OHIP's Safety Valve Illusory

One reason many Canadians love the government’s health insurance system is their widely held belief that anyone who needs medical treatment gets it, regardless of ability to pay.  While the existence of waiting lists is common knowledge, part of Ontario’s folklore is that there’s a “safety valve” for patients needing urgent care.  Theoretically, when Ontario’s hospitals lack capacity, patients can be treated outside Canada and be reimbursed by the Ontario Health Insurance Plan (OHIP) for the expense.

A tribunal decision handed down on October 20, 2009 to 68-year-old Lindsay McCreith illustrates just how illusory the safety valve can be.

McCreith suffered a sudden, unexplained seizure in January, 2006.  During his 4-day hospitalization, a CT scan of his brain revealed an abnormality—probably a stroke, but possibly a tumour.  He needed an MRI scan for a more precise diagnosis, but the earliest appointment he could get in Ontario was more than four months away. 

Not knowing what might be growing in his head, McCreith and his family made inquiries in Buffalo, New York.  An MRI was performed there within 24 hours.   Diagnosis: definitely a tumour, type uncertain, but requiring removal.

Now McCreith needed a neurosurgeon.  The earliest consultation he could get in Ontario was 3 months away.  Unwilling to risk that delay (and possible further delays between consultation and surgery), McCreith returned to the U.S. for surgery about a month later.  The post-operative biopsy showed his tumour to have been a malignant but slow-growing variety.

He applied to OHIP for reimbursement of the $27,000 he had spent on U.S. treatment.  His application was denied: the law says patients must apply for funding before going abroad for treatment.

McCreith appealed, arguing that a new statutory provision allows reimbursement if the out-of-country services were rendered in “emergency circumstances”.  But on October 20, his appeal was dismissed.  With the benefit of 20/20 hindsight, the tribunal was confidently able to say that his condition had never been an emergency. 

There’s a chicken-and-egg problem here.  Neither McCreith nor OHIP could possibly have known until after the operation whether his cancer was slow-growing or ferociously aggressive. What if his luck had gone the other way?  Suppose he had waited docilely, as Canadians are expected to do, for his turn in the operating room. If his cancer had turned out to be highly aggressive, the Ontario treatment might well have come too late to save his life.

This is not an academic question.  Canadians do die waiting for OHIP approval for out-of-country treatment.  Cancer patients Valerie Niles and Susan Cager-Watson, for instance, both submitted out-of-country funding applications that were initially turned down by OHIP.  In each case, the women successfully persuaded an appeal board to overrule OHIP’s decision.  But by then it was too late.  Each woman had developed complications rendering her ineligible for the U.S. treatment.  Each died shortly afterwards.

The Ontario government expects patients to risk their lives to preserve the government’s  health insurance monopoly. It expects patients to endure months of anxiety not knowing how serious their condition might be.  And even where there’s little risk of death—for example, when patients are awaiting joint replacements—the government expects patients to wait passively in pain, sometimes unable to work, jeopardizing their financial well-being and adversely affecting their families, employers and co-workers.  Meanwhile, treatment capacity stands ready, only a border-hop away.   

McCreith believes the government’s health insurance monopoly violates his rights to life, liberty and security of the person, contained in the Canadian Charter of Rights and Freedoms.  In the 2005 Chaoulli decision, the Supreme Court of Canada struck down the comparable government health insurance monopoly in Quebec, ruling that a complete ban on private health insurance is not necessary to preserve the public system.  Shortly afterwards, the Canadian Medical Association voted to endorse making private health insurance available as one method of reducing patient suffering and risk.

With the support of the Canadian Constitution Foundation, McCreith has launched a constitutional challenge seeking a similar court ruling that will provide equivalent opportunities to Ontarians.   Canada is the only country in the OECD (Organization for Economic Co-operation and Development) that imposes legal prohibitions on private health insurance for services that are also insured by the government.  Lindsay McCreith thinks it’s time we joined the rest of the developed world.

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