SETTING LIMITS ON HEALTHCARE:
Discrimination Challenges In and Out of the Courtroom
in Canada and Down-Under
COLLEEN M. FLOOD
Canada Research Chair in Health Law
& Policy
FACULTY OF LAW
UNIVERSITY OF TORONTO
Scientific Director, CIHR Institute for
Health Services and Policy Research
colleen.flood@utoronto.ca
Rationing in Canada, New Zealand and Australia
 How is rationing happening? Transparent vs.. Implicit?
Set out decision-making processes in each country.
 Challenges outside the courts:
Explore informal challenges – individual patient action, political lobbying,
use of the media, and patient action groups
 Challenges in the courts:
How susceptible are rationing decisions to judicial review? Are claims of
discrimination persuasive?
Spectrum of Rationing: Transparent to Implicit
Transparent
Transparent, reasons are provided,
an identified decision-maker takes
responsibility for the decision, the
public is aware of rationing, even
invited to participate.
Implicit
Occurs ‘under the radar’ and
frequently it is not clear whose
responsibility a decision is (decisions
may be portrayed as medical rather
than financial)
For example, waiting lists.
Canada
Hospital and Physician Services
-Public funding for “medically necessary” hospital and
physician services
-Historically, implicit rationing
- Use of transparent rationing more frequently with
respect to drugs and new technologies
New Zealand
A more transparent system of rationing
overall but like Canada the primary site for
transparent or explicit rationing is
prescription drugs and new technologies
 Determines what is publicly covered in NZ
 Has a fixed budget
 Negotiates prices with drug companies
In order to be credible in bargaining must be prepared
to walk away from funding high cost drugs that don’t
deliver sufficient benefit
Australia
Federal government plays a central role
• Listing decisions based on advice of Medical Services
Advisory Committee
• May also recommend de-listing, but has never done
so
Australia
Prescription Drugs
• Pharmaceutical Benefits Scheme - federal insurance
• Pharmaceutical Benefits Advisory Committee: makes listing
recommendations
• First country to require cost-effective evidence as part of
drug-approval process
• Government as single buyer = “monopsony power”
A Move Towards Explicit Rationing
Qu ickT im e™ an d a
de co mp re sso r
a re ne ed ed to see thi s pi ctu re .
Concerns about Transparent Rationing
1. Politicization of rationing
decisions.
2. Prioritizing of treatments that
are currently receiving
significant media attention.
Discrimination Alleged (total of 31 cases since 1990
– 2 successful cases alleging discrimination)
Unsuccessful
Successful
 Eldridge v. British
Columbia [1997]
 Roberts v. Ontario
[1994]
 Cameron v. N.S. [1999]
 Brown v. B.C [1997]
 Auton v. B.C. [2004]
 ON Nursing Home Ass’n v. ON




[1990]
Fernandes v. MB [1992]
Ponteix v. SK [1995]
Lachine General Hospital v.
QC [1996]
C. (Guardian of) v. OHIP
[2009]
Discrimination Alleged (Tribunals)
Successful
Unsuccessful
 Buffett v. Canadian
 Hogan et al v. ON
Forces [2006]
 Kavanagh v. Canada
[2001]
 Sparkes v. NFLD
[2002]
 Waters v. B.C. [2003]
[2006]
 Armstrong v. B.C.
[2008]
 Benson v. Dept. of
Health, SK. [2005]
Why Allegations of Discrimination Fail
 Courts inclined to defer to allocation decisions of government (Stein,
Armstrong)
 Appeals to emotion don’t have the same traction in court as they do in
the media
 Courts demand evidence to counter expert opinion on cost-effectiveness
 Courts acknowledge need for rationing and are deferential to “policy”
making particular by central levels of government
Courts are far more comfortable reviewing administrative decisionmaking and processes than central government decision-making
Walsh & Others v. Pharmac and Anor (2008) HC
“Herceptin Heroines” challenged decision denying funding for 12
weeks. Court ordered re-determination with better consultation.
Hagar, Morrish and Marinaro v. the Minister for Health and Family
Services and the Commonwealth of Australia (1997)
Alleged that limiting osteoporosis drug to post-menopausal women
discriminated against men. Court found Commissioner failed to hear
evidence about decision making process.
Conclusions
 Shifting from implicit to transparent rationing
 Outside the courts: even principled, evidence-based decisions
can be vulnerable to media attention and politicisation
 Courts attuned to discrimination on its face vs..
discrimination in substance
 Courts are much more comfortable with reviewing administrative
bodies for failings relating to procedural fairness or the
reasonableness of decision-making as opposed to “big”
policy choices by central government
….but do need to consider what happens after the
judgement itself….
 Through the courts: clear reasons and transparency
helps legitimize rationing before courts and tribunals
and in turn this MAY help further legitimize the
processes of decision-making in larger society
 – to truly understand this need to look beyond the end
of a decision. Eldridge (discrimination against the
hearing impaired) suggests that a successful court
decision does not necessarily mean a successful policy
outcome. Auton (alleged discrimination against
autistic children) suggests that an unsuccessful court
decision can allow you to mobilize more political
support for a particular issue.