Why I'm Not a Judge
Posts by Greg and Colby piqued my interest in a Supreme Court ruling today. From the Globe story,
I read through the ruling and this passage seems to sum up the reasoning of the majority,
Trying to parse court rulings always leaves me feeling like a bear of very little brains but as I understand it, the ruling was as follows:
1. Canadians (Quebecers) have the right to life, liberty and security of the person guaranteed by s. 7 of the Canadian Charter.
2. Having to wait an unreasonable amount of time for health care can impact these rights.
3. The supreme court considers wait times in the current Quebec health system to be unreasonable.
4. The supreme court believes that aggregate wait times could be reduced by changing the health care system in the manner requested by the people who brought the case.
5. Therefore, the health care system in Quebec is unconstitutional.
Or, to boil it down further - the court knows how to run health care better than the government so it has decided to force the government to change the system to be more to its liking.
It's a good thing I'm not the kind of person who's always getting upset about activist judges or this ruling would drive me nuts.
Maybe it's just confirmation bias at work, but I have to say that I found the reasoning of the dissent a lot more convincing,
----
For the record, I think we probably could improve our health system by somewhat extending the private component of the system. I just think that that is a decision for provincial governments to make, not the courts.
----
Update: Robert has some thoughts at his blahg, and links to Rational Reasons who has some good analysis as well.
Timmy has a pretty sensible reaction (in my opinion) as well.
"In a Thursday's [sic] decision, the country's highest court said the Quebec prohibition [on private health care insurance] contravenes Quebec's Charter of Human Rights and Freedoms, effectively meaning that the province can't bar residents from paying for treatments already covered by medicare.
"In sum, the prohibition on obtaining private health insurance is not constitutional where the public system fails to deliver reasonable services," the court found."
I read through the ruling and this passage seems to sum up the reasoning of the majority,
"The government undeniably has an interest in protecting the public health regime but, given that the evidence falls short of demonstrating that the prohibition on private health insurance protects the public health care system, a rational connection between the prohibition on private health insurance and the legislative objective is not made out. In addition, on the evidence, the prohibition goes further than would be necessary to protect the public system and is thus not minimally impairing. Finally, the benefits of the prohibition do not outweigh its deleterious effects. The physical and psychological suffering and risk of death that may result from the prohibition on private health insurance outweigh whatever benefit - and none has been demonstrated here - there may be to the system as a whole."
Trying to parse court rulings always leaves me feeling like a bear of very little brains but as I understand it, the ruling was as follows:
1. Canadians (Quebecers) have the right to life, liberty and security of the person guaranteed by s. 7 of the Canadian Charter.
2. Having to wait an unreasonable amount of time for health care can impact these rights.
3. The supreme court considers wait times in the current Quebec health system to be unreasonable.
4. The supreme court believes that aggregate wait times could be reduced by changing the health care system in the manner requested by the people who brought the case.
5. Therefore, the health care system in Quebec is unconstitutional.
Or, to boil it down further - the court knows how to run health care better than the government so it has decided to force the government to change the system to be more to its liking.
It's a good thing I'm not the kind of person who's always getting upset about activist judges or this ruling would drive me nuts.
Maybe it's just confirmation bias at work, but I have to say that I found the reasoning of the dissent a lot more convincing,
"Designing, financing and operating the public health system of a modern democratic society remains a challenging task and calls for difficult choices. Shifting the design of the health system to the courts is not a wise outcome."
----
For the record, I think we probably could improve our health system by somewhat extending the private component of the system. I just think that that is a decision for provincial governments to make, not the courts.
----
Update: Robert has some thoughts at his blahg, and links to Rational Reasons who has some good analysis as well.
Timmy has a pretty sensible reaction (in my opinion) as well.
Labels: charter of rights and freedoms, constitution, health care, supereme court
posted by Declan at
Thursday, June 09, 2005
4 Comments:
I'm not sure if you have the argument right. I'd re-route after point 3, to something more like this:
"1. Canadians (Quebecers) have the right to life, liberty and security of the person guaranteed by s. 7 of the Canadian Charter.
"2. Having to wait an unreasonable amount of time for health care can impact these rights.
"3. The supreme court considers wait times in the current Quebec health system to be unreasonable."
4. As a result of the above three points it is a violation of the plaintif's rights to prevent him from seeking his own remedy outside the public system.
By
Andrew Spicer, at 4:08 PM
Thanks for the comment Andrew.
Your point 4 and my point 5 are the same, so really you're just saying that my point 4 was not a factor in the decision.
But that was the whole heart of the case. The government argued that a one-tier system was justified because it led to better wait time performance and the supreme court specifically and at length rejected that argument in their verdict (by coparing us to Europe and saying that if it worked there it could work here). Which seems like a strange thing to do if it wasn't a premise for their conclusion.
What if a 2 tier system results in *longer* (on average) wait times for people? If this is true then not only is it not a violation of people's rights to have a one-tier system, it could be argued (using the majority's logic) that a *two-tier* system is a violation of people's constitutional rights to get timely care.
Maybe I'm wrong but I just don't see how the judgement holds up without the assumption that two-tier care provides better results than one-tier.
If my point 4 is not relevant than the court is saying that a system where people can choose between waiting 9 months for private treatment or 12 months for public treatment is consitutionally acceptable while a system where everyone has to wait 6 months for public treatment is unconstitutional.
And if that's really true then I'm glad we wrote in the notwithstanding clause because I don't think the constitution was written with the purpose of causing poor people to die so that rich people could have their right to private treatment protected.
By
Declan, at 4:50 PM
Declan, I think that this post on Sinister Thoughts and the comments that follow do a very good job of continuing this discussion.
To me, they show how the court could rule the way it did without your point 4. It's not that there is a timely right to care. Rather, if the government is going to block you from pursuing care on your own then they better give you timely care.
As you point out, this can lead to a perverse outcome! Mandatory single-payer can be unconstitutional if it doesn't offer sufficient care, despite the fact that two-tier could make the health care system less efficient. See my current post for more.
By
Andrew Spicer, at 7:54 PM
OK, I see what you're saying, but i still think the ruling depends on point 4 (to justify why the one-tier program is an 'arbitrary' government restriction on liberty not in line with the constitution) but I guess if t:e supreme court can split pretty much 50-50 on this, we don't have to agree either :)
Although, to be argumentative, I'm not sure that even the majority would agree with your assessment. From their ruling: "While an absolute prohibition on private insurance does have a rational connection with the objective of preserving the public plan, the Attorney General of Quebec has not demonstrated that this measure meets the minimal impairment test. It cannot be concluded from the evidence concerning the Quebec plan or the plans of the other provinces of Canada, or from the evolution of the systems of various OECD countries that an absolute prohibition on private insurance is necessary to protect the integrity of the public plan. There are a wide range of measures that are less drastic and also less intrusive in relation to the protected rights."
Even further down, "In this case, the government has prohibited private health insurance that would permit ordinary Quebeckers to access private health care while failing to deliver health care in a reasonable manner, thereby increasing the risk of complications and death. In so doing, it has interfered with the interests protected by s. 7 of the Canadian Charter."
These are arguments which only really hold based on an assumption that private care would lead to better (or at least equally good) outcomes.
Most telling of all is, "Section 11 HOIA and s. 15 HEIA are arbitrary, and the consequent deprivation of the interests protected by s. 7 is therefore not in accordance with the principles of fundamental justice. In order not to be arbitrary, a limit on life, liberty or security of the person requires not only a theoretical connection between the limit and the legislative goal, but a real connection on the facts."
Again, they are arguing there is no factual basis to believe single tier health care is better. That is, they are arguing policy with the government.
Look at the conclusion of the ruling: "Finally, the benefits of the prohibition do not outweigh its deleterious effects. The physical and psychological suffering and risk of death that may result from the prohibition on private health insurance outweigh whatever benefit – and none has been demonstrated here – there may be to the system as a whole."
So if the facts (as they saw it) were that the benefits of the prohibition did outweigh the deleterious (love that word!) effects - presumably they might have ruled differently. So once again the ruling is based on their assessment that two tier is just as good as single tier.
The more I read, the more wrong it seems, but what's done is done, I suppose.
By
Declan, at 9:53 PM
Post a Comment
<< Home