Do Alberta’s health-care reforms violate the Canada Health Act?

The Smith government’s new health-care reform—to allow patients to purchase non-urgent health-care services privately from doctors who also work in the public system—will come into effect in September. The federal government recently opined that this change may violate the federal Canada Health Act (CHA), just as many opponents have argued since the reform was first presented last year. The Smith government however maintains the reforms do not violate the federal law, arguing Ottawa should respect provincial authority over health-care policy.

This debate between the provincial and federal governments leads to two important questions. Do these new reforms actually violate the CHA? And what does it mean if they do?

The latter question is relatively easy to answer. Because health care is constitutionally a provincial responsibility, the Smith government is able to choose its own health policies including policies the federal government opposes. Health-care policies are a provincial matter.

The cost of doing so, however, is a potential reduction or even total withdrawal of federal cash transfers for health care (an estimated $7 billion this year) because provinces must adhere to the federal terms and conditions for provincial health-care policy outlined in the CHA to receive their full health-care cash transfer.

This brings us to the larger question of whether or not the Smith government’s planned reform is “CHA compliant.” The answer to this question is both complex and simple.

The CHA outlines five required program criteria (commonly referred to as principles) of public administration, comprehensiveness, universality, portability and accessibility. It also sets out the non-discretionary dollar-for-dollar reductions in transfers if provinces allow patients to pay any portion of physician and hospital services that have been funded by the government (termed user charges and extra billing).

A careful review of the CHA finds it actually contains few clear restrictions on provincial health policy to receive federal health transfers. Provinces are, reasonably clearly, restricted from allowing patient charges for government-funded physician and hospital services and required to have their plans administered by a public authority under uniform terms and conditions. The CHA is otherwise unclear about what other policies might be permissible, especially under the undefined requirements that “medically necessary” physician and hospital care must be publicly insured and that provinces ensure “reasonable access” to those services.

In other words, the CHA does not clearly say whether or not Albertans might be allowed to look after themselves with their own hard-earned money, or whether or not physicians providing that care must be disallowed from public practice to do so.

But this is where the complex answer to the question becomes simple. Because the federal government maintains sole and final authority for interpretation and discretionary enforcement of the CHA, it’s up to the federal government of the day to determine whether or not the Alberta reforms are CHA compliant and what the penalties might be.

In other words, whether or not the Smith reforms comply with the CHA is up to Ottawa. And until Ottawa makes its final determination, Canadians are left in limbo as to whether their federal health-care tax dollars will or will not be withheld from the Smith government for running afoul of federal health policy preferences.