"Why does such a big issue rest on the shoulders of two citizens?" FP asks after losing private medicine battle
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* Susan Pinker

Jacques Chaoulli, a family doctor who petitioned a Quebec court last September to permit privately billed and insured medical care, finally got his answer in late February. "No," wrote Honourable Madam Justice Ginette Piché, the judge who presided over the hearings on creating a two-tiered medical system in Quebec.

Last fall, Chaoulli and George Zeliotis, a hip-replacement patient, were co-plaintiffs in a controversial case that pitted the testimony of a series of frustrated doctors and critically ill patients against federal and provincial lawyers and experts defending medicare.1 In hearings spanning 4 weeks, witnesses repeatedly testified about the problems of a health care system run exclusively with limited public funds. A number of impassioned witnesses argued that a private parallel system operating alongside a universal public program would shorten the waiting periods for surgery and chemotherapy.

Chaoulli's primary contention was that restricted access to timely medical care contravenes the right to life, liberty and security guaranteed by the Canadian Charter of Rights and Freedoms. He opposes a government monopoly on health care and marshalled sources from Karl Marx to Jean-Paul Sartre to argue his point: most Quebecers are now forbidden to spend their savings to save their skins, and this violates their fundamental rights.

But Piché refused to strike down the articles of the Quebec Health Care and Hospital Insurance acts that prohibit doctors from providing private services in public hospitals and prevent Quebec residents from buying their own insurance to pay for private care. Preventing discrimination based on one's ability to pay does not violate the values of the charter, Piché stated in her 156-page judgement. And creating a parallel system would threaten the viability of the publicly funded health program.

At one time, said the judge, many sick Canadians did not seek medical care because they had no money to pay for it. Eliminating the profit motive is the reason why Quebec's health insurance and hospital acts exist, she wrote.

And despite the current problems with accessibility, which she described as short term, Piché defended the laws as guaranteeing "equal and adequate access to health care" for all Quebec residents. She emphasized the need to balance an individual's rights with the needs and values of society as a whole, and questioned Chaoulli's motives in creating a "crusade" against medicare.

This latest "crusade" is just one of a series of cases Chaoulli has brought before the courts on the right to practise medicine privately. Although he opted out of medicare between 1996 and 1998, he has since rejoined the system.

Dr. Edwin Coffey, a past president of the Quebec Medical Association and one of the physicians who testified in favour of allowing private health insurance coverage, said the latest decision was "quite a disappointment. They [Chaoulli and Zeliotis] are going to appeal the decision if they can raise the money."

Chaoulli estimates that it will take $40 000 to $50 000 to mount an appeal, including the cost of transcribing and photocopying testimony from the month-long hearing and its exhibits. So far there are no legal costs because the lawyers advising Chaoulli and Zeliotis have donated their time.

Even though they lost this battle, Chaoulli and Zeliotis still feel they have a chance to win the war. In a press release, they stated that Piché recognized that prohibiting citizens from buying private health insurance constituted a threat to their right to life and security as guaranteed by section 7 of the Charter of Rights and Freedoms. Chaoulli understands this to mean that the right of a patient to contract with a physician is protected, and therefore it follows that this right is reciprocal.

"When the judge said the patient has the economic right to contract with the doctor, then it doesn't make sense that the doctor doesn't have the right to contract with the patient. When you want to dance the tango, you can't dance alone."

Chaoulli's zeal and tenacity in preparing and fighting this case almost single-handedly is the subtext of a drama that may eventually reach the Supreme Court of Canada. Even Piché found his intense commitment overwhelming at times, commenting that "everyone was so tired, except Dr. Chaoulli, who was tireless."

Chaoulli agrees that his focus is unwavering. "If you want to prove something, you have to go far. If I lose the case, it will not only be total bankruptcy for me, but a state monopoly on health care forever. How come such a big issue for the country rests on the shoulders of two citizens?"

## References

1.  1. Pinker S. The Chaoulli case: one-tier medicine goes on trial in Quebec. CMAJ 1999;161(10):1305-6.
    
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