existing pt Medicare systems that operate under the framework of the federal Canada Health Act (Lavoie 2013; 2018). On a more practical level of the day-to-day delivery of services, the bifurcation of coverage between the federal and pt governments described earlier  – plus the complex and separate governance ­arrangements involving federal, pt, and Indigenous governments, and organizations – can create problems of access for Indigenous people (Lavoie 2018). The case of the 2005 death of Jordan Rivers Anderson, a five-year-old Cree boy from the Norway House Cree Nation reserve

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located 500 km north of Winnipeg, Manitoba, illustrates the problem. Suffering from a rare neurological disorder, Jordan spent his first two years in a Winnipeg hospital, his treatments and stay covered by  the provincial Medicare plan. His doctors determined that Jordan could be released from hospital and was well enough to “receive care in a home tailored in his medical needs” (Chambers and Burnett 2017, 102). This is when the problems started. Jordan’s family now needed to do renovations to make their house accessible and required a ­different vehicle for Jordan’s care and medical transportation. The federal ­government argued that these costs were a provincial responsibility, while the ­provincial government argued the converse. Jordan stayed in hospital while the dispute continued, where he died a few months later. In response to public pressure and protests, the federal government adopted a new policy – named “Jordan’s principle” – in 2007. Very simply put, when a First Nations or Inuit child gets sick or injured, the government of first contact takes care of treatment and associated expenses and any dispute about who should ultimately pay – the federal or p t governments – is a matter for those governments to resolve after care is provided (Chambers and Burnett 2017). According to observers, however, and despite its public endorsement by provincial political leaders, Jordan’s principle has had limited impact on improving access, in part because of the lack of legislative follow-up by either order of government (Chambers and Burnett 2017; Lavoie 2018). As Jordan’s case also illustrated, there remains a problem of access to Medicare services by Indigenous people living in remote – often northern – communities. Because of the history of divided jurisdiction, there is often little in the way of even primary health care infra­structure, especially on reserves in the provinces. There are of course exceptions, especially in the territorial north, where even small communities have a nurse-based community health centre, and where the largest territorial communities have regional hospitals with a few resident doctors (Marchildon and Torgerson 2013; Oosterveer and Young 2015).

6 . 8 C o n c l usi on In theory, the access rules under the Canada Health Act and the supporting pt Medicare infrastructures are deceptively simple. Contrary to popular belief, all Indigenous people in Canada are provincial and territorial residents for the purpose of Medicare, and they receive

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Medicare services from p t governments. Indeed, it is contrary to the letter and spirit of the Canada Health Act for pt governments to refuse to provide Medicare coverage to their Indigenous residents. However, in practice, there are few p t services actually offered on-reserve in Indigenous communities for historical reasons. This has created serious access problems, particularly in remote communities far from urban centres, and, as a result, the federal government continues to fund some primary care services directly and some First Nations ­governments have chosen to administer and deliver such services themselves. At the same time, those Indigenous residents who are eligible for Non-Insured Health Benefits are excluded from access to the extended (non-Medicare) health benefits coverage and services provided by their respective provincial or territorial government. This bifurcated coverage has created a complex administrative environment that both Indigenous people and their providers must navigate. A product (and perhaps a by-product) of land claim agreements and other federal, provincial, and Indigenous government negotiations, Indigenous health systems have emerged in Canada that are now responsible not only for administering and delivering Medicare ­services but for integrating these services within a broader continuum of health. These Indigenous health systems pose a challenge to the c h a , which only contemplated provincial governments as being responsible and accountable for Medicare. This shift can be accommodated through complicated work-arounds, but a more constructive solution in the future would be to amend the ch a to recognize and build more constructively on this reality.

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7 Virtual Care

7 . 1 In t ro ducti on From the very beginning of the c ov i d -19 pandemic, virtual health care became a necessity. Unable to see their doctors or go into their primary care clinics, Canadians still needed to get advice and care. Before the pandemic, virtual care was occasionally available but it was very much a niche service. During the pandemic, virtual appointments became widely accessible, mainly by telephone, but occasionally through audiovisual platforms such as Zoom. The same occurred with specialist referrals and appointments. This marked a major departure from the past. Although virtual care had been ­promoted for decades, in practice it had been blocked by provincial ­governments refusing to pay for virtual care, as well as the long-held assumption based on habit held by providers (and likely many older patients) that appearing in person was essential for any proper diagnosis and care. Despite the fact that virtual care only became a key feature of health provision as a result of the pandemic crisis, it is likely here to stay. Few providers, and even fewer patients, are going to be willing to give up the convenience of virtual care. Moreover, governments have ­discovered that their changes to physician payment systems to facilitate virtual care have not broken the bank and may even save money in the long term. At the same time, virtual care is a disruptive innovation that not only alters the way in which health care is practised but will likely pose a major challenge to the underlying assumptions and architecture of our thirteen provincial and territorial (p t ) Medicare systems and

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perhaps even to the Canada Health Act itself. This chapter reviews the nature of this challenge as we see it. But first we will briefly review the trend to virtual services since March 2020 and discuss what had to change to allow this to happen in the first place. We will then examine what we think will be the knock-on effects and the dilemmas this creates for those responsible for managing the thirteen pt single-payer Medicare systems in the country following the pandemic. Finally, we review the implication for the Canada Health Act itself, and the interpretation of the ch a’s key provisions by federal policy-makers.

7 . 2 T h e V irt ua l C a re Revoluti on: W h at Is G o i ng On? First, it is probably a good idea to define what is meant by “virtual care,” as it seems to conjure images of advanced technologies available to only the most computer-savvy clinicians and patients. Nothing could be further from the truth. The simple telephone or smartphone is enough for virtual care, which has been defined as “any interaction between patients and members of their circle of care that occurs remotely, using any form of communication or information ­technology, to facilitate or maximize the quality and effectiveness of patient care” (Wong 2021, 1). For decades, various organizations had been trying to make virtual care part of the mainstream. Virtual care was promoted by pt governments and health authorities to facilitate and coordinate the care of residents living in rural and remote areas, and to reduce medical travel for basic appointments and consultations. One of the more striking examples of these efforts was the Government of Nunavut’s decision to establish telehealth centres in every community health centre in the territory in the early 2000s (Marchildon and Torgerson 2013). Despite these and many other initiatives in Canada, the use of virtual care increased at a snail’s pace, leading some to complain that Canada was far behind other high-income nations in making virtual care available to its citizens (Vogel 2020). The covid-19 pandemic accomplished what no amount of evidence and advocacy could. With most patients unable to have in-person consultations with their providers, governments were forced to change billing codes to permit health professionals to conduct virtual consultations with their patients (Bhatia et al. 2020). By June 2020,

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three months into the crisis, 70 per cent of ambulatory care provided by hospitals and doctors in their offices was virtual (Bhatia et al. 2020). The pandemic was the external shock needed to make virtual care a day-to-day reality in Canada. In a statistical study of all patients in Ontario, non-hospital visits for medical care increased from an almost negligible 0.2 per cent in 2012 to a still minuscule 1.8 per cent by the end of 2019 (Bhatia et al. 2021). In contrast, between 1 April and 30 June 2020, the first months of the pandemic, 74 per cent of all primary care visits and 64 per cent of all specialty care visits in Ontario were virtual. In this same period, 86 per cent of physicians delivered their care virtually. At the same time, the vast majority (91 per cent) of these “visits” were telephone consults, while the rest were conducted through audiovisual platforms (Bhatia et al. 2021). Telephone consults are inexpensive and easy for both patients and providers. There is no need for good internet access – often unavailable in rural and remote parts of the country – or any computer ­literacy. For this reason, it seems that virtual care was embraced by all patients, the old as well as the young, rural residents as well as urban dwellers, and the poor as well as the better off. Contrary to the fears of some, virtual care did not lead to more care for younger, higher-income, and more urban and educated populations at the expense of the older, the poorer, the more remote, and the less ­educated (Bhatia et al. 2021). No doubt, there will be further studies giving us the results in other provinces and for the entire period of the pandemic. However, by all reports, the trend picked up in the Ontario-focused study was roughly the same in the rest of the country. This is not surprising, given that the only way Canadians could access most of their regular medical care beyond acute care was through virtual consultations. But why did it take a pandemic for virtual care to happen in the first place? Most doctors did not offer this option for one simple reason: provincial fee-for-service schedules did not allow physicians to be remunerated for virtual visits. In an ipsos survey conducted in 2018 for the Canadian Medical Association, 63 per cent of Canadians wanted to be able to email their physicians but only 24 per cent of physicians offered this service, and 41 per cent wanted video visits but only 4 per cent offered this option. When you add other modalities such as telephone, the number of Canadians that wanted virtual visits was 70 per cent (cma 2019). At the time, most doctors did not

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offer these services because pt Medicare plans did not offer enough (or any) reimbursement, or because they were simply habituated to in-person meetings where they could observe their patients directly. The speed at which provincial payment systems facilitated virtual care – particularly telephone consultations with family doctors and specialists – was dizzying. Provincial medical associations worked with their provincial governments to revise provincial fee schedules to reimburse physicians for virtual consultations with patients within weeks of the pandemic outbreak. In Ontario, for example, on 14 March 2020, the following new codes appeared in the provincial fee-for-service schedule (c i hi 2021b): • •

•

•

K080 – minor assessment of patient by telephone or video K081 – intermediate assessment including psychotherapy by ­telephone or video K082 – psychotherapy, psychiatric, or mental health counselling by telephone or video K083 – specialist consultation by telephone or video

Is this trend to virtual care permanent? Or will we simply revert to the way things were done before the pandemic? This depends on whether patients and providers like what they’ve experienced with virtual care, and so far it looks like this is the case. In fact, highly ­satisfied with virtual care, 30 per cent of Canadians want virtual care to be their first point of contact after the pandemic recedes (Glazier et al. 2021). Based on a 2020 Abacus Data survey conducted for the Canadian Medical Association, 91 per cent of patients were ­satisfied with the virtual care they received during the c ov i d -19 pandemic, while 46 per cent of Canadians who actually had virtual care during the pandemic preferred it as the first point of contact with their doctor (cma 2021). These results are consistent with the many advantages that virtual care offers to patients (Singh 2021). There are definite costs associated with setting and keeping in-person appointments. For many, this involves arranging time off work (time that is not recompensed for those in lower-paid, casual jobs), the cost of childcare when needed, and the time and expense of transportation (and parking), particularly for Canadians living in rural and remote communities some distances from both their primary care providers and specialists, who tend to live in larger populated centres.

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7 . 3 V irt ua l C are under t h e Canada Health Act Canadians’ desire for certain types of lower-tech virtual care such as telephone or online (e.g. Zoom) visits with physicians was obvious before the pandemic. However, since the demand for this kind of virtual care was not being met through Medicare because of p t ­payment structures, as well as the unavailability of Medicare providers (due to physician shortages and long wait times), a private market emerged with new virtual providers outside the public Medicare ­system before a pandemic was declared in 2020. For example, Getmaple.ca advertised “the opportunity to ‘chat with a doctor in your pajamas through online consultations, as well as services ­including prescriptions and sick notes’” (cm a 2019, 4). At the time of w ­ riting, a family membership in Getmaple.ca is $50 ($30 for individuals) per month while the cost for each online consultation with a doctor is $49 on weekdays, $79 on weekends and holidays, and $99 for overnight virtual visits (Maple 2021).1 In Quebec, Maple was regulated in such a way that it could only work with private doctors practising outside of the provincial Medicare scheme (the Régie de l’assurance maladie du Québec or ramq). As a result, Maple increased its fees for Quebec residents wishing to get a g p consultation from $119 to $199 per visit in 2022 (Maple 2022). The private sector had also begun to offer more specialized virtual services before the pandemic. For example, DermaGO was a Quebecbased service founded by six dermatologists. Upon emailing ­photographs of their skin problems, patients would receive a diagnosis and prescription within 72 hours for $179.99, while the same service within 24 hours would cost $249.99 (cma 2019). This trend to private virtual care continued during the pandemic (Boyle 2021; Kao 2021). Although changes in the provincial fee codes did mean that many patients could access virtual care as part of provincial Medicare schemes, if they did not have a regular family doctor pre-pandemic or were located in provinces where there were shortages of family doctors or specialists, or long wait times on referrals to specialists, patients still turned to private doctors offering virtual care services.   1 In Quebec, the cost is $119 per virtual gp consultation (https://helpdesk. getmaple.ca/en/articles/3419010-gp-maple-services-in-quebec).

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At a minimum, these private virtual services are contrary to the purpose of the Canada Health Act. The purpose of the Act is to ensure that all Canadians have access to Medicare services at no cost at the point of service. As stated in section 3, the “primary objective of Canadian health care policy is to protect, promote and restore the physical and mental wellbeing of residents of Canada and to facilitate reasonable access to health services without financial or other b ­ arriers” (Canada Health Act 1985). In fact, some provinces changed their ­billing codes so that patients could access medical care services – largely physician services – through these private virtual care corporations. And those provinces with such billing codes experienced “a rapid proliferation in the number of companies offering these services” (Health Canada 2021b, 17). This raises the question of what constitutes reasonable access in any given pt system. Was it reasonable for pt governments to restrict virtual care services before the pandemic by not remunerating physicians for these services? If not, then the restriction of such virtual visits should have been perceived as preventing reasonable access to insured services under the Canada Health Act. This should have been seen as a violation of the comprehensiveness criterion in section 9, which states that each p t Medicare plan “must insure all insured health services provided by hospitals, medical practitioners or dentists [for some surgical-dental services], and where the law of the province so permits, similar or additional services rendered by other health care practitioners and the accessibility principle.” This language should have covered virtual services before the pandemic and quite definitely during and after the pandemic given the changes to p t Medicare ­billing codes. Next are the accessibility criteria under section 12 of the Canada Health Act (1985). This section stipulates that p t Medicare plans “must provide for insured health services on uniform terms and conditions and on a basis that does not impede or preclude, either directly or indirectly whether by charges made to insured persons or otherwise, reasonable access to those services by insured Persons.” Without question, before the pandemic, provincial governments were allowing a situation in which their residents could only access virtual care services at a fee outside the provincial Medicare plan. Moreover, this private market for virtual care outside Medicare not only survived the addition of some virtual care services to p t Medicare systems, but grew during the pandemic (Health Canada 2021b).

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There could have been numerous reasons that patients chose to pay privately for such virtual services – convenience, inability to find a family doctor, lack of responsiveness of their own providers, long wait times for certain services, or the need for an immediate prescription drug therapy. Some of these reasons continue to be valid, irrespective of the fact that virtual care in the form of telephone and video consults is now part of Medicare. In particular, the inability to get a primary care provider and the long wait times associated with specialist referrals (in part because of a shortage of health professionals in some parts of the country) have encouraged individuals with the means to reach out to these private corporations offering the services of nonMedicare providers. The rather sudden emergence of this two-tier care is undermining the original single-tier nature of Canadian Medicare (Bodner et al. 2022). Indeed, at this time, depending on the policies of the province of residence, a patient may or may not have publicly paid access to the virtual-care services that are offered through corporate ­platforms even if, in theory, they are to be provided on “uniform terms and conditions” under the universality criterion in section 10 of the Canada Health Act. In Nova Scotia, in 2020, for example, while most gps were given billing numbers for virtual health care, doctors in walk-in clinics p ­ roviding Medicare services were not compensated for virtual services, and so patients could purchase virtual services from these clinics at a cost of $45 (Rent 2020). By 2021, however, these same services, at least as offered through one corporate platform, were available free of charge to residents in the neighbouring provinces of New Brunswick and Prince Edward Island (Health Canada 2021b). Such differences pose a major challenge to the single-tier universality that historically characterized Canada’s approach to universal health coverage (Marchildon 2019). In addition, under the principle of universality, the p t plan “must provide for payment for insured health services in accordance with a tariff or system of payment authorized by the law of the province.” This means that, before the pandemic, when p t governments were effectively preventing doctors (and other professionals such as nurse practitioners) from providing virtual care services by not remunerating such services, their Medicare plans should have been interpreted as contravening the Act. No action was taken by the federal government, though, perhaps in part because of the inherent difficulty in challenging how provincial governments define their package of coverage for

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Medicare services (Tiedemann 2019; Flood and Thomas 2016). However, due to provincial governments explicitly adding virtual care services into the pt Medicare basket by providing public payment for such services, the removal of such services following the pandemic should now constitute a clear violation of the universality and ­comprehensiveness criteria under the Canada Health Act. This raises the issue of the extent to which virtual care challenges the portability requirement under the Canada Health Act. This ­criterion is based on the notion that Medicare coverage should follow residents whether they are visiting another part of Canada (or beyond) or moving to a different province or territory. Of course, the Act was written before the term “virtual care” was ever used or even possible beyond a simple telephone consultation. As noted above, pt governments are parties to a reciprocal billing system that, with some exceptions, ensures that patients needing Medicare services can receive them as seamlessly as possible in any part of the country simply by showing their home pt Medicare card (Marchildon, Allin, and Merkur 2021). While portability of patient coverage is addressed in the Canada Health Act, the portability of insured services is not. This is in large part because provincial and territorial governments have considerable latitude in determining what constitutes a “medically necessary” or “medically required” service within their own jurisdiction – the minimum floor required under the c h a . In addition, in practice, p t Medicare programs and policies actively discourage their residents from receiving insured health services in other jurisdictions, both in Canada and outside (Tiedemann 2019). This then raises the issue of whether patients should have universal and free access to hospital, diagnostic, and physician services that are not sourced from an identifiable province or territory in Canada. The pt architecture for Medicare was never designed for the possibility of virtual services that could come from anywhere in Canada outside the province or territory determining Medicare eligibility based on residence, much less from beyond Canada’s borders. For this ­reason, it is necessary to get beyond the formal provisions of the Canada Health Act and examine the institutions that make Medicare function across provinces and territories based on face-to-face services that were, at one time, clearly domiciled in individual jurisdictions. Indeed, virtual care provides us with the opportunity to rethink and refashion these institutional dimensions of Canadian Medicare for the twentyfirst century.

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7.4 T h e A s s u m p t io n s a nd Archi tecture o f p t M e d ic a r e S ys tems Except for members of the Canadian Armed Forces and inmates serving sentences of two or more years in federal prisons who receive their coverage directly from the federal government (discussed earlier) and those receiving services for workplace injuries or illnesses under p t or federal workers’ compensation arrangements, all Canadians receive hospital services free at the point of service based on their respective provincial or territorial Medicare cards. For those Canadians who receive such services outside their home province or territory, their home health cards are accepted for coverage in other provinces and territories. Since the implementation of universal hospital coverage in the late 1950s and early 1960s, provincial (and later territorial) ­governments have been party to reciprocal agreements to ensure the portability of hospital coverage for all Canadians – subsequently covered under an Interprovincial Reciprocal Payment Agreement for Hospital Services. The same occurred with respect to the coverage of medical services, which was implemented a decade later. Today, residents of all provinces and territories, apart from Quebec, are covered under the Interprovincial Reciprocal Payment Agreement for Physician Services (Shaver 2017). In order to bill any provincial government, however, a physician must have a Medicare billing number. In most provinces, this means that the physician is opted into Medicare or, at a minimum, has not opted out of Medicare (Flood and Archibald 2001). While physicians are declared residents of a province based on the place where they make most of their income, pay their taxes, and incorporate their professional corporations (Nielsen and Sweetman 2018), they can practise in another province if they are accepted by the regulatory college of physicians and surgeons in that jurisdiction. At that point, they can receive a Medicare billing number in that province. This is particularly important for physicians who take on temporary locum assignments in remote areas of Canada outside their home province. pt governments have created a complex web of laws and policies adhering to the strong single-tier form of universality that underpins the Canada Health Act (Flood, Thomas, and White 2020). While these laws and policies, which vary considerably among provinces and ­territories, do not eliminate two-tier care in practice, they greatly

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restrict the space for it. Provincial and territorial governments do this through a complex mix of laws, policies, administrative rules, and agreements that: 1 prevent opted-in physicians from charging their patients an amount above the public fee schedule, a practice defined as extra-billing under the Canada Health Act; 2 prevent physicians from being able to bill privately while being able to bill Medicare patients (and having a Medicare billing number), a practice commonly known as dual practice; 3 limit physicians who have opted out from charging their private patients fees that are higher than p t Medicare rates; and 4 ban or discourage the use of private health insurance for Medicare services. Each province uses a slightly different mix of these regulatory requirements (Flood and Archibald 2001). None of these restrictions are stipulated in the Canada Health Act but, over time, pt ­governments have concluded that they are needed in order to comply with the universality and accessibility requirements in the Act as well as to discourage physician extra-billing and the imposition of user charges by any hospital or other health care facility providing insured s­ ervices – for which the province or territory might face a deduction from its per capita share of the Canada Health Transfer. While these restrictions may have been effective in the past, they are, with the advent of virtual care, clearly not effective in protecting the single-tier nature of Medicare. Looking forward, there are two different directions that p t governments can go if they want to preserve the strong form of single-tier universality in Canadian Medicare. The first is to restrict, and perhaps even ban, private (non-Medicare) virtual services. This can be done by p t governments agreeing to cancel Medicare billing numbers for those physicians who insist on continuing to provide some or all of their physician services through private virtual care corporations. This restrictive approach can be reinforced by not allowing patients who receive such private services to jump back into the public system for further treatment and care based on consultation and diagnosis by non-Medicare providers. Governments can also restrict such services by preventing private health insurance plans – the vast majority of which are part of employment benefit plans – from providing coverage for such services by

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adding to, or amending, the current provincial laws that ban or restrict private health insurance. However, the measures required in such a restrictive direction are punitive in nature and mainly restrict services that many Canadians clearly want or need due to the failings of the current public system. There is a second way to preserve universality, and that is to bring such services into the mainstream of pt Medicare systems. This would require several changes to the current architecture of Medicare as administered by provincial and territorial governments. Given the virtual nature of these services, the first requirement would be an intergovernmental agreement among the provincial and territorial governments to work towards some common licensure and qualityof-care standards acceptable to all p t governments and professional regulatory colleges. This would then allow practitioners to be licensed, and be provided Medicare billing numbers, in each province and ­territory, and thus provide insured services to all patients in the country. Based on the work completed by the Federal, Provincial and Territorial Virtual Care / Digital Table, this is the direction ostensibly desired by all fpt governments. These governments have committed themselves to the principle that Canadians “should continue to have access to physician and physician-equivalent services without having to face patient charges, regardless of whether these services are received virtually or in-person” (Health Canada 2021c, 6). Although the physicians and nurse practitioners who are currently working for these virtual care companies are presumably regulated on the quality and ethics of the care they provide by some provincial ­regulatory college, this would stipulate the common standards they are expected to meet throughout the country. To a considerable extent, this simply reflects the recommendation of the Virtual Care Task Force established by the Canadian Medical Association, the College of Family Physicians of Canada, and the Royal College of Physicians and Surgeons of Canada, a recommendation that was made on the eve of  the c ov i d -19 pandemic in February of 2020 (c m a 2020). Adjudication and enforcement of rulings could be conducted by a pan-Canadian body established by all p t regulatory colleges. This working-out of a pan-Canadian approach avoids the complications caused by provincial and territorial governments working in isolation. For example, while some provinces (i.e., British Columbia, Alberta, Saskatchewan, and Ontario) have allowed virtual walk-in clinics, others have not, raising difficult questions concerning access

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and quality (Hardcastle and Ogbogu 2020). This has precipitated some physicians to call for greater government involvement in virtual care to address these silos, create an effective regulatory system, and encourage greater patient accessibility (Kao 2021). Virtual care also presents a major opportunity for the p t jurisdictions experiencing chronic shortages of primary care providers, as well as for patients who live in rural and remote regions (Henderson 2021). These may seem like major changes to the current architecture, but the alternative is to simply allow two-tier care to grow in Canada, a development that may benefit higher-income Canadians and the ­commercialization of physician practices by large corporations but would be punitive for everyone else. More importantly, it is important that Canadians receive higher quality and more timely services than they have in the past. As the studies from the Commonwealth Fund (2021) have shown, Canada ranks poorly in terms of access, quality, and timeliness relative to other high-income nations. Virtual care could improve the responsiveness, quality, and timeliness of patient care, which, in turn, would improve health outcomes. But if virtual care is not properly integrated into Medicare, it will pose a major threat to single-tier universality and the original objectives of the Canada Health Act. The federal government could facilitate this development by making it clear that the virtual primary care, diagnostic, and specialist services currently being offered by the virtual care companies in Canada are in fact insured services under the Canada Health Act. This would then require all p t governments to ensure that their residents had access to such virtual services without any financial barrier (i.e., without either a monthly membership fee or a fee at the point of service). p t governments would still be free to regulate the operations of the virtual care platforms in conjunction with the pt regulatory colleges, as these two actors together determine which physicians are eligible for a Medicare billing number. If patients continue to be charged for such services, these fees should be treated as extra-billing and user charges under the Canada Health Act, and pt governments deducted accordingly from their share of the Canada Health Transfer. Monthly fee schemes that bundle Medicare and non-Medicare services are a more complicated matter but raise some of the same equity issues as extra-billing, since non-members of such corporate platforms are excluded from receiving Medicare services from these companies (Bodner et al. 2022).

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7 . 5 C o n c l usi on As can be seen, virtual care raises a host of challenges concerning the access rules of Medicare. After years of advocacy but only gradual implementation, virtual care has become an important part of provincial and territorial Medicare systems because of the c ov i d -19 ­pandemic. In particular, p t governments rapidly changed their physician fee-for-service codes to allow residents to access physician services on a virtual basis at a time when in-person visits were not permitted. At the same time, virtual care raises key questions about the limits of the Canada Health Act and the architecture of provincial and ­territorial Medicare systems. Using the flexibility offered by the cha in defining insured health services, p t governments have tended to restrict the type of virtual health care services they offered to the public. For example, while family and specialist physicians with ­existing patients could take advantage of the new billing codes, physicians in some walk-in clinics could not. Patients without family ­doctors or other primary care providers were obliged to access virtual care from private providers while others, without the money to pay, were forced to go without. In addition, the focus on physician services rather than medical services, more broadly defined, ends up excluding key ­primary care services, including mental health therapies and chronic disease management. As a consequence of patient demand for virtual care outstripping the restricted public supply through Medicare, the prevalence and scope of private virtual care provision grew quite dramatically during the pandemic. To the extent that many of these services would ­normally be considered insured services under the ch a as well as p t Medicare laws and policies, this new development posed, and continues to pose, a major challenge to our existing Medicare system in two fundamental ways. First, virtual care forces us to rethink the way in which we have – and have not – defined insured services in the cha and how this is interpreted by p t governments. Second, unless these practices are changed, and such services incorporated into Medicare, privately funded (non-Medicare) virtual care services will only grow with time. As such, they will pose the most significant challenge to the basic principles of Canada’s system of single-tier universality.

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8 Conclusion

We hope that this study of the porous borders around the Canada Health Act, and the services replacing or abutting Medicare, help to achieve a better understanding of how the Canadian health system is designed. Since knowing what services or population groups are excluded from the Canada Health Act is a first step in that direction, our earlier chapters focused on the three major carve-outs from the cha – workers’ compensation beneficiaries, members of the Canadian Armed Forces, and inmates in federal correctional institutions. We then examined federal programs and services for migrants and refugees as well as self-governing health programs, services, and health systems for Indigenous people (most n ­ otably registered First Nations individuals and eligible Inuit) that overlap with or, in some cases, replace the Medicare services and coverage that most other Canadians receive. We ended with virtual care because of the challenge this twenty-firstcentury care modality poses to the c h a and the architecture of the provincial and territorial single-payer systems of Medicare with their complex web of laws, policies, and administrative practices. As we have seen, workers’ compensation (w c) and its associated health coverage and benefits pre-date the ch a by more than a half century. A social compact involving industry, workers, and the state, wc is enshrined in a plethora of federal and provincial and territorial (pt) institutions and laws that the framers of federal Medicare laws and the provincial counterparts were unwilling to disturb. Consequently, wc was simply allowed to operate alongside Medicare coverage. This work-around functioned reasonably well until the early-to-mid 1990s, when waiting lists in the public Medicare sector encouraged those public boards administering wc schemes to pay a

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premium above Medicare rates to get w c-insured workers to jump pt Medicare queues for diagnostics, therapies, and treatment and get them back to work as quickly as possible. The waiting list problem has persisted ever since, and wc practices of this type continue to challenge the much-vaunted one-tier universality of Canadian Medicare. More significantly, litigants arguing in favour of relaxing or eliminating p t rules on one-tier access can easily point to w c (as they did in the Cambie Surgeries case) as already creating two tiers of access in Canada (British Columbia 2020; Flood, Thomas, and White 2020). Despite the fact that all federal health programs, services, and ­coverage are sometimes said to constitute Canada’s fourteenth health ­system, in our view the only valid holder of this title is the Canadian Armed Forces health system, as it is the only self-contained and c­omprehensive health coverage that is separate from p t services. Explicitly excluded as insured persons under the ch a, members of the Canadian Armed Forces (c a f ) have all their health services and ­coverage  – including the Medicare coverage received by other Canadians through p t Medicare plans  – provided directly by the Canadian military. This means that the full range of health and dental services is provided by the c a f health system, except for ingarrison acute care and highly specialized medical care services, which are contracted out to hospitals and specialists in Canada but remain tightly coordinated by the caf Health Services Group. Of even greater significance is the constant readiness of caf medical personnel to be posted overseas. These physicians, surgeons, nurses, and other health professionals provide a broad range of health services to caf members who become injured or ill while deployed outside the country. This difference alone likely justifies the exemption of caf members from pt Medicare plans and is the reason that most countries have separate health services and coverage systems for members of their respective militaries. However, this major exception to our system of pt Medicare systems, subject to the principles of the cha, should not be confused with veterans’ benefits. In fact, veterans’ coverage and benefits, administered by Veterans Affairs Canada, do not replace Medicare, but cover non-Medicare benefits, including long-term care and home care, that extend well beyond Medicare. To be sure, these are extensive benefits, but all c a f retirees – almost all of whom are classified as veterans – receive regular Medicare coverage, upon

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retirement, from the government of the province or territory where they are resident. Similar to c a f members, the inmates of Canadian correctional institutions are also excluded as insured persons under the c h a . However, reflecting the fact that these federal prisoners constitute a smaller population than caf members, the types of services provided by (or contracted out by) Correctional Service Canada are not as extensive or as self-contained as those provided by the caf Health Services Group. Indeed, some prisoner advocates have questioned whether the services provided to inmates are sufficient and whether inmates really have the same access to medically necessary or ­medically required services that are offered to all other Canadians. The real issue is whether this carve-out for inmates from the ch a has a solid policy justification and, if not, whether this exception should be removed from the c h a in the future. In this respect, a ­precedent has already been set. In 2012, Stephen Harper’s government unilaterally repealed a similar exception for the Royal Canadian Mounted Police (rcmp) in a bid to save some $25 million in administrative costs (Harris 2012). At the time, the repeal was buried in an omnibus bill called the Jobs, Growth and Long-term Prosperity Act, which made no mention of this historic change (Marchildon and Tholl 2017). At the time, there was limited criticism of the federal government for amending the c ha in this way. Extrapolating from this experience, removing this exception from the cha might not elicit particularly strong negative reactions if adequate compensation flowed from the federal governments to the provinces and territories, and if it was decided that better integration of inmates into existing p t Medicare systems would actually improve the quality and ­continuity of care. Under the c h a , access to Medicare is based on the simple fact of residency. However, this is a status that is not unconditionally afforded to either migrant guest workers or refugees. As a consequence, the federal government has, over time, provided substitutes for Medicare coverage (or bridging coverage) for some classes of refugees. However, this health coverage is not bestowed as a right but as a service that is discretionary on the part of the Government of Canada. The real question for Canadians, given our history in providing sanctuary for refugees for humanitarian reasons and our very recent and growing reliance on migrant guest workers to perform jobs that are essential to our economic well-being, is whether we should consider a more

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rights-based approach. It would be possible, for example, to insert the requirement in the c ha that, at a minimum, the federal government directly provide Medicare coverage roughly equivalent to that provided by provincial and territorial governments for migrant workers. And it would be a more than justifiable quid pro quo, given the extent to which some provincial and territorial economies benefit from guest workers, and given that these workers pay Canadian incomes taxes, to make pt Medicare mandatory for these individuals for the periods of time they are working in the country. Indigenous health is the most complex and misunderstood dimension of Canadian Medicare. The reason is not hard to trace. For the purposes of the c ha , there is no exclusion for Indigenous peoples – they are provincial and territorial residents as defined under the cha. If normally resident in Canada for at least six months of the year (and not a member of the caf or an inmate serving two years or more in a federal jail), all Indigenous individuals have a pt Medicare card. However, if First Nations individuals live in remote regions of a ­province, particularly on reserves, they may have difficulty accessing pt Medicare services, many of which are not sited in their respective communities. As an aside, this stands in contrast to communities in the three territories that are served by publicly managed community health centres, with specialist and hospital services made available in larger centres. However, because of this, First Nations and Inuit ­residents living in the remote northern areas of provinces still sometimes receive services in federally operated nursing stations or through their own First Nations- or Inuit-administered health centres. In recent decades, we have witnessed the emergence of Indigenous health systems that provide both Medicare services and population health programs. Moreover, some Indigenous health systems ­administer extended benefits coverage under the rules of the federal Non-Insured Health Benefits Program (nihb). This development poses a major challenge to the cha, which was written at a time when only provincial health systems were recognized as parties to the ch a. In any future modernization of the c h a , these sections should be recrafted to include Indigenous governance so that the decisions by provincial governments to cede the administration of Medicare to Indigenous governments and their organizations (as part of a larger trend toward Indigenous self-government) are not viewed as a simple act of administrative delegation. The current reality is already much more than delegation and needs to be addressed and formalized to be

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consistent with section 35 of the Constitution Act (1982), which “recognizes and affirms” Indigenous and treaty rights as well as the calls for action by the Truth and Reconciliation Commission in 2015 (trc 2015). In this sense, the cha might draw from the preamble of the Department of Indigenous Services Act (2019), which states that “the Government of Canada is committed to achieving reconciliation with First Nations, the Métis and the Inuit through renewed nationto-nation, government-to-government and Inuit-Crown relationships based on affirmation and implementation of rights, respect, cooperation and partner-ship, promoting respect for the rights of Indigenous peoples recognized and affirmed by section 35 of the Constitution Act, 1982, and implementing the United Nations Declaration on the Rights of Indigenous Peoples.” The current Medicare architecture of Canada assumes not only that patients have access through their residency in one of the thirteen provinces or territories in Canada, but also that health organizations and providers deliver services within a given province or territory. Virtual care challenges this underlying assumption. A patient in Nova Scotia can receive an online health service through a provider based in Vancouver as easily as through one in Halifax. But since the organization and self-regulation of the health professions, along with payment systems and Medicare billing arrangements, are determined by pt governments acting in isolation from each other, virtual care is enormously difficult to bring into mainstream Medicare. As a result, a private market – spurred by restrictions on in-person visits during the pandemic – has grown rapidly in recent years. If these services are not brought into Medicare quickly, virtual care will establish a major second, privately funded tier of health services that can only be accessed based on ability to pay rather than on medical need. A book such as this about the borderlands of the cha cannot provide a direct evaluation of the cha. Nonetheless, by examining these liminal spaces, it could be surmised that Canada has been largely successful – through both the cha and the other abutting health care systems – in providing health care coverage on the basis of need rather than ability to pay, even, and perhaps especially, for the most ­vulnerable in our society. At the same time, the investigation of Canada’s non-cha forms of public health care show some of the ways in which this comprehensive coverage is undermined: for example, by various efforts over time to offload costs, avoid accountability, or shift blame between jurisdictions (experienced by Indigenous groups, the

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Canadian Armed Forces, and the rc m p ). This examination of the border spaces has also revealed some notable deficiencies, including the failure of the federal government to provide a strong legislative basis for some groups (refugees); the failure of p t governments to provide the infrastructure that permits certain groups to fully enjoy existing health care coverage (migrant workers); and the inability of pt governments and their delegated authorities to achieve a significant reduction in wait times that, in turn, motivates those who can to seek private health care services (those with access to workers’ compensation and/or virtual care). The application of access rules (which determine exactly who is covered, which services are covered, and the degree of cost covered) to each of these non-c ha forms of public health care gives a more precise understanding of the nature of this coverage, and the ways in which it differs from the pt Medicare programs governed by the cha. At the same time, variation in these access rules underscores the ­complexity and variability of the way in which public health care is provided outside or above the cha. This can be due to differences in the details of p t Medicare policy and regulation, the category of recipient, the nature of an individual’s occupation, and the geographical distance from services. It can also (especially in the case of refugees or prisoners) be highly susceptible to political currents that have nothing to do with health care at all. To an extent, health care has always been filtered through the prism of federalism in Canada. Canada has one of the most decentralized health care systems amongst o e c d states, and most Canadians ­understand that references to “Canada’s health care system” are ­rhetorical shortcuts for Canada’s thirteen provincial and territorial health care systems. The c h a , of course, is the statutory glue that provides a recognizable and consistent character to the Medicare ­portion of these p t systems. But, as this volume has described, Medicare in Canada is as much determined by the legislative, regulatory, and policy architectures of different provinces and territories, where the influence of the c h a is much more distant. This raises important issues of equity, efficiency, access, and consistency. The cha has now weathered several decades and has, in that time, been subject to some interpretations and minor amendments. But health care itself, and Canadian society writ large, has changed much more emphatically over that period. To preserve the spirit and intent of the c h a , it is important to understand the border spaces around

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the c ha, which, while not directly part of the ch a, can nonetheless both augment and erode its functions. To that end, we have attempted to provide a clear and practical guide to some of the less-visible threads that make up Canada’s Medicare “system.” Only by appreciating how these strands weave together in the provision, financing, and regulation of universal health coverage services can we really begin to think about how to enhance Canadian Medicare for the generations to come.

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Append ix A The Canada Health Act

The authors have highlighted the sections of the cha directly related to the discussion presented in this book.

R . S . C . , 1 9 8 5 , c. C-6 An Act relating to cash contributions by Canada and relating to criteria and conditions in respect of insured health services and extended health care services

P r e a m ble WHER EAS the Parliament of Canada recognizes: —that it is not the intention of the Government of Canada that any of the powers, rights, privileges or authorities vested in Canada or the provinces under the provisions of the Constitution Act, 1867, or any amendments thereto, or otherwise, be by reason of this Act abrogated or derogated from or in any way impaired; —that Canadians, through their system of insured health services, have made outstanding progress in treating sickness and alleviating the consequences of disease and disability among all income groups; —that Canadians can achieve further improvements in their well-being through combining individual lifestyles that emphasize fitness, prevention of disease and health promotion with collective action against the social, environmental and occupational causes of disease, and that

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they desire a system of health services that will promote physical and mental health and protection against disease; —that future improvements in health will require the cooperative partnership of governments, health professionals, voluntary organizations and individual Canadians; —that continued access to quality health care without financial or other barriers will be critical to maintaining and improving the health and well-being of Canadians; A N D W H E R E A S the Parliament of Canada wishes to encourage the development of health services throughout Canada by assisting the provinces in meeting the costs thereof; NOW, THEREFORE, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

S h o rt T itle 1  This Act may be cited as the Canada Health Act. 1984, c. 6, s. 1

In t e r p r e tati on 2  In this Act, Act of 1977 [Repealed, 1995, c. 17, s. 34] cash contribution  means the cash contribution in respect of the Canada Health Transfer that may be provided to a province under sections 24.2 and 2.21 of the Federal-Provincial Fiscal Arrangements Act; (contribution pécuniaire) contribution [Repealed, 1995, c. 17, s. 34] dentist  means a person lawfully entitled to practise dentistry in the place in which the practice is carried on by that person;  (dentiste)

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extended health care services  means the following services, as more particularly defined in the regulations, provided for residents of a province, namely, (a)  nursing home intermediate care service, (b)  adult residential care service, (c)  home care service, and (d) ambulatory health care service;  (services complémentaires de santé) extra-billing  means the billing for an insured health service ­rendered to an insured person by a medical practitioner or a dentist in an amount in addition to any amount paid or to be paid for that service by the health care insurance plan of a province; (surfacturation) health care insurance plan  means, in relation to a province, a plan or plans established by the law of the province to provide for insured health services;  (régime d’assurance-santé) health care practitioner  means a person lawfully entitled under the law of a province to provide health services in the place in which the services are provided by that person;  (professionnel de la santé) hospital  includes any facility or portion thereof that provides hospital care, including acute, rehabilitative or chronic care, but does not include (a)  a hospital or institution primarily for the mentally disordered, or (b)  a facility or portion thereof that provides nursing home intermediate care service or adult residential care service, or comparable services for children;  (hôpital) hospital services  means any of the following services provided to in-patients or out-patients at a hospital, if the services are medically necessary for the purpose of maintaining health, preventing disease or diagnosing or treating an injury, illness or disability, namely,

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Appendix A

(a)  accommodation and meals at the standard or public ward level and preferred accommodation if medically required, (b)  nursing service, (c)  laboratory, radiological and other diagnostic procedures, together with the necessary interpretations, (d)  drugs, biologicals and related preparations when administered in the hospital, (e)  use of operating room, case room and anaesthetic facilities, including necessary equipment and supplies, (f)  medical and surgical equipment and supplies, (g)  use of radiotherapy facilities, (h)  use of physiotherapy facilities, and (i)  services provided by persons who receive remuneration therefor from the hospital, but does not include services that are excluded by the regulations; (services hospitaliers) insured health services  means hospital services, physician services and surgical-dental services provided to insured persons, but does not include any health services that a person is entitled to and eligible for under any other Act of Parliament or under any Act of the legislature of a province that relates to workers’ or workmen’s compensation;  (services de santé assurés) insured person  means, in relation to a province, a resident of the province other than (a)  a member of the Canadian Forces, (b)  [Repealed, 2012, c. 19, s. 377] (c)  a person serving a term of imprisonment in a penitentiary as defined in Part I of the Corrections and Conditional Release Act, or (d)  a resident of the province who has not completed such minimum period of residence or waiting period, not exceeding three months, as may be required by the province for eligibility for or entitlement to insured health services;  (assuré)

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medical practitioner  means a person lawfully entitled to practise medicine in the place in which the practice is carried on by that person; (médecin) Minister  means the Minister of Health;  (ministre) physician services  means any medically required services rendered by medical practitioners;  (services médicaux) resident  means, in relation to a province, a person lawfully entitled to be or to remain in Canada who makes his home and is ordinarily present in the province, but does not include a tourist, a transient or a visitor to the province;  (habitant) surgical-dental services  means any medically or dentally required surgical-dental procedures performed by a dentist in a hospital, where a hospital is required for the proper performance of the procedures; (services de chirurgie dentaire) user charge  means any charge for an insured health service that is authorized or permitted by a provincial health care insurance plan that is not payable, directly or indirectly, by a provincial health care insurance plan, but does not include any charge imposed by extrabilling. (frais modérateurs) R.S., 1985, c. C-6, s. 2 1992, c. 20, s. 216(F) 1995, c. 17, s. 34 1996, c. 8, s. 32 1999, c. 26, s. 11 2012, c. 19, ss. 377, 407 2017, c. 26, s. 11(E)

C a n a d ia n H e a lt h Care Poli cy 3  It is hereby declared that the primary objective of Canadian health care policy is 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. 1984, c. 6, s. 3

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P u r p o se 4  The purpose of this Act is to establish criteria and conditions in respect of insured health services and extended health care services provided under provincial law that must be met before a full cash contribution may be made. R.S., 1985, c. C-6, s. 4 1995, c. 17, s. 35

C as h C o n t r ib uti on 5  Subject to this Act, as part of the Canada Health Transfer, a full cash contribution is payable by Canada to each province for each fiscal year. R.S., 1985, c. C-6, s. 5 1995, c. 17, s. 36 2012, c. 19, s. 408

6 [Repealed, 1995, c. 17, s. 36]

P ro g r a m C r i teri a 7  In order that a province may qualify for a full cash contribution referred to in section 5 for a fiscal year, the health care insurance plan of the province must, throughout the fiscal year, satisfy the criteria described in sections 8 to 12 respecting the following matters: (a)  public administration; (b) comprehensiveness; (c) universality; (d)  portability; and (e) accessibility. 1984, c. 6, s. 7

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P u b l ic A d m in i s trati on 8 (1) In order to satisfy the criterion respecting public administration, (a)  the health care insurance plan of a province must be administered and operated on a non-profit basis by a public authority appointed or designated by the government of the province; (b)  the public authority must be responsible to the provincial government for that administration and operation; and (c) the public authority must be subject to audit of its accounts and financial transactions by such authority as is charged by law with the audit of the accounts of the province. Designation of Agency Permitted (2)  The criterion respecting public administration is not contravened by reason only that the public authority referred to in subsection (1) has the power to designate any agency (a)  to receive on its behalf any amounts payable under the provincial health care insurance plan; or (b)  to carry out on its behalf any responsibility in connection with the receipt or payment of accounts rendered for insured health services, if it is a condition of the designation that all those accounts are subject to assessment and approval by the public authority and that the public authority shall determine the amounts to be paid in respect thereof. 1984, c. 6, s. 8

Comprehensiveness 9  In order to satisfy the criterion respecting comprehensiveness, the health care insurance plan of a province must insure all insured health services provided by hospitals, medical practitioners or dentists, and

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where the law of the province so permits, similar or additional services rendered by other health care practitioners. 1984, c. 6, s. 9

Universality 10  In order to satisfy the criterion respecting universality, the health care insurance plan of a province must entitle one hundred per cent of the insured persons of the province to the insured health services provided for by the plan on uniform terms and conditions. 1984, c. 6, s. 10

Portability 11  (1)  In order to satisfy the criterion respecting portability, the health care insurance plan of a province (a)  must not impose any minimum period of residence in the province, or waiting period, in excess of three months before residents of the province are eligible for or entitled to insured health services; (b)  must provide for and be administered and operated so as to provide for the payment of amounts for the cost of insured health services provided to insured persons while temporarily absent from the province on the basis that (i)  where the insured health services are provided in Canada, payment for health services is at the rate that is approved by the health care insurance plan of the province in which the services are provided, unless the provinces concerned agree to apportion the cost between them in a different manner, or

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(ii)  where the insured health services are provided out of Canada, payment is made on the basis of the amount that would have been paid by the province for similar services rendered in the province, with due regard, in the case of hospital services, to the size of the hospital, standards of service and other relevant factors; and (c)  must provide for and be administered and operated so as to provide for the payment, during any minimum period of ­residence, or any waiting period, imposed by the health care insurance plan of another province, of the cost of insured health services provided to persons who have ceased to be insured persons by reason of having become residents of that other province, on the same basis as though they had not ceased to be residents of the province. Requirement for Consent for Elective Insured Health Services Permitted (2)  The criterion respecting portability is not contravened by a requirement of a provincial health care insurance plan that the prior consent of the public authority that administers and operates the plan must be obtained for elective insured health services provided to a resident of the province while temporarily absent from the province if the services in question were available on a substantially similar basis in the province. Definition of Elective Insured Health Services (3)  For the purpose of subsection (2),  elective insured health ­services means insured health services other than services that are provided in an emergency or in any other circumstance in which medical care is required without delay. 1984, c. 6, s. 11

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Accessibility 12  (1)  In order to satisfy the criterion respecting accessibility, the health care insurance plan of a province (a)  must provide for insured health services on uniform terms and conditions and on a basis that does not impede or preclude, either directly or indirectly whether by charges made to insured persons or otherwise, reasonable access to those services by insured persons; (b)  must provide for payment for insured health services in accordance with a tariff or system of payment authorized by the law of the province; (c)  must provide for reasonable compensation for all insured health services rendered by medical practitioners or dentists; and (d)  must provide for the payment of amounts to hospitals, including hospitals owned or operated by Canada, in respect of the cost of insured health services. Reasonable Compensation (2)  In respect of any province in which extra-billing is not permitted, paragraph (1)(c) shall be deemed to be complied with if the province has chosen to enter into, and has entered into, an agreement with the medical practitioners and dentists of the province that provides (a)  for negotiations relating to compensation for insured health services between the province and provincial organizations that represent practising medical practitioners or dentists in the province; (b)  for the settlement of disputes relating to compensation through, at the option of the appropriate provincial organizations referred to in paragraph (a), conciliation or binding arbitration by a panel that is equally representative of the provincial organizations and the province and that has an independent chairman; and

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(c)  that a decision of a panel referred to in paragraph (b) may not be altered except by an Act of the legislature of the province. 1984, c. 6, s. 12

C o n d it io n s f o r C ash Contri buti on Conditions 13  In order that a province may qualify for a full cash contribution referred to in section 5, the government of the province (a)  shall, at the times and in the manner prescribed by the regulations, provide the Minister with such information, of a type prescribed by the regulations, as the Minister may reasonably require for the purposes of this Act; and (b)  shall give recognition to the Canada Health Transfer in any public documents, or in any advertising or promotional material, relating to insured health services and extended health care services in the province. R.S., 1985, c. C-6, s. 13 1995, c. 17, s. 37 2012, c. 19, s. 409(E)

D e fau lts Referral to Governor in Council 14  (1)  Subject to subsection (3), where the Minister, after consultation in accordance with subsection (2) with the minister responsible for health care in a province, is of the opinion that (a)  the health care insurance plan of the province does not or has ceased to satisfy any one of the criteria described in sections 8 to 12, or

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(b)  the province has failed to comply with any condition set out in section 13, and the province has not given an undertaking satisfactory to the Minister to remedy the default within a period that the Minister considers reasonable, the Minister shall refer the matter to the Governor in Council. Consultation Process (2)  Before referring a matter to the Governor in Council under subsection (1) in respect of a province, the Minister shall (a)  send by registered mail to the minister responsible for health care in the province a notice of concern with respect to any problem foreseen; (b)  seek any additional information available from the province with respect to the problem through bilateral discussions, and make a report to the province within ninety days after sending the notice of concern; and (c)  if requested by the province, meet within a reasonable period of time to discuss the report. Where No Consultation Can Be Achieved (3)  The Minister may act without consultation under subsection (1) if the Minister is of the opinion that a sufficient time has expired after reasonable efforts to achieve consultation and that consultation will not be achieved. 1984, c. 6, s. 14

Order Reducing or Withholding Contribution 15  (1)  Where, on the referral of a matter under section 14, the Governor in Council is of the opinion that the health care insurance plan of a province does not or has ceased to satisfy any one of the criteria described in sections 8 to 12 or that a province has failed to comply with any condition set out in section 13, the Governor in Council may, by order,

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(a)  direct that any cash contribution to that province for a fiscal year be reduced, in respect of each default, by an amount that the Governor in Council considers to be appropriate, having regard to the gravity of the default; or (b)  where the Governor in Council considers it appropriate, direct that the whole of any cash contribution to that province for a fiscal year be withheld. Amending Orders (2)  The Governor in Council may, by order, repeal or amend any order made under subsection (1) where the Governor in Council is of the opinion that the repeal or amendment is warranted in the circumstances. Notice of Order (3)  A copy of each order made under this section together with a statement of any findings on which the order was based shall be sent forthwith by registered mail to the government of the province ­concerned and the Minister shall cause the order and statement to be laid before each House of Parliament on any of the first fifteen days on which that House is sitting after the order is made. Commencement of Order (4)  An order made under subsection (1) shall not come into force earlier than thirty days after a copy of the order has been sent to the government of the province concerned under subsection (3). R.S., 1985, c. C-6, s. 15 1995, c. 17, s. 38

Reimposition of Reductions or Withholdings 16  In the case of a continuing failure to satisfy any of the criteria described in sections 8 to 12 or to comply with any condition set out in section 13, any reduction or withholding under section 15 of a cash contribution to a province for a fiscal year shall be reimposed for each

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Appendix A

succeeding fiscal year as long as the Minister is satisfied, after consultation with the minister responsible for health care in the province, that the default is continuing. R.S., 1985, c. C-6, s. 16 1995, c. 17, s. 39

When Reduction or Withholding Imposed 17  Any reduction or withholding under section 15 or 16 of a cash contribution may be imposed in the fiscal year in which the default that gave rise to the reduction or withholding occurred or in the following fiscal year. R.S., 1985, c. C-6, s. 17 1995, c. 17, s. 39

E x t r a - b il l in g a n d Us er Charges Extra-billing 18  In order that a province may qualify for a full cash contribution referred to in section 5 for a fiscal year, no payments may be permitted by the province for that fiscal year under the health care insurance plan of the province in respect of insured health services that have been subject to extra-billing by medical practitioners or dentists. 1984, c. 6, s. 18

User Charges 19  (1)  In order that a province may qualify for a full cash contribution referred to in section 5 for a fiscal year, user charges must not be permitted by the province for that fiscal year under the health care insurance plan of the province.

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Limitation

(2)  Subsection (1) does not apply in respect of user charges for accommodation or meals provided to an in-patient who, in the opinion of the attending physician, requires chronic care and is more or less permanently resident in a hospital or other institution. 1984, c. 6, s. 19

Deduction for Extra-billing 20  (1)  Where a province fails to comply with the condition set out in section 18, there shall be deducted from the cash contribution to the province for a fiscal year an amount that the Minister, on the basis of information provided in accordance with the regulations, d ­ etermines to have been charged through extra-billing by medical practitioners or dentists in the province in that fiscal year or, where information is not provided in accordance with the regulations, an amount that the Minister estimates to have been so charged. Deduction for User Charges (2)  Where a province fails to comply with the condition set out in section 19, there shall be deducted from the cash contribution to the province for a fiscal year an amount that the Minister, on the basis of information provided in accordance with the regulations, determines to have been charged in the province in respect of user charges to which section 19 applies in that fiscal year or, where information is not provided in accordance with the regulations, an amount that the Minister estimates to have been so charged. Consultation with Province (3)  The Minister shall not estimate an amount under subsection (1) or (2) without first undertaking to consult the minister responsible for health care in the province concerned.

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Separate Accounting in Public Accounts (4)  Any amount deducted under subsection (1) or (2) from a cash contribution in any of the three consecutive fiscal years the first of which commences on April 1, 1984 shall be accounted for separately in respect of each province in the Public Accounts for each of those fiscal years in and after which the amount is deducted. Refund to Province (5)  Where, in any of the three fiscal years referred to in subsection (4), extra-billing or user charges have, in the opinion of the Minister, been eliminated in a province, the total amount deducted in respect of extra-billing or user charges, as the case may be, shall be paid to the province. Saving (6)  Nothing in this section restricts the power of the Governor in Council to make any order under section 15. 1984, c. 6, s. 20

When Deduction Made 21  Any deduction from a cash contribution under section 20 may be made in the fiscal year in which the matter that gave rise to the deduction occurred or in the following two fiscal years. 1984, c. 6, s. 21

R e g u l at io ns Regulations 22  (1)  Subject to this section, the Governor in Council may make regulations for the administration of this Act and for carrying its purposes and provisions into effect, including, without restricting the generality of the foregoing, regulations

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(a)  defining the services referred to in paragraphs (a) to (d) of the definition extended health care services in section 2; (b)  prescribing the services excluded from hospital services; (c)  prescribing the types of information that the Minister may require under paragraph 13(a) and the times at which and the manner in which that information shall be provided; and (d)  prescribing the manner in which recognition to the Canada Health Transfer is required to be given under paragraph 13(b). Agreement of Provinces (2)  Subject to subsection (3), no regulation may be made under paragraph (1)(a) or (b) except with the agreement of each of the provinces. Exception (3)  Subsection (2) does not apply in respect of regulations made under paragraph (1)(a) if they are substantially the same as regulations made under the Federal-Provincial Fiscal Arrangements Act, as it read immediately before April 1, 1984. Consultation with Provinces (4)  No regulation may be made under paragraph (1)(c) or (d) unless the Minister has first consulted with the ministers responsible for health care in the provinces. R.S., 1985, c. C-6, s. 22 1995, c. 17, s. 40 2012, c. 19, s. 410(E)

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R e p o rt to P a rli ament Annual Report by Minister 23  The Minister shall, as soon as possible after the termination of each fiscal year and in any event not later than December 31 of the next fiscal year, make a report respecting the administration and operation of this Act for that fiscal year, including all relevant information on the extent to which provincial health care insurance plans have satisfied the criteria, and the extent to which the provinces have satisfied the conditions, for payment under this Act and shall cause the report to be laid before each House of Parliament on any of the first fifteen days on which that House is sitting after the report is completed. 1984, c. 6, s. 23

Source: https://laws-lois.justice.gc.ca/eng/acts/c-6/page-2.html#docCont.

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Append ix B Federal, Provincial, and Territorial Legislation Pertaining to Medicare

P e rt in e n t F e d e r a l Legi slati on a n d R e g u lati on Corrections and Conditional Release Act, S.C. 1992, c. 20 • Health care provisions, sections 85–9 Department of Indigenous Service Act, S.C. 2019, c. 1 Department of Veterans Affairs Act, R.S.C. 1985, c. V-1 • Veterans Health Care Regulations, S.O.T./90-594 Immigration and Refugee Protection Act, S.C. 2001, c. 27 • Rights and obligations of permanent and temporary residents, Sections 27–30 National Defence Act, R.S.C. 1985, c. N-5 • Canadian Forces Dental Treatment by Civilians Regulations, C.R.C., c. 1045 • Civilian Dental Treatment Regulations, C.R.C., c. 682. • Queen’s Regulations and Orders (issued under authority of Section 12) – Chapter 34 (medical services) – Chapter 35 (dental services) Injured Military Members Compensation Act, S.C. 2003, c. 14

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Appendix B

P rov in c ia l a n d T e r ri tori al Laws P e rta in in g to M edi care Alberta • Alberta Health Care Insurance Act, R.S.A. 2000, c. A-20 (universal medical care coverage) • Hospitals Act, R.S.A. 2000, c A-20 (universal hospital care coverage in part 3) British Columbia • Hospital Insurance Act, R.S.B.C. 1996, c. 204 (universal hospital care coverage) • Medical Protection Act, R.S.B.C. 1996, c. 286 (universal medical care coverage) Manitoba • Health Services Insurance Act, C.C.S.M., c. H35 (universal coverage for both hospital care and medical care) New Brunswick • Hospital Services Act, R.S.N.B. 1973, c. H-9 (universal hospital care coverage) • Medical Services Payment Act, R.S.N.B. 1973, c. M-7 (universal medical care coverage) Newfoundland and Labrador • Medical Care and Hospital Insurance Act, S.N.L. 2016, c. M-5.01 (universal coverage for both hospital care and medical care) Northwest Territories • Hospital Insurance and Health and Social Services Administration Act, R.S.N.W.T. 1988, c. T-3 (universal hospital coverage) • Medical Care Act, R.S.N.W.T. 1988, c. M-8 (universal medical care coverage)

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Nova Scotia • Health Services and Insurance Act, R.S. 1989, c. 197, s.1 (universal coverage for both hospital care and medical care) Nunavut (adopted existing laws from Northwest Territories when ­created in 1999) • Hospital Insurance and Health and Social Services Administration Act, R.S.N.W.T. 1988, c. M-8 (universal hospital care coverage) • Medical Care Act, R.S.N.W.T. 1988, c. M-8 (universal medical care coverage) Ontario • Health Insurance Act, R.S.O. 1990, c. H.6 (universal coverage for both hospital care and medical care) Prince Edward Island • Hospital and Diagnostic Services Insurance Act, R.S.P.E.I. 1988, c. H-8 (hospital care coverage) • Health Services Payment Act, R.S.P.E.I. 1988, c. H-2 (universal medical care coverage) Quebec • Hospital Insurance Act, R.S.Q., c. A-28 (universal hospital care coverage) • Health Insurance Act, R.S.Q., c. A-29 (universal medical care coverage) Saskatchewan • Provincial Health Authority Act, S.S. 2017, c. P-30.3 (universal hospital care coverage but very indirect) • Saskatchewan Medical Care Insurance Act, R.S.S. 1978, c. S-29 (universal medical care coverage) Yukon • Hospital Insurance Services Act, R.S.Y. 2002, c. 112 (universal hospital care coverage) • Health Care Insurance Plan Act, R.S.Y. 2002, c. 107 (universal medical care coverage)

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Index

access, 3–6, 8–9, 11–17, 19, 25–6, 30–1, 36, 39–42, 51, 53–5, 57, 60, 64–8, 70–9, 81, 83–8, 91, 93–5, 97–101, 103, 105–14, 116–20, 122, 124–7, 129, ­130–2, 134–8, 142, 145–6, 149; access rules, 3–5, 39, 51, 73, 99, 118, 132, 138; financial barriers to care, ii, 5, 26, 33–4, 39, 93, 125, 131, 142, 145, 147; ­geographical barriers to care, 59, 73, 83–4, 91, 97–8, 100, 111, 125, 138, 142–5; timeliness of care as barrier, 39, 131. See also wait lists (wait times) Accreditation Canada, 61 acute care, 27, 42, 111–12, 122, 134 addiction. See substance abuse and addiction Afghanistan, war in, 44, 46, 48; Kandahar, 46 Africa, 48 Alberta, 22, 30, 34, 37, 41, 56, 69, 80, 86, 105, 130, 160 alcohol abuse, 52, 55, 57, 66, 71 ambulatory care, 15, 122, 143

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Anderson, Jordan Rivers, 117 Asia, 48 Association of Workers’ Compensation Boards of Canada, ix, 32, 34, 36 asylum seekers. See refugees: ­refugee claimants Athabasca Health Authority, Saskatchewan, 111, 115 Auditor General of Canada, Office of the, 46, 54 Balanced Refugee Reform Act, 88 billing codes, 11, 27–8, 94, 121, 125, 132 British Columbia, 19, 22, 30–1, 34, 37–8, 45, 46, 56, 63, 69, 79–80, 86, 90, 114, 130, 134, 160 Cabinet, 51, 96, 99 Cambie Surgeries Corporation v. British Columbia, 19–20, 31, 40, 134 Canada Health Act (c ha ), ix, 3, 5, 7–18, 59, 65, 77, 87, 109–14, 116–17, 119, 121, 127, 134–6, 138, 141; accessibility

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188 Index

(legislatively defined), 149–50; annual report (legislatively required), 157; comprehensiveness (legislatively defined), 6, 125, 127, 146–8; deduction for, 8, 129, 131, 154–6; enforcement (legislatively defined), 151–4; extended health care services (legislatively defined), 141, 143, 146, 151, 156; extra-billing (legislatively defined), 154; deduction for, 129, 131, 143, 150, 154–6; funding criteria, vii, 5–6; insured health services (legislatively defined), 6, 9, 12, 14, 20, 27, 88, 100, 126, 141, 143–54; insured person (­legislatively defined), 7, 10–12, 42, 77, 134–5, 144, 148; insured person (medically necessary or medically required), 9, 74, 114, 127, 135, 143–4, 145; ­interpretation l­etters, 8, 121, 138 (Epp letter, 8; Marleau letter, 9, Petipas Taylor letter, 9); ­modernization, 136; portability (­legislatively defined), 6, 43, 73, 127–8, 146, 148–9; public administration (legislatively defined), 6, 116, 146–7; resident (legislatively defined), 3, 6–7, 9–10, 12–14, 19, 42, 44, 67, 74, 77–9, 87–8, 94–5, 100, 1 ­ 02–3, 106–8, 110–11, 114, 116, ­118–19, 121–2, 124–8, 131–2, 135–6, 143–5, 148–9, 154, 159; ­universality (legislatively defined), 6, 108–10, 117, 1 ­ 26–32, 134, 146, 148; user charges (­legislatively defined), 154

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Canada Health Transfer, 8, 58, 112, 114, 129, 131, 142, 146, 151, 157 Canada Pension Plan, 39 Canadian Armed Forces (c a f), v, vii, ix, 3, 10–11, 42–5, 47, 49, 51, 53, 55, 68, 94, 128, 133–4, 138; Canadian Armed Forces Clinics, 48–9 (Care Delivery Unit, 48); Canadian Army Medical Corps, 44–5; Canadian Forces Health Services Group (hsg), ix, 48; Canadian Forces Medical Service, 45; Canadian Forces School of Survival and Aeromedical Training, 48; Chief of the Defence Staff, 52; civilian providers, 48; conflict zones, medical care in, 10, 43, 46, 49, 53; deployments, 10, 53; family members, 42–3; field ­ambulances, 48; as fourteenth health system, 42, 54–5, 134; ­in-garrison care, 10, 43; members of regular forces, 42, 46, 52; ­military hospitals, 10; mobile medical units, 48; reserves/reservists, 15, 25, 42, 44, 53, 104–5, 107, 109, ­110–11, 114, 118, 136; Royal Canadian Air Force, 45; Royal Canadian Dental Service, 45; Royal Canadian Medical Service, 45; Royal Canadian Navy, 45; School of Operational Medicine Toronto, 48; sick parade, 49; specialized care, 42; Surgeon General, 48, 52; veterans, v, vii, 8, 42–5, 47–51, 53–5, 94, 134, 159

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Index 189

Canadian Association of Refugee Lawyers, 91–2 Canadian Border Services Agency, ix, 78 Canadian Charter of Rights and Freedoms, 19, 37, 76, 91; ­challenges to, 16, 19, 58; violations of, 60 Canadian Council for Refugees, 90–1, 97–9 Canadian Doctors for Refugee Care, 91, 98–9 Canadian Medical Association, ix, 122, 130 Caribbean, the, 48, 80–1 chronic disease, 132 chronic pain, 33, 37, 53, 57 College of Family Physicians of Canada, 91 Commission on the Future of Health Care in Canada, 40 Commonwealth Fund, 131 community health centres, 107, 136 computers, 121–2; computer ­literacy (patients’ and ­providers’), 84 Constitution Act (Canada), 52, 78, 137, 141 correctional facilities, 3, 11–12, 56–65, 67–9, 71–5. See also prisons Correctional Service Canada, vii, 13, 56–8, 60–1, 63–8, 70–1, 73–6, 135; Community Correctional Centres, ix, 62; Community Residential Facilities, ix, 70, 73; discharge planning, 64, 71; Health Services sector, 60–2, 68; National Advisory Committee on Essential

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Health Services, 64; National Essential Health Services Framework Act, 60, 64–5, 74; Office of the Correctional Investigator, ix, 57–8, 60–1, 66, 70–2, 74–5; psychiatric treatment centres, 52; Regional Treatment Centres, 62, 67, 69; solitary confinement, 63, 67, 71 Corrections and Conditional Release Act, ix, 11, 57, 60, 144, 159 cost-shifting, 14, 40 c ov id-19 pandemic, 5, 14, 44, 83, 120–1, 130, 137 Cree Board of Health and Social Services of James Bay Quebec, 115 decision space analysis, 4 dental care, 42–3, 49–50, 58, 65, 68, 87, 93, 102, 107–8 Department of Indigenous Services Act, 137, 159 Department of National Defence, Government of Canada, ix, 11, 43, 46, 49, 51–2 Department of National Health and Welfare, Government of Canada, 69, 106–7 Department of Veterans Act, 50, 54, 159; and Veterans Health Care Regulations, 159 Department of Veterans Affairs Act, 54, 159; and Veterans Health Care Regulations, 159 Department of Veterans Affairs, Government of Canada, 54; Disability Benefits Program, 54; DermaGO, 124

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190 Index

Devlin, Michael, 76 Devlin v. Correctional Service Canada, 168 diagnostic equipment, 30 diagnostic services, 4, 7, 9, 27, 29, 106, 108 diagnostic testing, 4, 7, 9, 27, 29, 30–1, 49, 53, 64–5, 71, 75, 87–8, 93, 95, 104, 106, 108, 110–14, 127, 131, 144, 161 Emergencies Act, 83 Employment and Social Development Canada, Department of (es dc), ix, 78 employment benefit plans (­private health insurance), 6, 30, 54, 77, 81, 85, 99, 107, 129–30 Employment Insurance, 39 Europe, 20, 48 extended health care, 44, 141, 143, 146, 151, 156 extra-billing, 129, 131, 143, 150, 154–6. See also Canada Health Act (c h a) federal correctional institutions, 112 Federal Court, 91–2 federal, provincial, and territorial (f p t ) governments, ix, 17, 26, 62, 67 Federal, Provincial and Territorial Virtual Care / Digital Table, 130 First Nations, 3, 5, 14–15, 102–5, 107–19, 136–7; bands (as defined under Indian Act), 105, 114; governments, 109–10, 114, 119; reserves, 15, 25, 42, 104–5, 107, 109–11, 114, 118, 136

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First Nations Health Authority (British Columbia), 114 First Nations treaties (with Crown through Government of Canada), 105; differing ­interpretations of, 108–9; “­medicine chest” clause, 105 First World War, 44 Fort Qu’Appelle Tribal Council’s First Nations Health Hospital, Saskatchewan, 115 fourteenth health system, 42, 54–5, 134. See also Canadian Armed Forces (c a f) Geneva Convention (relating to the Status of Refugees), 87 Gladue (court decision), 57 guest workers, 135–6. See also ­temporary foreign workers Harper, Stephen, 11, 13, 88–9, 96, 135 Health Canada, 9, 68, 109, 125–6, 130; First Nations and Inuit Health Branch, 109 health insurance, 6, 11–14, 20, 25, 27, 40, 54, 73, 77, 81, 84–8, 90, 93, 97–100, 107, 129, 130 health premiums. See taxes health spending, 28, 46, 69; federal, 26; provincial and territorial (pt), 45 home care, 4, 12, 17, 44, 87, 93, 104, 107, 113, 134, 143 Hospital Insurance and Diagnostic Services Act (1957), 7, 106, 108, 161 hospitals, 5, 6, 8, 10, 15, 29, 32, 42, 45–9, 65–7, 69, 73, 90, 95,

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Index 191

105–7, 111, 118, 122, 125, 134, 144–7, 150, 160; “Indian” ­hospitals, 105–6 humanitarian migrants. See refugees Immigration and Refugee Protection Act, 83, 94, 159 Immigration Levels Plan, 96 Immigration, Refugees, and Citizenship Canada, Department of (i rcc), ix, 48, 78, 88, 92, 94 Indian Act, 14, 102–3, 105, 108, 114; registered Indians (­definition), 14, 102–10, 112–13, 133 Indian Health Policy (1979), 107, 109 Indian Health Service (i hs ), ix Indigenous peoples, 6, 14, 17, 57, 102–3, 105, 109, 112, 117–19, 133, 138–7; colonialism, 102, 117; racism, 102, 117; self-­ determination, 15, 114, 116–17; tripartite agreements, 15, 111, 115–16 Indigenous Services Canada, 104, 108, 111 information technology, 121 Injured Military Members Compensation Act, 159 inmates (prisoners), 7–8, 11, 56, 58, 60, 64–8, 70–4, 112, 128, 133, 135 insured health services. See under Canada Health Act (cha) insured persons. See under Canada Health Act (cha) Interim Federal Health Program (i f h p ), 13, 86, 96

33252_Fierlbeck-Marchildon.indd 191

Interprovincial Reciprocal Payment Agreement for Hospital Services, 128 Interprovincial Reciprocal Payment Agreement for Physician Services, 128 Inuit, 3, 5, 14–15, 43–4, 56, 71–2, 102–10, 112–18, 133, 135–7; Inuit land claim organizations, 102–3, 108, 114 Jobs, Growth and Long-term Prosperity Act, 11, 135 John Howard Society, 58, 64, 70, 76 Jordan’s principle, 118 Kandahar. See Afghanistan, war in Kenney, Jason, 89 Kingston Penitentiary, 7, 59, 61, 63, 69 laboratory testing (medical), 46, 49, 87, 93, 144 Labour Market Impact Assessment, ix, 79 land claims agreements, 106 landed immigrants. See permanent residents Lavoie, Josée, 102, 105, 107, ­109–11, 114–15, 117–18 long-term care, 4, 17, 44, 50–1, 87, 93, 104, 107, 113, 134; facilities, 44, 113, 134 Manitoba, 22, 34, 37, 80, 108, 118, 160 Maple (Getmaple.ca), 38, 124 Medavie Blue Cross, 48, 90–1, 94, 98–9 medevac (medical evacuation), 112

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192 Index

medical care, definition of, 7, 9–10, 19, 43–5, 49–50, 80, 90, 104, 106–8, 112–14, 122, 125, 134, 160–1 Medical Care Act (1966), 7, 108, 113 medical devices, 58, 93 medical records, 44 Medicare Protection Act (bc), 19, 160 Medicare, i, ii, iii, v, 1, 3–20, 22, 24, 26, 28, 30, 32, 34–6, 38–40, 42, 44, 46–8, 50–2, 54–5, 58, 60, 64, 66, 68, 70–6, 78, 80, 82, 84, 86–90, 92, 94–6, 98, 100–4, ­106–14, 116–39, 159, 160; ­architecture, 15, 117, 120, ­127–8, 130–3, 137; regulatory ­frameworks, 20, 59, 129, 131; single-tier, 126, 128–9, 131–2; two-tier, 55, 76, 126, 128, ­131–2, 134 mental health, 37, 43, 47, 49, 52, 53, 54, 55, 60, 61, 62, 64, 65, 67, 68, 69, 71, 72, 73, 74, 84, 132, 142 mental health services, 47, 49, 52–4, 68–9, 74 mental illness. See mental health Meredith report, 9, 22–4, 26 Métis, 14, 103–4, 113, 117, 137 Miller, Ashley, 68, 75 musculoskeletal conditions, 27, 53, 84 National Defence Act, 49, 159 National Health and Welfare. See Department of National Health and Welfare, Government of Canada

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New Brunswick 22, 33, 37, 76, 80, 126, 160 Newfoundland and Labrador, 22, 33, 37, 46, 56, 89, 160 Non-Insured Health Benefits (nihb ) program, ix, 14, 102–4, 107–9, 112–13 Northwest Territories, 22, 32, 34, 37, 80, 107–8, 160–1 Norway House Cree Nation (Manitoba), 117 Nova Scotia, 22, 26, 33, 35, 37, 45, 56, 58, 76, 79, 80, 126, 137, 161 Nunavik Regional Board of Health and Social Services (Quebec), 108, 115 Nunavut, 32, 34, 37, 108, 114, 121, 161 nurses, 42, 45, 60, 62, 65–6, 87, 107, 112, 134; nursing outposts/ stations, 106; public health nurses, 42, 87, 107, 112 occupational health and safety legislation, 32, 34 occupational therapy, 23, 26, 34–5, 38, 83, 84, 141 Old Age Security (federal ­government program), 39 Ontario, ii, ix, 9, 21–3, 25–7, 30–1, 33, 37–8, 44, 47–8, 56–7, 63, 72, 75–6, 79, 80, 85–6, 90, 103, 108, 115, 122, 123, 130, 161; Ontario Health Insurance Program (ohip), ix, 47; Ontario Medical Association, 47 optometry, 58 orders-in-council, 13, 95–6 over-the-counter non-prescription drugs, 42

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Index 193

Parliament of Canada, 51, 141–2 penitentiaries. See prisons pension plans, 39, 50–1 permanent residents, 77–9, 88, 95, 100 pharmaceuticals. See prescription drugs physicians, 5–6, 8, 10, 27–8, 30, 42, 44, 46, 48, 58, 63, 65, 72, 87, 90–1, 111, 122–4, 128–30, 131, 134, 144; billing codes, 11, 27–8, 94, 121, 125, 132; dual practice, 129; family medicine specialists (general practitioners or GP s), 29, 95, 97, 123–4, 126; Medicare billing numbers, 129, 130; professional corporations, 128; regulatory colleges, 128, 130; specialist referrals, 44, 120, 126; specialists, 27, 44, 49, 90, 123, 124, 134; telephone ­consults, 122–3, 126, 127; ­virtual consultations, 121–3 physiotherapy, 27–8, 30, 49, 53–5, 84, 144 post-traumatic stress disorder (p t s d), x, 38, 52–3 prescription drugs, 4, 17, 42–3, 50–1, 54, 87, 93–4, 100, 107–8, 113, 126 presumptive coverage, 38 primary care, 10, 27, 42, 48–9, 76, 104, 106, 110–12, 119–20, ­122–3, 131–2 Prince Edward Island, 22, 33, 37, 80, 126, 161 prisoners, 3, 6, 11, 56, 58, 60–1, 63, 69, 72, 74, 76, 135, 138 prisons, 11, 56–8, 60, 63, 66, 69, 71, 73, 75, 128

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private health care ,10, 17, 19, 82, 138 private insurance, 12, 26 provincial and territorial (pt), ix, 5–6, 8, 19, 29, 32, 40, 42, 46, 49, 54, 55, 83, 102–4, 110, 112–13, 120, 127–30, 132–3, 136, 138, 159, 160; architecture of Medicare plans, 117, 120, 127, 130, 132–3, 137, 138; extended benefit plans, 50–1, 54; ­governments, 4–6, 8–9, 11, 14, 17, 21–2, 31–2, 39, 41, 44–5, 49, 54, 56, 64, 78, 82, 84, 87, 102–3, 106–14, 116–23, 125–8, 130–2, 135–8, 142; medical associations, 123; medical regulatory colleges, 128, 130; Medicare cards, 113, 128; Medicare laws listed, 160–1, 132–3, 160; Medicare plans, 50, 117, 123, 125–6, 134; residency (including the determination of), 13, 43, 78–9, 97, 107, 112, 135–7 psychologists, 62, 65, 70, 75, 87 public health, ii, iii, 9, 10, 12–13, 26, 30, 36, 40, 41, 61–2, 64–6, 68, 81, 83–4, 88–90, 100, 105, 107, 110, 137–8 public opinion surveys, 122–3 Public Service Health Care Plan, 11 quarantine, 83, 86 Quarantine Act, 83 Quebec, 22, 26, 30, 33, 37, 39, 44, 48, 56, 76, 79, 80, 89, 90, 92, 93, 108, 115, 124, 128, 161; Régie de l’assurance maladie du Québec (r a mq), x, 124; Quebec Pension Plan, 39

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194 Index

Queen’s Regulations and Orders (q r & o ), x, 49, 159 Red Cross, 106 refugees, ix, 6, 7, 13, 17, 48, 78, 83, 86, 89, 90–100, 133, 135, 138; detainees, 94–5; protected ­persons, 89, 93, 95, 97; refugee claimants, 13, 87–91, 93, 95, 97–8, 100; resettled refugees, 13, 87–8, 92–3, 95, 96–100; victims of human trafficking, 13, 78, 94–5 rehabilitation care, 27, 42 residential schools, 109 Royal Canadian Mounted Police (rcm p), x, 7, 10–11, 48, 135 Royal College of Physicians and Surgeons of Canada, 130 rural and remote areas, 105, 107, 108, 110, 121–3, 131 Saskatchewan, 22, 34, 37, 69, 80, 105–6, 108, 111, 115, 161 Seasonal Agricultural Worker Program (saw p), x, 80 Second World War, 45, 59, 106 Sioux Lookout Meno Ya Win Health Centre (Ontario), 115 smartphones, 121 specialists. See physicians substance abuse and addiction, 54–7, 66. See also alcohol abuse supplemental insurance, 13, 89 taxes, 103, 128, 136 telehealth, 38, 121 telemedicine, 38–9. See also virtual care

33252_Fierlbeck-Marchildon.indd 194

Temporary Foreign Worker Program, vii, x, 7, 78, 80, 82–3, 86 temporary foreign workers, 12, 17, 77–81, 83–6, 100 Temporary Health Program, 90 trauma, psychological, 38, 48, 52–5, 100 Trudeau, Justin, 13, 92, 96 Truth and Reconciliation Commission (trc ), x, 109, 121, 137 tuberculosis (tb ), 105–6 undocumented migrants, 77, 83, 98 United Nations (un), 60, 77, 137; Declaration on the Rights of Indigenous Peoples, 137; Standard Minimum Rules for the Treatment of Prisoners (Mandela Rules), 61, 63 United States, 20, 25, 48, 52 universal health coverage (hospital and medical care), vii, 3–4, 8, 45, 126, 139 University Health Network, 90 US Department of Defense (­military health system), 45 user charges, 8, 129, 131, 145, 154, 155, 156. See also Canada Health Act (c ha ) vaccinations, 72, 87, 93 veterans. See Canadian Armed Forces (c a f) Veterans Affairs Canada, 48, 134 Veterans Health Administration (US), 45 virtual care, v, 5, 15–17, 39, 120–7, 129, 130–3, 137–8;

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Index 195

corporations, 126, 128–9, 131; platforms, 120, 122, 126, 131; telephone consults, 122, 126; Virtual Care Task Force, 130; Zoom, 120, 124 vision services. See optometry Vocational Assistance Program, 54 wait lists (wait times), 31, 124, 133–4 walk-in clinics, 91, 126, 130, 132 Weeneebayko Area Health Authority (Ontario), 115

33252_Fierlbeck-Marchildon.indd 195

Workers’ Compensation (wc ), v, vii, ix, x, 3, 7, 9–10, 16, 19, 20–31, 33–7, 39, 40–1, 54, 65, 78, 82–5, 99, 100, 128, 133, 135, 144, 150, 159 working conditions, 21, 78 World Health Organization (who), 61 World War II. See Second World War Yukon, 22, 34, 37, 80, 107–8, 161

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33252_Fierlbeck-Marchildon.indd 196

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