 This is the second part of the health law primer called the Legal Framework for the Canadian Healthcare System. So on this part I talk about Medicare, which is established under the Canada Health Act. Medicare is a national program created by the combined operation of federal and provincial legislation. The federal legislation is the Canada Health Act, which authorizes the federal government to make health transfers to each province found by the federal government to be in compliance with the Act. From a legal point of view, the thing to understand about the Act is that it applies to the federal government, not directly to the provinces. It's legislation on health insurance, and health insurance is a provincial jurisdiction. So the Canada Health Act could not be applied or could not be effectively written to be directly applicable to the provinces. Instead, it's legislation which uses financial carrots and the threats of financial penalties to get the provinces to use their jurisdiction over health insurance to create what's called a single payer system. But only for doctor and hospital services. And so the final bullet on this slide says the Act does not and legally cannot apply directly to the provinces. They comply because they want to or need to from a financial point of view or a political perspective, given the popularity of Medicare with Canadians, not because they legally have to. What does the Canada Health Act require of the provinces for them to be eligible for federal health transfers? So in general, it requires each province to be the single payer for people living in that province for their access to medically necessary doctor and hospital services. And that single payer requirement breaks down into a health insurance plan that satisfies the five program criteria of Medicare, and in addition prevents people from being either extra billed for physician services or charged user fees by hospitals. So the point to emphasize here is the Act is targeted towards a health insurance plan. That's the core requirement that the Act requires provinces to have a health insurance plan, a health insurance plan that satisfies the five program criteria and prevents extra building and user charges. So looking first then at the five program criteria. Public administration. This is satisfied where the plan is administered by the provincial government or an agency created by an accountable to that government. Note the Canada Health Act does not require public administration in the delivery of healthcare. Doctor offices are the most significant example of how the delivery of healthcare under Medicare is under private rather than public administration. Universality is satisfied where the plan covers all residents of the province, which essentially means all citizens and other persons who have permanent residency status in Canada under federal immigration law who choose to reside in the province. The main group that's excluded from this is visitors or what the Act calls transients. Comprehensiveness is satisfied where the plan ensures a comprehensive range of doctor and hospital services. I do not think the Act can be fairly interpreted as saying comprehensiveness requires that all medically necessary services be covered or all services that might be said to be medically necessary must be covered. The Act leaves medical necessity in what it means ultimately to be decided in each province. But the cumulative effect of those decisions must result in a plan that ensures a comprehensive range of doctor and hospital services. The line between what is comprehensive and what is not comprehensive or not inclusive enough to be comprehensive is left deliberately fuzzy in the legislation. Accessibility is satisfied where the plan ensures reasonable access to insured services without limitation by financial or non-financial barriers. And given the various barriers to access that have long existed, and you can think of waiting lists for certain diagnostic and surgical procedures as either a manifestation of these barriers or as one of these barriers, it is clear that this requirement has been interpreted by the federal government in a very forgiving fashion when it comes to determining whether or not provinces are in compliance with this program criteria. And finally, portability. Portability is satisfied when the plan continues to cover residents who move to another province for the period of time during which they are establishing residency in that other province. And it's satisfied when a plan assumes responsibility for those who move to the province for which that plan is responsible after any reasonable waiting period that that province may impose for the purpose of ensuring that people who have physically come to the province are actually taking up residency in that province and not simply visiting. In addition, a health insurance plan to be in compliance must satisfy what the Act calls conditions. And these are the prohibition on extra billing and user charges. These require that the plan prevent patients from being directly charged by doctors for a service for which the doctor is compensated by the plan. That would be extra billing. And they require that the plan ensure that patients are not charged by hospitals for utilizing the services of a hospital. That would be a user charge. Administration and enforcement is done by way of financial penalization or threat of penalization. It's not by way of prosecution in the courts. And that goes back to the point covered earlier that the Canada Health Act does not actually legally apply to the provinces. The Act authorizes or sets out two different scenarios for financial penalization. First, the Act gives the federal government a discretion, meaning a choice as to whether or not to financially penalize, meaning withholding some or all of a province's transfer, where a province is determined to be in breach of a program criteria. And the bottom line on this is to understand that the federal government has never exercised this discretion in favor of withholding any provinces' transfer. It has threatened to do that and in many situations that threat has been effective in changing provincial behavior, but withholding has never happened under this provision. One of the reasons that never happens is the province, the federal government has been reasonably forgiving in determining whether or not the program criteria have been satisfied. And then secondly, the Act imposes an obligation on the federal government to proportionally penalize a province to the extent it fails to prevent extra billing and or user charges from being charged to patients, meaning the amount of transfer otherwise paid to the province in which extra billing or user charges is allowed has to be reduced by an amount which is equal to the total amount charged to patients by way of extra billing or user charges. More generally, it's clear that the federal government has achieved general compliance with the Act or a relatively high level of compliance with the Act by virtue of making enough money available or keeping enough money available in the transfers to make it worth the while of provinces to be in compliance and the federal government has also played a role unevenly over time admittedly as being a champion for Medicare as supporting citizens that oppose provincial plans that seem to be at odds for Medicare, at odds to Medicare and the federal government has had some impact in that respect. At the provincial level, all provinces have legislation that conforms and is administered in broad conformity with the Act meaning that the health insurance plan described in the Canada Health Act is in place in every province and territory in the country. Within that context and as mentioned earlier, each province determines what is medically necessary for itself. When it comes to doctor services, that is done largely through the negotiations that take place between ministries of health and medical associations as to what services will be included in the fee tariff that determines the services for which doctors can build the plan for providing those services. So there is variation between the provinces on what medically necessary means and those variations are not unimportant. It's important also to not lose sight of the fact that there is broad consistency across the country in terms of what is included in Medicare. In other words, most provinces, there's considerable overlap in how different provinces define medical necessity. In addition to setting up health insurance plans as required by the Act, most provinces and in fact all provinces accept Newfoundland and Labrador prohibit doctors from charging for any insured services unless they opt out of Medicare for all insured services. This prohibition can be and is interpreted in different jurisdictions as not to apply when the service in question, although it may be a service available within Medicare, is provided in a way or at a time that is beyond the explicit or de facto standard of medical necessity operational in that province. So for example, a diagnostic procedure that is available within Medicare which wouldn't within Medicare be provided to a particular patient. If that is provided to that patient for payment by the patient, that would not be subject to the prohibition against charging for insured services. Similarly, a diagnostic service which is provided more quickly than it would be available in the public system is provided the theory goes before it has become medically necessary as defined by the system. Another example is the provision of a more expensive replacement joint than the public system would provide. Core rationals for Medicare it ensures access for the services covered is primarily based on relative need without regard to relative wealth. It therefore protects the financial security of Canadians giving the cost and unpredictable nature of healthcare expenses. It helps to control society's overall cost of healthcare by greatly reducing the amount of administrative expense that's involved in insurance and that would be incurred if insurance was a private matter. It creates a market for healthcare services with one buyer, the government. That means that buyer has more bargaining power with doctors and hospitals and other providers within the scope of Medicare that might otherwise be the case. And it gives government the ability to control costs by controlling supply. Medicare has worked in that way perhaps at the expense of creating some of those waiting lists that I referenced earlier. More generally, Medicare or a single payer approach is thought to create the opportunity for a more rational approach to planning and delivery of healthcare services and to the use of society's available healthcare resources. Here comes an issue. With some variation, Canadians are similarly insured for doctor and hospital services notwithstanding that healthcare is primarily a provincial area of responsibility. Differences in access to insured services obviously persist due to many other factors other than the ability to pay. And two of those factors are province of residence or community of residence. Thank, for example, the difference between access in rural and in urban communities. Public funding for access for services outside of Medicare is determined beyond the Canada Health Act by each province and therefore there's even more variation across the country as to the extent to which those services are paid for publicly. Such funding as is made available is generally for low income or specific category of people such as senior citizens. And for those other services think pharmaceutical drugs taken outside of hospitals, for example or home care or long term care the ability to pay often determined by availability of employment based insurance is a much more important variable. This presentation is not intended to provide legal advice but educational information and I would like to thank the Dahuazi Health Law Institute for support in preparing this presentation. Thank you very much for listening. I hope it's been helpful.