Montreal, September 23 2015 BY E-MAIL : [email protected]

Me Jean-Pierre Ménard, Ad. E.
(514) 253-8044
[email protected]
Montreal, September 23rd 2015
BY E-MAIL : [email protected]
BY FAX : (613) 996-0785
The Honorable Rona Ambrose
Minister of Health of Canada
Room 163, East Bloc
Ottawa (ON) K1A 0A6
Subject:
“Extra-billing fees” being billed to Quebec patients
______________________________________________________
Madam Minister,
The following letter is to solicit your intervention on a problematic that is lived by
thousands of Quebec patients and that seriously affects their rights in regards to their
health, in particular their rights to access medical care. This problem is known as the
extra-billing fees that physicians in Quebec and other provinces bill their patients on top
of their usual remuneration from the public health care insurance.
This situation shakes the very foundation of the Canada Health Act, which you are
responsible to ensure its respect and execution. It imposes an excessive financial burden
on Quebec’s citizens and jeopardizes their right to access health care services.
2
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This situation has been going on for several years, as it is tolerated by the Quebec
Government and the Régie de l’assurance maladie du Québec is incapable of ensuring
the respect of the patients’ rights and it also lacks the will to do so. Right now, the
government of Quebec proposes to intervene in this domain in a direction that goes
completely against the laws in force and the rights and interests of the patients.
Our intervention request is based on the powers given to you by the Canada Health Act1.
You are indeed responsible of ensuring that all Canadians benefit from the rights given to
them by this Act, and you have the power to retain any cash contribution due in respect of
Canada Health Transfer according to the Canada Health Act, if a provincial health care
system does not correspond to the five criteria established by section 7 of this Act : (1)
public administration; (2) comprehensiveness; (3) universality; (4) portability; and (5)
accessibility.
Both the present situation concerning the extra-billing fees in Quebec and the government
of Quebec’s position concerning those fees directly contravene the Accessibility criteria
enumerated at section 7 of the Canada Health Act. Consequently, we solicit your
intervention to:
1. Put an immediate end to the practice of billing extra-billing fees in the privately
owned medical clinics in Quebec;
2. Immediately establish the necessary processes that will subsequently allow you to
retain any due sum as federal cash contributions according to the Canada Health
Act, as long as Quebec’s government shall not purely and simply forbid the billing
of extra-billing fees that are currently imposed to Quebec’s citizens.
We will first present you the legal framework of our request. We will then explain in
details the current situation in Quebec.
Canada Health Act
The Canada Health Act, established by the Canadian Parliament, was the result of an
agreement amongst the Canadian provinces, including Quebec, according to which all
provinces receive a financial contribution from the Canadian Government as long as their
Health Insurance and Hospitalization Insurance systems comply with the conditions of
the Canada Health Act. Quebec is party to this agreement and it has committed itself to
respect its principles and to apply them in its laws.
1
LRC 1985 c. 6.
3
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4
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Article 12(1) of the Canada Health Act is as follows:
“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.”2
In the definitions contained in the Canada Health Act, “extra-billing” is defined as
follows:
“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.3
Article 13 of the Act subjects the instalment of the full contribution to a given province to
the obligation of the latter’s to communicate to the Minister, following the conditions
prescribed by regulation, the information that the Minister can need in order to fully
implement the Act.
Article 18 of the Act is as follows:
“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.”
Article 20 (1) of the Act is as follows:
“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, determines to have been charged through extra-billing by
medical practitioners or dentists in the province in that fiscal year or, where
2
3
Idem, art. 2.
Id., art. 2.
5
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information is not provided in accordance with the regulations, an amount that
the Minister estimates to have been so charged.”
The Extra-billing and User Charges Information Regulations4 foresees what the province
of Quebec must transmit, if the Minister requires:
(a) an estimate of the aggregate amount that, at the time the estimate is made, is
expected to be charged through extra-billing, including an explanation regarding
the method of determination of the estimate; and
(b) a financial statement showing the aggregate amount actually charged through
extra-billing, including an explanation regarding the method of determination of
the aggregate amount.5
The situation we currently bring to your attention this day thus directly violates the
Canada Health Act.
Let’s now examine the legal framework existing in Quebec in order to assure the
application of the federal Act.
Quebec’s Health Insurance Act6
In Quebec, the following articles of the Health Insurance Act specify that it is forbidden
to demand extra-billing fees for services which are insured by the Régie de l’assurancemaladie:
22 al. 4 […]A professional in the field of health subject to the application of an
agreement shall not exact or receive for an insured service any other
remuneration than that provided for by the agreement and to which he is
entitled under the preceding paragraphs; any covenant to the contrary is
absolutely null. However, a pharmacist may exact the difference between the
price of the medication indicated on the list and the amount whose payment is
assumed by the Board. (our annotations)
22 al. 9 […] No person may exact or receive any payment from any insured
person for a service, the supplying of something or costs accessory to an insured
service furnished by a professional subject to the application of an agreement or
by a professional who has withdrawn, except in the cases prescribed or provided
for in an agreement and on the conditions mentioned therein.(our annotations)
4
DORS/86-259 (Gaz.Can II).
Id., art. 3.
6
RLRQ, c. 29.
5
6
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23. No agreement shall provide for additional remuneration for insured services.
Up until now, the Quebec laws are in perfect accordance with the obligations imposed to
the province of Quebec by the Canada Health Act.
The agreements between the Medical Professional Unions and the Quebec
Government
According to the agreement which intervened between the Quebec Government and the
Medical Professional Unions (Fédération des médecins spécialistes du Québec and
Fédération des médecins omnipraticiens du Québec), the remuneration rules are strict and
clear.
Therefore, in the Manuel des médecins omnipraticiens7, the principles applicable to a
physician’s remuneration are at section 7.
In regards to extra-billing fees, the agreement provides that a physician cannot ask a
patient for any payment relatively to the medical act, excepted otherwise specified at the
present rate. A physician cannot obtain compensation from the patient in regards to the
cost of medication and the anesthetic agents used. In addition, a physician can obtain
compensation for the cost of an intrauterine contraceptive device (ICU) if he has
informed the patient of the fees beforehand8.
Therefore, there is no mention in this agreement of a physician being able to charge fees
that are beyond the real costs of these products.
This agreement is in accordance with the Health Insurance Act, which is also in
accordance with the Canada Health Act.
Although the terms of this agreement are quite clear, throughout the years there have
been attempts by physicians to circumvent these laws and agreements in order to enhance
their remuneration. The Collège des médecins du Québec receives more and more
complaints regarding this situation.
7
RÉGIE DE L’ASSURANCE MALADIE DU QUÉBEC, Manuel des médecins omnipraticiens n. 100, [en
ligne], http://www.ramq.gouv.qc.ca/SiteCollectionDocuments/professionnels/manuels/100-facturationomnipraticiens/000_complet_acte_omni.pdf
8
Id., p. A-2, art. 1.1.4.
7
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The Collège des médecins du Québec
Following the numerous complaints received by the Office of the Syndic of the Collège
des médecins, this professional corporation decided at the beginning of this year to
implement regulations clarifying once and for all the physician’s obligations regarding
billing.
The Collège des médecins du Québec introduced, in the Code of Ethics of Physicians9,
new measures in regards to fees charged by certain physicians.
According to the Guide explicatif10 prepared by the Collège at that date, these measures
are justified since the “mercantile aspect” resulting from certain activities has at moments
taken over on the medical act and the professional activity11.
The Collège reiterates the principle according to which a physician must assure himself
that the access priority to medical care be given only in accordance with the medical
necessity criteria. According to the Collège, this is the only criteria that must determine
access to a physician.
This position is exactly in accordance with the principles of the Canada Health Act and
the Health Insurance Act.
The Collège also introduced three modifications to the Code of Ethics, more specifically
to articles 73, 76 and 79.
Article 76 goes as follows in its new version:
“76. A physician must refrain, directly or indirectly, from leasing or selling
apparatus or from selling any medication or product presented as having a
benefit to health, except the apparatus installed or the medications and products
administered by the physician directly.
In addition, a physician may not claim disproportionate amounts as payment for
the medical supplies required by the treatments administered by the physician.”
9
Code de déontologie des médecins, RLRQ, c.M-9, r.17.
COLLÈGE DES MÉDECINS, Modifications au Code de déontologie des médecins. Guide explicatif
janvier 2015, [en ligne] < http://www.cmq.org/publications-pdf/p-6-2015-01-07-fr-modifications-au-codede-deontologie-des-medecins-guide-explicatif.pdf>
11
Id., p. 8.
10
8
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In regards to medical supplies and the administered treatments, the Collège clearly states
its position in its Guide explicatif, explaining that with the new dispositions in the Code
of Ethics, a physician will not be able to claim disproportionate amounts for these
situations, as they have done in the past.
The Collège explains that in regards to these fees, it is recommended that a physician ask
for a fee which corresponds to the real cost of the medical supplies, especially for braces
and medication, which can be added to reasonable fees for conservation and storage12.
The two other articles which were also modified confirm these principles.
The new article 73(1) adds to the existing dispositions:
“73. A physician must refrain:
(1) from seeking or obtaining undue profit from the prescription of apparatus,
examinations, medications or treatments;
(…)”
According to the Collège in its Guide explicatif, it is clearly forbidden for a physician to
receive a financial advantage other than honorary fees when he prescribes medical
devices, medical tests or medication. This prohibition is applicable to the physician
receiving this financial advantage directly or indirectly or by an enterprise which he
exploits13.
The title of Section 2.2 of the Guide explicatif is quite clear:
2.2 “The profit of medical device prescriptions, medical exam prescriptions and
medication prescriptions: a combination which must be avoided” (our translation).
The new article 79 of the Code of Ethics is as follows:
“79. A physician who obtains royalties or is part of an enterprise which is within
his power to control and which manufactures or markets products having a
benefit to health must so inform the persons to whom he prescribes them and the
circles in which he promotes them.”
The new rules proposed by the Collège des médecins fit right in with in the principles of
the Canada Health Act and the Health Insurance Act.
12
13
Id., p. 10.
Id., p. 9.
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The present situation
For several years, in Quebec, private clinics have begun to offer patients insured services,
but by imposing, in addition, a fee to cover one or more of the following:
a) Administrative costs for file openings;
b) The cost of administrative staff;
c) The cost of nursing staff;
d) The cost of drugs;
e) The cost of the equipment;
f) Other expenses.
The general practice is to the effect of not detailing the costs, or to attribute to one or the
other of these elements (eg. cost of drugs) an exorbitant price which in effect seeks to
cover other costs and generate more revenue for the physician.
These clinics have proliferated in Quebec in a context where the public health network
has not developed these services, yet medically necessary, or developed them in a manner
clearly insufficient to provide a clinically useful response time to patients. At least one
hundred thirteen (113) private clinics practice overbilling on June 30th 201514, and the
number is continuously growing, given the complacency of the authorities of the Quebec
health system.
We will highlight several examples you probably know, since Quebec is not the only
offending province and this situation has been persisting for several years.
The most recent example concerns colonoscopies, an examination of the bowel using a
camera. Because of the pain and discomfort of this examination, an anesthetic is
administered to the patient. Clinics charge an average of $450 to $500 for the
examination, for which the gastroenterologist has already been remunerated to cover the
cost of drugs. The cost of the anesthetic itself is minimal15. Approximately 20,000
colonoscopies have been performed in private clinics in Quebec to date.
Physician compensation for this act includes an increase for acts performed outside a
hospital setting, to cover the equipment costs that the physician uses. The patient has no
choice but to go to the said clinic, because the availability of this exam in the public
system imposes a period that may extend over several years, making it unnecessary for
14
GRENIER VERBAUWHEDE, AVOCATS, Recours collectif concernant la surfacturation illégale par
des médecins et par des cliniques, [en ligne] http : www.surfacturation.ca
15
Amélie DAOUST-BOISVERT, “Frais accessoires croissants en clinique privée » Le Devoir, 24
novembre 2011, [en ligne], http : <www.ledevoir.com frais accessoires – 24 novembre 2011>
10
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diagnosing or preventing cancer. By paying the above amounts, the exam is available
within a few weeks or even days. The request for this type of exam is significantly
increasing, that the Quebec Government has set up a screening program for colorectal
cancer, which provides, in certain circumstances, the administration of a colonoscopy.16
The second example concerns medical clinics where they offer vasectomies. In addition
to payments from the government health insurance for this act, a fairly widespread
practice in private clinics is to charge an additional sum of $140 to cover the cost of
Xylocaine. The Collège des médecins du Québec estimates the cost of the drug at one
dollar ($1.00) per treatment. Other clinics include other drugs, consultations and
telephone calls as well as various other charges to justify this amount.17
The majority of the 13,000 vasectomies done in Quebec are performed in these clinics.
However, the compensation agreement between the Régie de l’assurance maladie du
Québec and physicians provides a substantial additional payment when a vasectomy is
performed outside a healthcare facility. Doctors, however, continue to charge these
additional costs, this practice being known by the public authorities.18
A third example relates to the eye drops administered before a treatment for macular
degeneration. These drops, which cost only a few dollars, are billed up to $100 or even
$200 in some clinics. Despite a class action that ended with an out-of-court settlement on
May 1st 201319, the practice still continues today. The Quebec Government had then
agreed to refund more than $6 million to the patients.
There are various other billing practices that are contrary to the law (eg., fees for faster
access to a physician, etc.). For the purpose of this letter, we have chosen to elaborate on
the previous practices.
The Quebec Government’s solution
The above situation has been known for years by the authorities of the Ministry of Health
and Social Services. In 2013, the Quebec National Assembly had already unanimously
adopted the following resolution:
« Que l’Assemblée nationale presse le ministre de la Santé et des Services
sociaux de mettre fin à la pratique des frais accessoires, notamment par une
campagne d’information auprès des médecins et des patients, par une
16
MINISTÈRE DE LA SANTÉ ET DES SERVICES SOCIAUX, Dépistage du cancer colorectal, [en
ligne], http://www.msss.gouv.qc.ca/professionnels/pqdccr/
17
Me Christine KARK, “La surfacturation des frais accessoires” SantéInc., septembre/octobre 2012, [en
ligne] < http://santeinc.com/2012/08/la-facturation-des-frais-accessoires/>
18
Héloïse ARCHAMBAULT, « La vasectomie n’est plus assez payante » TVA Nouvelle, 7 avril 2015, [en
ligne], <www.tvanouvelles/infos/national/archives 2015/04/20150407-04si20/html>
19
Lavoie c. Régie de l’assurance-maladie du Québec, 2013, QCCS 866 (Can II).
11
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application plus rigoureuse de la Loi sur l’assurance maladie et en
interdisant la pratique des forfaits annuels;
Que l’Assemblée nationale mandate le ministre de la Santé et des Services
sociaux de faire en sorte que tous les soins médicalement nécessaires soient
couverts ».20
No action was taken afterwards to stop charging for extra-billing fees.
On June 18th 2015, the Minister of Health and Social Services of Quebec, Dr. Gaétan
Barrette, announced that amendments to the Health Insurance Act will be made, not to
prohibit extra-billing fees, but to regulate them under certain conditions, better described
below21.
The Minister proposes to allow billing of extra-billing fees at their actual cost, permitting
an additional margin not exceeding 15%. A committee established by the Minister will
decide the level of billing, a committee in which no patients will take part in.
This approach of the Minister of Health and Social Services raises two significant
challenges with regard to the Canada Health Act.
First, the Quebec Government already contravenes, through inaction and tolerance of
extra-billing fee practices, to the Canada Health Act. The result of this tolerance and this
inaction is easily observable by the large number of clinics that currently charge these
fees for various medical procedures, and have been for several years.
Secondly, regulating rather than prohibiting extra-billing fees would legalize a practice
which directly contravenes the Canada Health Act.
The impact of the inaction and tolerance of the Quebec Government in respect to extrabilling fees and its intention to legalize it has other considerable impacts on patients'
rights.
It creates unequal access to medical services. Some patients do not have the means to pay
extra-billing fees, even if they are relatively low in some cases. These patients have to
either hold back from obtaining these services, or wait for a long time to get into the
public system, which is clearly the development of a two tier health plan at the expense
of patients who are less fortunate.
20
e
QUÉBEC, ASSEMBLÉE NATIONALE, Journal des débats de l’Assemblée nationale, 1ere sess. 40 légis,
13 juin 2013, « Procès-verbal de l’Assemblée », p. 863 (M. Amir Khadir).
21
Charles PAYETTE, « Frais accessoires, le Ministre Barrette assouplit ses positions » CogecoNouvelles,
17 juin 2015, [en ligne], <http://www.rythmefm.com/mauricie/actualite/nouvelles/frais-accessoires-leministre-barrette-assouplit-722522.html>
12
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This approach introduces a major distortion in access to medical care. No longer are the
urgency and severity of the disease the two main criteria for access to healthcare, but
rather the patient’s ability to pay when he needs care. All federal and provincial
legislation had so far protected the patient in regards to equal access to health care,
regardless of the care needed. This considerable breach in access to health care
challenges the most fundamental principle of the Canada Health Act, that you are the
guardian of, which is the right of access to medical care regardless of patient’s ability to
pay.
On July 3rd 2015, the Quebec Government adopted a decree to suspend the applicability
of Articles 73 (1) and 79 of the Code of Ethics of Physicians, which were to take effect
on July 7th 2015.
The Minister subsequently announced an amendment to Bill 2022, which deals with
access to family medicine, specialty medicine and assisted reproduction. This amendment
aims to frame extra-billing fees and not to ban them. However, Bill 20 does not cover
extra-billing fees and no public debate has been initiated in Quebec on this issue. This
amendment will be adopted without public debate, probably after the hearings of the
Parliamentary Committee on Social Affairs on the other elements of the bill.
The proposed amendment amends Section 22 of the Health Insurance Act, mentioned
above, and reads as follows, according to the draft currently circulating.
« Article 1 (article 24.1) :
Insérer après l’article 24 proposé par l’article 1 du projet de loi, l’article
suivant :
« 24.1 l’article 22 de cette loi est modifié.
1° par le remplacement du neuvième alinéa par les suivants :
« Aucun paiement ne peut être réclamé ou reçu d’une personne assurée,
directement ou indirectement pour des frais engagés aux fins de la
dispensation de services assurés par un professionnel de la santé soumis à
l’application d’une entente ou par un professionnel désengagé.
Constituent notamment de tels frais ceux liés :
1° au fonctionnement d’un cabinet privé;
2°aux services fournitures et équipements requis lors de la dispensation
d’un service assuré;
22
Loi édictant la Loi favorisant l’accès aux services de médecine de famille et de médecine spécialisée et
modifiant diverses dispositions législatives en matière de procréation assistée, projet de loi no. 20, (étude
détaillée-26 mai 2015), 1ere sess., 40e légis. (Qc).
13
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3° aux tests diagnostiques effectués dans le cadre de la dispensation d’un
service assuré.
Il est de plus interdit de rendre, directement ou indirectement l’accès à un
service assuré conditionnel à un paiement par une personne assurée, ou de
procurer à celle-ci un accès privilégié à un tel service moyennant
paiement.
Malgré les interdictions énoncées aux neuvième et dixième alinéas, le
gouvernement peut par règlement, prescrire des cas et des conditions dans
lesquels un paiement est autorisé »; (our annotations)
This amendment, if passed, will effectively allow the Government the discretion to
modify at any time, without public discussion or debate in the National Assembly of
Quebec, extra-billing fees, following pressures from various medical groups in order to
suit their demands. The Government may increase costs, extend the costs, etc. By
opening this door, the Quebec Government may totally obliterate the Canada Health
Act’s
content.
The proposed amendment would allow the Government, through Legislation, to intervene
in order to enable and expand the billing of extra-billing fees, which could now be
extended to the private practice in regards to operating costs, services, supplies and
equipment required when dispensing an insured service, as well as diagnostic tests within
the framework of the provision of an insured service.
Contrary to the Minister of Health and Social Services of Quebec, there is no social
acceptability in regards to extra-billing fees. If Quebecers are paying these fees, it is that
they have no alternative because of the inefficiency of the public system. Minister
Barrette’s project was widely denounced, being supported mainly by the Association des
cliniques privées du Québec and the Medical Professional Unions (FMOQ, FMSQ). The
Collège des médecins noted the willingness of the Quebec Government to regulate rather
than prohibit extra-billing fees. Unfortunately, the Collège has promised to apply Articles
73 (1) and 79 of the Code of Ethics with flexibility (to the detriment of patients). Only the
Quebec Medical Association opposed Minister Barrette’s project, inviting the
Government to seek savings on unnecessary or costly medical practices. No other group
and particularly, no group of patients, has supported the Minister’s approach.
A coalition denounced the logic of profit behind the proposed amendments. The coalition
reiterated September 14th 2015, in a wider grouping, the same information.
14
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Federal interventions to this day
The problematic of the extra-billing fees isn’t a new one. In 1979, Justice Emmett Hall,
that we consider as one of the founding fathers of the present Canada Health Act, had
specifically analysed this question and had produced a report that recommended to
strictly prohibit the extra-billing fees. His recommendations were introduced in the
Canada Health Act in 1984.
Since 1995, your Ministry is preoccupied by the facility fees that privately owned
medical clinics bill to their patients on top of the remuneration the physicians receive
from the public Health Insurance system. One of your predecessors, the Minister Diane
Marleau, had already warned all the Canadian provinces, in 1995, that such fees were
clearly contravening with the Canada Health Act and would be the object of recovery
measures.
Throughout the years, your Government has retained contributions that were due to
provinces who allowed extra-billing fees on several occasions. The annual reports of your
Ministry on the application of the Canada Health Act are eloquent in that regard.
The last annual report on the application of the Canada Health Act contains charts
detailing numerous governmental interventions in many provinces concerning extrabilling fees’ cessation. To this day, all of your interventions were meant to put a stop to
the imposition of such fees on the health care beneficiaries, the provinces knowing well
that they could not do without the federal contribution in health care. However, to this
day, no intervention on your part or on the part of your predecessors has been achieved in
Quebec to stop these practices, even considering how the magnitude and duration of these
infractions have reached an intolerable level for the patients. At best, only a few
exchanges occurred many years ago.
The federal interventions in Quebec
In this context, it is interesting to remember certain interventions achieved by your
ministry with the Quebec Government in the past.
On August 23st 1995, the federal Deputy-Minister of Health, Michèle St-Jean,
investigates Quebec’s position concerning the fees imposed by the privately owned
medical clinics for medically insured services.
On October 6, 1995, the Deputy-Minister of Health in Quebec, Luc Malo, ensures the
federal Deputy-Minister that the legislative framework in force in Quebec formally
15
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forbids the imposition of extra-billing fees in any privately owned medical clinic of
Quebec, for insured services that are required medically.
The federal Government was then preoccupied by the fact that certain privately owned
abortion clinics were billing women that required such act for certain services.
The Deputy-Minister of Quebec reminded the federal Deputy-Minister that pursuant to an
agreement that was made between the Fédération des médecins omnipraticiens du
Québec (General Practitioner Federation of Quebec) and the Quebec Government, there
was no particular disposition that allowed a general practitioner to require any fees from a
woman requiring an abortion. The Deputy-Minister confirmed that it was clear that
extra-billing fees were forbidden and illegal for any therapeutic abortion achieved in a
privately owned clinic.
The federal Deputy-Minister remained worried despite this reassurance from the DeputyMinister of Quebec and insisted again for Quebec to conform itself to the Canada Health
Act.
Despite this mail correspondence, the situation has not changed and the Quebec
Government continued, despite these affirmations, to not forbid and thus allow the
privately owned medical clinics to claim additional sums to women arguing that without
those sums and as they claim, the clinics would have surely closed down. We conclude
that these additional sums were required for the anesthesia, the counseling and the
echography.
The federal government itself did not pursue his measures, so much so that the practice of
extra-billing fees continued in abortion clinics and gradually spread to a greater number
of privately owned clinics for other services.
The class action lawsuits
Confronted with the persisting situation, an organism involved in abortion related topics,
the Association pour l’accès à l’avortement (Association for access to abortion) filed a
class action lawsuit in 2002 against the Quebec Government and claimed compensation
for every woman who, since 1999, had disbursed any sum to have access to abortion.
Indeed, in Quebec, the statute of limitations is three years in this matter.
On August 17th 2006, the Quebec Government was condemned to pay more than 10
million dollars in damages, plus interests and additional indemnity, due to the disrespect
of the provisions of the Health Insurance Act (Quebec’s medical insurance Act) that
16
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forbid extra-billing fees23. A few paragraphs of this judgement deserve to be quoted in
their original language:
« [100] Le recours cherche à faire indemniser les femmes pour les sommes
qu’elles ont dû payer pour obtenir un service assuré; en d’autres termes, le
recours cherche à faire reconnaître que le gouvernement, en toute connaissance
de cause, a permis la mise en place d’un système qui contrevient à ses lois, tout en
le sachant, mais en le permettant pour des raisons financières.
[104] Le Gouvernement du Québec, conservant toujours le pouvoir d’amender
ou d’abroger les lois, ne peut prendre de décisions politiques qui ont comme
conséquences de faire en sorte qu’elles ne soient pas respectées ou qu’elles soient
contournées, que ce soit par l’État ou ses citoyens.
[105] L’État ne peut, pour des raisons politiques ou économiques, prendre des
mesures qui amènent des organismes qu’il a créés et dont il dicte la conduite, de
pouvoir contourner les lois ou à permettre la mise en place de systèmes qui y
contreviennent.
[106] Les citoyens ne peuvent faire indirectement ce que la loi leur interdit; il en
est ainsi pour l’État. Permettre aux cliniques privées d’exiger des frais
supplémentaires, pour des services assurés, et ce en sachant qu’il y va de leur
survie, érige en système ce que la loi interdit.
[107] De plus, l’État sait très bien que les femmes ne paient pas pour recevoir
des conseils, une échographie ou des médicaments. L’État sait très bien que les
femmes paient un supplément pour des services assurés mais se ferme les yeux et
le tolère. Il ne suffit pas de permettre d’utiliser des mots différents qui ne reflètent
pas la réalité pour résoudre un problème.
[109] L’État est donc responsable du dommage causé à autrui en obligeant la
mise en place de structures qui contreviennent à ses lois; l’État a l’obligation de
prendre des décisions politiques qui respectent ses lois.
[110] L’objet de la LAM [NDLR : Loi sur l’assurance maladie) et de ses
règlements est de s’assurer que les citoyens du Québec puissent recevoir des soins
de santé sans en défrayer les coûts lorsque le service est assuré; la loi détermine
ce qui est assuré et ce qui est exclu et l’avortement est un service inclus.
23
Association pour l’accès à l’avortement c. Québec (Procureur général), 2006 QCCS 4694 (CanLII).
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[112] L’État ne peut plaider l’immunité puisqu’il ne peut prendre de décisions
politiques ou administratives qui ne respectent pas les lois qu’il a adoptées;
l’immunité n’a pas pour objet de permettre à l’État de contourner ses propres lois
ou de permettre à des tiers d’agir ainsi.
[131] De plus, le Tribunal conclut que ce n’est pas la LAM qui cause problème
mais plutôt son non-respect, non seulement toléré mais encouragé par le
gouvernement et ce, pour des raisons économiques. »24
The analysis of this judgement appears extremely relevant in several aspects.
On the one hand, the legislative and regulatory provisions haven’t changed since the
middle of the nineties. These are the same provisions that are still in force concerning the
extra-billing fees.
On the other hand, the same practices have been developing in dozens, even hundreds of
medical clinics in Quebec.
It is unacceptable that citizens must solicit the courts in order to make sure that the law is
appropriately respected, when this responsibility belongs to the governmental authorities,
federal as well as provincial. These authorities cannot practice the policy of wilful
blindness and pretend that the current situation is acceptable.
The aforementioned Court judgement clearly establishes the government’s responsibility
when it lets its laws be violated without impunity if this violation causes prejudice to its
citizens.
In this context, even if the provincial government is directly liable, it appears obvious that
the federal government could be subject to the same class action lawsuit if it tolerates a
situation it is well aware of. In the case of abortion, the federal government was aware of
the problem as soon as in 1995, but did not do anything, forcing its citizens to solicit the
courts to force the respect of the law the federal government is responsible for its
implementation. It is intolerable that the federal government lets a province contravene
in such a blatant way to a law that binds all provinces as well as the federal government.
The provincial health Minister Gaétan Barrette estimates at $50 million the cost to bring
back the services provided with an extra cost by the privately owned medical clinics into
the public health care system. In other words, the patients are assuming this amount of
money at the moment. It would thus be the amount to retain if the minister would put
24
Id., par. 151.
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forward his draft regulation or, even if he would not pursue the adoption of this
amendment, simply by tolerating the current extra-billing activities.
This situation is tolerated by the Minister of Health and Social Services of Quebec and
continued in the context where, in 2007, Quebec’s physicians obtained the right to
incorporate themselves, which has resulted in a fiscal advantage of 150 to 200 million
dollars (supported by the taxpayers) and, since 2006, physicians also obtained wage
increases which are well above the average increase in salary of the majority of Quebec’s
citizens (more than 40% increase). It is thus inequitable to let the patients support the
operation costs of medical clinics in order to ensure an even more profitable
remuneration for the physicians-owners of those clinics.
Other class action lawsuits have known success or have been submitted to the court25.
However, this does not seem to suffice to stop the extra-billing fees and imposes a huge
burden on Quebec’s medical patients. As soon as a case is settled, the same practice
continues. This is why this situation commands a more drastic intervention than to let the
tribunals compensate the victims once in a while.
Your government is well aware of this current problem. In a 2012 report, titled “Time for
Transformative Change: A Review of the 2004 Health Accord ” 26 (A transformative
change is required), the Standing Senate Committee on Social Affairs, Science and
Technology reminded us that:
"However, many of the written submissions received by the committee expressed
concern over the federal government’s enforcement of the Canada Health Act. In
particular, written submissions focused on how private for-profit health-care
clinics were extra-billing for services provided under the Canada Health Act, by
charging access fees for those services. For example, they highlighted a study in
the Canadian Journal of Gastroenterology that found that 31.7 per cent of
patients in private clinics were being charged for access to colonoscopy services
covered under the Canada Health Act. They therefore called upon the federal
government to take a more proactive role in enforcing the Canada Health Act,
including extra billing and user fees, as it is the government’s main accountability
25
Lavoie c. Régie de l’assurance-maladie du Québec, 2013 QCCC 866 (CanLII). The Health Minister
Bolduc announced the reimbursement of illegal fees six days after the submission of the class action. A
new class action lawsuit based on the continuation of the same practice has been submitted to the court in
May 2014, first against the RAMQ and two privately owned medical clinics, then gradually against dozens
of other clinics. Léveillé c. RAMQ et al., C.S. Mtl no. 500-06-000695-144.
26
COMITÉ SÉNATORIAL PERMANENT DES AFFAIRES SOCIALES, DES SCIENCES ET DE LA
TECHNOLOGIE, document de travail« Un changement transformateur s’impose : Un examen de l’Accord
sur la santé de 2004 », Mars 2012, [en ligne].
<http://www.parl.gc.ca/content/sen/committee/411/soci/rep/rep07mar12-f.pdf>
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leaver in health care. Furthermore, they recommended the establishment of an
accountability framework that requires provinces and territories to proactively
investigate clinics for compliance with the Act.27
However, the committee also received written submissions outlining instances of
violations of the Canada Health Act by private for-profit health-delivery clinics,
and calling for the federal, provincial and territorial governments to take a more
proactive role investigating these violations and enforcing the principles of the
Act. The committee therefore recommends:
RECOMMENDATION 40
That all governments put measures in place to ensure compliance with the
Canada Health Act and more accountability to Canadians with respect to
implementation of the Act." 28
Keeping in mind this previous recommendation, the following letter is transmitted to you
to appeal to the federal government’s responsibility and proactive role in ensuring the
continuation of our Canadian healthcare system.
Your intervention
Your immediate intervention is required, first of all in order to make your position clearly
known in regards to the application of the Canada Health Act, and more precisely in
regards to the prohibition of the perception of extra-billing fees by physicians.
We therefore ask you to intervene in order to:
1. Immediately end the charging of extra-billing fees in private clinics in Quebec;
2. Immediately start the process permitting to ultimately withhold the sums due as
the federal contribution according to the Canada Health Act, as long as the
Quebec Government will not have purely and simply forbidden the charging of
extra-billing fees which are currently being imposed to the population of Quebec.
We also ask you to intervene and notify without delay the Minister of Health and Social
Services, Dr. Gaétan Barrette, that you will not accept that he merely regulates extrabilling fees as he plans to do so, and that such a project will directly contravene the
Canada Health Act, which justifies the implementation of mechanisms permitting to
withhold the contributions which are due to Quebec. Considering the imminent adoption
of the amendments to the Health Insurance Act, your intervention must concretize itself
27
28
Id., p. 81.
Id., p. 82.
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in the following days. You must not wait after October 19th 2015 to intervene since the
Health Insurance Act will have already been modified and adopted.
Your government shares the same responsibility as the Quebec Government in regards to
extra-billing fees. You should be well aware that your government’s inaction directly
engages its direct responsibility towards the patients of the whole country. We therefore
invite you to act without delay in order to avoid the courts from being called to force you
to assume your responsibilities. You must act to intervene in order to protect the Quebec
patients and, in turn, to protect all Canadian patients against the practice of charging
extra-billing fees, which is in the process of undermining the foundations of the Canadian
health system.
Please accept, Madam Minister, the expression of our highest consideration.
MÉNARD, MARTIN,
(s) Jean-Pierre Ménard
Jean-Pierre Ménard, Ad. E.