 All right, it's time to get things started. I'm Sheila Wildman. I'm Associate Director for Health Law Institute. And it's my pleasure to welcome you to the final seminar in our Health Law and Policy Seminar Series, this academic year. And what better way to top off an extraordinary pair of speakers than with our own. All right, not anymore, but we'll always claim her as our own, no matter how long or far she strays, Colleen Flood. Colleen is a Canada Research Chair in Health Law and Policy. She's a Professor of Law at the University of Toronto and is cross-appointed with the Department of Health Policy Management and Evaluation and the School of Public Policy at the U of T. From 2006 to 2011, she was the Scientific Director of the Institute of Health Services and Policy Research at the Canadian Institute of Health Research. As many of you will know, Colleen's Health Law Scholarship is strongly interdisciplinary, bringing together legal, economic and political analysis to address comparative health care policy, public-private financing of health care systems, health care reform and accountability and governance issues more broadly. She's authored numerous articles, book chapters and reports and is author and editor of eight books, including a refreshing, even effervescent textbook and administrative law, and an area sometimes previously miscast as dry and boring. I'm an Admin Law Teacher too, so thank you Colleen for setting the world straight on Admin Law's upper best. Colleen's extensive scholarship has been central to informing some of Canada's most pressing health policy debates, including the ongoing debates about the future of our public health care system. The importance of Colleen's work to these central political questions reflects her ability to produce scholarship of the highest quality, painstakingly thorough and rigorous in its application of interdisciplinary, international and comparative law methods. It also reflects her uncommon skills in knowledge translation, so taking hard won insights and making them accessible and relevant. These are skills Colleen has drawn upon as a teacher as well, one who has shaped the aspirations and careers of a huge raft of health lawyers, policymakers and academics in and beyond Canada. Of course, it all started right here at Del Pausie at the Health Law Institute. While some might claim that Colleen's brilliant trajectory started in New Zealand, where she was born and began life as a baby lawyer, or perhaps at the University of Toronto where she did her graduate work, we like to remind her of her maritime roots and more specifically her time as Associate Director of the Health Law Institute from 1997 to 1999, her formative years. And ours, it was in 1997 that Colleen launched this seminar series with then HLI Director, Jocelyn Downey as the inaugural lecturer. Today tops off the 17th year of this successful series. So you can see why Colleen Flood is an honorary lifetime member of the Health Law Institute and why we're so delighted to have her with us today. Let that be true. Wow. That almost sounded like a retirement. And that's a sad state of affairs when we're getting to that point in my life, but I'm really so happy to be here. And I want to thank Sheila and the Health Law Institute for organising for this event. And also to Christa O'Connor with the Nova Scotia Health Research Foundation who also helped contribute and all the other donors and benefactors that help the Health Law Institute and the Health Law Seminar Series to go on this year and for the last 17 years. So I'm thrilled to see what a wonderful series it is and has become over the years, and it's just great to see that. So thank you for that and for having me here as your last speaker. So I better do something really amazing, I guess. So I'll try. So the topic of my paper and really this relates to a book that I've been working on that's coming out any day now is Putting Health to Rights, a global comparative study. So most of you in this room are probably very progressive types, I imagine. And when you think about health human rights, you think that you are promoting them or human rights more broadly, that you are promoting them in order to make a difference. You want to improve the lives of people. And with health human rights though, I think we're coming to a point where we have to actually question whether that's the case. And so that's what's animated our endeavor here. So why are we asking this question? First of all, the proliferation of health rights and health human rights, socio-economic rights around the world is really quite extraordinary. Over the last couple of decades. So for example, in a recent study, found that more than 90% of 195 constitutions currently enforced contain at least one socio-economic right. That's a lot of constitutions. And they go on to find that health human rights are in existence in some 68% of constitutions and that they're enforceable in 40%. So sometimes you have a right to health, but it's a bit of a loosey-goosey thing that we will promise to do our best at some point in the future, you know, inaccessible. But there are, in 40% of them, they are enforceable, just accessible, just accessible anyway. But despite all of that, we still continue to see enormous disparities in health and in access to health care around the world and within health care systems. So for example, health spending per capita for the top 5% of the world's population is nearly 4,500 times more of that of the lowest 20%. 2.5 million people die annually from vaccine-preventable diseases and close to 7 million children of the age of five died in 2011 from malnutrition and mostly preventable diseases. And so I think these, you know, they're so familiar, maybe they're just, you're kind of over it. But if we think we're making a difference with health human rights, then why isn't this changing? So that's what set us out on our exploration to try to figure that out. And so what I'm going to do with you is present you some of the work we've been working on over the last four years to explore this question. And really what we're asking is, does the litigation or does health human rights and the litigation there are, is it progressive or is it regressive? Is it actually making a difference for the most vulnerable in the world or to put it colloquially, is it just giving middle class and wealthy people more stuff they don't probably really need? You know, so is it leading the charge of the redistribution of resources in the way that we might hope as human rights lawyers or health human rights lawyers, or is it being used for other purposes? And why and when and how, when we see success, can we replicate it? So we went on a tour, which is always a great thing when you're an academic, right? So in selecting the countries for study what we wanted to do was to include a diverse range of countries from around the world, some which have constitutions where there is an explicit right to health care as part of the constitution, some that have written constitutions where rights to health have been read into those constitutions, some that have not constitutional rights to health care but statutory rights to health care, so in regular legislation, and then some where there are apparently no rights to health care at all. So we wanted to map these different approaches to health human rights and then what the value added that we wanted to bring to this, because a number of people have been starting to look at this question of human rights and the impact of health human rights, was to really ground it in the context of the health care system. That's the value added that I have. What I know about is how health care systems work and their interaction particularly between the public and private aspects thereof. So we wanted to marry up understandings deeper and rich understandings about how health care systems work and the public-private divide with the impact of health human rights and how that is affecting actually on the ground the health care systems and in particular the vision between public and private. So because of course actually figuring out what is really regressive and is really progressive is very difficult. So that was our metric for our measure to sort of provide for progressive and regressivity. So what we did was we looked at bundles of countries in three different ways. So first of all we along the spectrum of public to private. So at one end of the spectrum we have public or tax financed countries and these are countries where the health care systems are largely funded through taxation revenues through which public finance. And they are representative countries here as you see is the UK, New Zealand, Canada and Sweden. Then moving to the middle these are what we call social health insurance or managed competition sorry the competition is not about the slide. These countries are quite complicated for those of us who live over here it's maybe hard to understand how these ones work but these systems are often called public systems because health care is universal. Everybody who lives in these countries has a right to health care but it is not tax financed. Well it's partly tax financed it's mostly funded by contributions from your income and contributions from your employer as a percentage of your income. So it is more or less progressive and then it's usually heavily regulated. And so in Europe we call the insurers the providers their sickness funds right there the sort of public insurer but increasingly as I'll discuss in a minute what we're seeing is also a transition of these from these countries to what we call managed competition so more private operation within the public system. So these are our middle countries if you like on the spectrum from public to private. They tend to although they don't have to have more of a role for co-payments and so forth so they're a little less progressive generally than these ones but not always. And then at the far end of the spectrum we have countries that are mostly middle income countries apart from the United States which is sort of in a category of its own but these are countries that have a public health care system generally but it is so impoverished or small there is an enormous role for the private sector. So we call these mixed public and private systems. So the first thing to note about this is that our sort of our vision at the beginning of drawing the divide between public and private is that these public and private categories are not hard and fast and they're increasingly blurred alright so there. And you see that perhaps from my little discussion of the social health insurance system. They look public in the sense that everybody has health care but these are non-for-profit private entities that actually run the health care system. The sickness funds. And increasingly across a number of countries these are transitioning from not-for-profit to for-profit private insurers albeit regulated. And this is a modality of reform called managed competition. But again you have private for-profit insurers but it's universal and it's regulated everybody gets coverage but there's an enormous role for private insurers. So it's public private. But from a redistributive perspective it's redistributive because it's regulated to in the proper systems alright. But there's always this opportunity for more privatization just because of the fact that you have these large private for-profit actors that are at the very core of your system. So what you have seen for example with Obamacare is a movement from a lack of insurance altogether to this notion of regulated private health insurance. It's progressive but you're using private health insurers to get there alright. Same with Taiwan you know no public scheme no universal scheme a movement to create that regulating private health insurers under a universal scheme. It's public and it's private. So what do we call that? It's a blur really. And it's a little hard to say well on the one hand it's regressive but it also has the potential on the one hand it is progressive you're moving to universal care but on the other hand within the seeds within it are the seeds for a lot of potential regressivity down the track so the yin and the yang alright. So that's one thing that we noticed straight out of the gate that this was going to make life a lot more complicated than we had perhaps first hope and then the other thing to note straight out of the gate is that the prevalence of enforceable rights to health care is the inverse of what you might imagine. So countries with robust public health care systems do not have an enforceable right to health care it is very prevalent in these systems. Basically the more private your system the more likely you are to have an enforceable right to health care. So that's a puzzle which is one of the reasons we get out on this endeavor what the hell alright so doesn't seem to be doing what we would hope but of course that ignores the larger socio-economic and political realities of these systems these countries are mostly middle income countries these are mature welfare states over time their health care systems have developed without the need necessarily for an enforceable right to health care. It has just emerged over time as part of policy so we don't actually have a right to health care in the Canadian context per se at least a progressive right but it is a matter of policy these countries are often seeking to really craft a new and radical redistributive agenda post-apartheid post-revolution post-communism they try to do something different and so the ones with the enforceable right to health care they're looking to make a difference so in a sense we also realise we kind of ask the wrong question unfortunately so that will be another book but what we really needed to know was what would be the alternative so what would be the alternative in Columbia for example or Venezuela in the absence of a constitutional right to health care what would have happened without it would it have been worse isn't making a difference in the system that we have so we needed to know the counterfactual of course that's extremely difficult to do so that's just straight out of the gate some of the things that we've found now I'll just talk to you what happened was that we got together 16 people from around the world who to a greater or lesser extent look and sound like me in that they are people who are legal scholars but also who are really dig health care systems so that they really are imbued in it, they understand the health care system and they're able to explain in a fairly cogent and simple way what is happening in their health care system the structure, the dynamics, the economics and so forth and then have something to say about the impact of health care rights in that system so that actually wasn't that easier a task to get 16 collaborators together from around the world one in Toronto, one in Israel where my colleague, my co-author is from and to workshop papers and this we did over and over and over again trying to develop themes and try to get some resonance across these different countries so I'll just mention five of the themes that we very briefly that we asked our authors to look at so the first one was does litigation undermine a fair distribution of resources litigation of health human rights and as I said frequently health human rights is assumed to be progressive and law is seen as rectifying injustices that result in the more vulnerable in society being allocated an unfair share of resources due to economic inequality or prejudice, discrimination, racism, homophobia but we also realised that health rights litigation that is very much focused on the individual can destabilise public systems committed to solidarity and redistribution and that was what we wanted to find out, is that something that was happening in your jurisdiction so you know if you look at a lot of the litigation that happens in a number of countries it's about relatively middle class people relatively seeking access to new drugs and devices and technologies and expensive cancer drugs and so forth and so on it's infrequently about very vulnerable people getting access to healthcare that they need thinking Canada access on the part of Aboriginal people to the healthcare services that they need have we seen a case no so I think that was an important part of our theme that we asked each of the authors to address to what extent is litigation resulting in a fair distribution of resources as you see it or an unfair distribution of resources as you see it so the concern is that an undue focus on upholding individual rights may camouflage the distributive nature of the decision and encourage disregard for the needs of others and may impede the larger social and political processes through which difficult distributive choices are made that's our worry so the challenge then is to articulate health rights in a way that both advances mutual social dependence our dependence on each other our interaction as part of a collectivity while giving due consideration to the health needs of an individual to balance right so now related to that though a number of us were also concerned about and I think this is you know you frequently see I'll just jump over this one actually a concern that well that may be true so it may be that government is desperately trying hard to shift resources you know and allocate resources from the public and from the wealthy to the poor and you don't want hyper individualized litigation to necessarily upset that balance on the other hand there could be claims that government just isn't putting enough money full stop not enough resources full stop into this endeavour and so that's part of the problem and I think actually courts are generally sort of sympathetic to that and the public more generally are sympathetic to that oh we just need to put more money into it but nonetheless it can be true and I have a lot more sympathy for this claim in systems where there is huge inequalities between rich and poor and some of these middle income countries as they'll discuss briefly in India and South Africa the disparities between rich and poor and who benefits from the private system and who are left in the public system is just amazing you know staggeringly awful so here perhaps there is much more of a sense that the claim should be that governments should be much more active about their redistributive agenda things need to be happening there you know there may be a universal system there may not if there's not a universal system we need to see that and then we need to be thinking about how to get the resources that are clearly maldistributed into the hands of those who most need it so this is also something that people were looking and exploring with in their papers now related to both of these topics is the question of access to justice clearly litigation is often extremely expensive and frequently those who are most disadvantaged in the allocation of health and health care are not represented in case law so what modalities and other arrangements are there in place within a health care system with a health human right that actually allows the most vulnerable to bring their rights and have them enforced right and how is that playing out in the system and generally it is as I said it's not that great now there is some examples however where constitutional courts have really given power to health human rights and other human rights I'm going to discuss this in a minute in the context of Columbia but it doesn't always play out as you might think so just hold that thought for a little bit I'll skip over this I could tell you the story but oh and then the other thing we asked our folks to do was to think about the largest socio-economic context of and political context in particular of a decision and that is that to think past the point of a decision so we go to court we were in a case wahoo party right but then as Jocelyn will tell you it plays out in the political context and it turns out you haven't really won Aldridge is a good example here in Canada translation services for the deaf yet across the country there aren't translation services for the deaf in hospitals and healthcare institutions it's not like they haven't had time it was in 1997 but and then the other hand another case here is Orton services for autistic kids they lost the case in the supreme court of Canada yet the public voice was behind you know the folks who bought this challenge who look a lot like you and I in this room and from coast to coast all provinces have moved well almost all provinces have moved to fund this therapy despite the decision by the supreme court that there was no need to fund it so sometimes you win and you win sometimes you win and you lose sometimes you lose and you win and sometimes you lose and you lose alright so we need to look past the point of the decision further on down the track to see what really happened now we weren't always successful in that because that's actually a huge amount of work to try to really understand what the impact is of a particular decision alright so we asked our authors to also do that as well so those were some of the themes that we asked our authors to explore so let me get to some of the kind of larger informative conclusions that we reached so so what we found was that like previous comparative studies that have gone down this path it's actually very difficult to draw hard and fast conclusions that's for sure but we can say with certainty that health human rights and the litigation thereof can be used for both progressive and regressive ends and much depends on the context of the particular health care system the judicial response to the health human right or the human right how they interpret it and their understandings of how health care systems work which is often not very good so in developed countries what we see is a maturation of public health systems and concerns about growing health care costs you'll be familiar with this mantra in Canada and so this results in tensions over people bringing claims to court around expensive new drugs and therapies and technologies but concerns about stability and sustainability and aging population also seems to empower ever increasing claims for privatization and we are seeing that across the country as well so a health human right in the Canadian context or in one of the other mature welfare states could possibly be used as a shield to these privatization agendas a properly crafted health human right what we have so far as most of you know is an interpretation of section 7 that provides a negative right in terms of health care i.e. government get out the hell out of my way so that I can buy private health insurance or access health care as I see fit and not as you see fit and this there are more cases coming up in British Columbia a particular case in British Columbia but other cases across the country where they are using section 7 in a negative way to try to strike down the various protections that are in place for the public health care system in Canada we are most definitely seeing a health human right being used as a to regressive ends as opposed to progressive ends so the trick would be if we were able to persuade the Supreme Court to interpret section 7 in a more positive way to be a health human right that is not about hyper individualized rights to health care but about protecting these larger norms of equity and solidarity and sharing in a public health care system so that is what we are seeing in wealthy countries in middle income countries what we tend to see more is where they have a constitutional right to health care is more of a hyper individualized claim so individuals coming to court and bringing claims for this drug or this device and an example of where this has played out in particular in a very interesting and perhaps worrisome or not so worrisome way depending on your perspective is in Colombia so Colombia three things have happened first they move towards a managed competition system so they had more of a social health insurance system sort of a nascent one and they believed they are very into the idea of the market trying to corral it for progressive ends so they put in place a managed competition system so recall this is competing private health insurers everybody has insurance everybody is covered it's regulated so private health insurers don't dump you don't treat you like they normally treat you they have to be good guys in this managed competition system that actually allow you to basically bring more litigation because it's almost like a private law contract between the private insurer and you as an individual as a beneficiary there's also a determination of a central core of benefits that each insurer has to provide you and the process of determining that central core of benefits is also ripe for challenge judicial challenge so there are a variety of opportunities in these kinds of systems where you try to bring in more private into the public to bring more litigation but it's maybe not the kind of litigation that you want it's about you haven't done this you haven't given me this drug you haven't given me this device so that's the columbian situation what happened was that in columbia these private health insurers weren't delivering they weren't providing the basic basket of services they were struggling to do so so the constitutional court steps in aggressively says one we read in right to health as part of the general provisions of the constitution it's not explicit but they read it two we're going to empower this constitutional right to health care through what they call a tutella action and a tutella action says basically screw all the you know discovery and standing and all that sort of stuff you get to go to court you get to go to court whenever you want to to bring your health human right claim it's just like little you know town halls and that sort of stuff you can bring your tutella action from 1999 to 2010 there were one million tutella claims in health care 85% of them successful now it's got teeth because not only do you bring your tutella claim and it's cheap and easy and effective so you've solved the access to justice problem right solve the access to justice problem then the constitutional court says and if you've worn black as the bureaucrat don't give me my drug or device you're in contempt of court and you're going to jail we could just put them in there anyway so very strong right fabulous right health human rights guys not so fabulous the columbian system buckles at the knees right because it's costing so much money because what happens is as well the pharmaceutical companies realize this is great we can gain this system we don't want the public formulae to include our drug on the system we want a tutella remedy because then they have to pay the price that we want to charge not some negotiated price between the public insurer and the drug company whatever price we want boom boom boom one million right fascinating so from a health human rights perspective this is nirvana from a health systems equity solidarity perspective this is terrible right because a lot of these people agreeing claims for new drugs new device these are mostly drug devices that middle class want even though the tutella is open for everybody and the barriers are down still the people that mainly bring the claims are more middle class than the poor so this is a sort of salary tree story but then on the other hand there's something you know so powerful about this the constitutional court then wades back in okay well we've got it wrong so they deliver through a recent judgment a bunch of decrees to the government about how they need to basically reform their health care system to get rid of a bunch of the problems that they feel are generating so many tutella actions so this constitutional court is not not reviewing policy they're making policy they're making health care policy they whole participatory forums where they have governments and the people and physicians they kind of all come together and they discuss what the reform should be it's simply amazing from our rather impoverished idea of litigating constitutional rights this is way more fun but we see I think then some of the concerns that we have about it but also some of the potential power okay so here's a I don't know I should show you that before so the danger of health rights then of health rights I treated as unconditional and not limited by resource capacity this can put an unsustainable burden on the public insurers and undermine their ability to act as a wise steward of public resources through negotiating prices or resisting patent extensions and so forth if you can't say no if I'm a public insurer and I can't say no to the physicians or the nurses or the drug companies or the device manufacturers if I can't say no get out of town I am not paying your rubbishy price you cannot run an efficient and effective and equitable health care system you will be bankrupt with a lickety split but on the other hand without a constitutional health right or a very modest approach to constitutional health rights such as a very modest approach as such we see in India and South Africa notwithstanding there are some a couple of breath taking fabulous cases that we all sort of cling on to for example in the South African context you know the reality in South Africa is that apartheid continues in the health care system the public system looks after 90% of the population the private system looks after 10% of the population the private system has 70% of the medical care personnel this figure has got worse over time since the advent of a health human right not better so there's something not enough I mean of course for example the treatment action campaign case millions of babies were likely saved as a result of that decision where Mbeki as an AIDS nihilist would refuse to fund net prevent mother to child transmission and the constitutional court overturned that decision it's very very important decision but it's clearly not enough it is simply not enough so should they go bigger should they do more should they be looking at policy so this is where we get how far should they go so what we think is that where we have so let me just beg where we see courts more comfortable apart from the Colombian situation to intervene in health care is where it is an individual bringing a claim for a particular drug or device or a treatment you know this is the little guy against the government and they feel more emboldened to intervene there when it comes to policy stuff they're much more reluctant so we think it should be pretty much the rounder other way so for individual claims we think that the court should be more cautious than we are currently seeing them being that they should however as we do see in the UK insist on fair processes and fair mechanisms for decision making for the spirit of administrative law that we want to see that there is transparency and openness with how courts make decisions about what is publicly funded and what isn't publicly funded that they take into account relevant factors for example your actual health care needs the efficacy of the treatment the cost of the treatment and that it is in a relative framework so this is what we see the courts doing in England insisting that governments and government agencies actually follow a fair process and they will review on the substance of things where it is completely unreasonable the decision that has been made but it's mostly about insisting on a fair process and we think that is by far the better way to go when it comes to individual claims for treatment however when it comes to policy decisions there we see when we look across all of these jurisdictions that courts are more likely to act as a shield in a sword so Obamacare as an example even if it was by the faintest of margins the Supreme Court did uphold Obamacare at the end of the day which the universal mandate that everybody had to basically buy private health insurance similarly in Taiwan there was a challenge to the universal mandate the requirement that everybody buy private health insurance and be part of a universal system and the court in Taiwan the Supreme Court in Taiwan also found just that should be upheld so where governments do take progressive measures even if it's only just courts will usually uphold it but they're taking retrogressive steps so for an example in Israel they have introduced a huge raft of co-payments at point of service something like 30% which when you think about if you're having a major cardiac event or cancer treatment these are thousands of not hundreds of thousands of dollars for some people at point of service means you have to pay this out of your pocket if you don't have private health insurance so a challenge went up to the Israeli Supreme Court around this but it did not succeed so where it is regressive policy on the part of governments courts are not overturning it we think they should take a closer look and we think they should do that on the basis that not that they necessarily need to make policy as we see in Serbia but that as part of a health human right the very integral part of it is the concepts of accessibility particularly for the most vulnerable and concepts of solidarity and universality that is key part of a health human right and that if properly formulated is what courts should be aspiring to and adjudicating on health human rights so being so nervous about waiting into policy we think is inappropriate if we had a well crafted health human right that would empower them to do this not about individuals kind of getting whatever they want on any particular day not that that isn't important and doesn't require just consideration but it should be about in that case making sure that there are fair processes in a reasonable path for decision making but when it comes to these bigger policy questions that really go to the heart of what I consider and I think people do a health human right accessibility particularly for the most vulnerable universality and solidarity I don't think they should have any qualms I've kind of got there I used to have qualms but less and less so particularly as I look more and more at other jurisdictions apart from our own and middle income countries so I'll just go back then to this so then I think the challenge as I said is how do I translate health rights in a way that both advances mutual social dependence while giving due consideration to the health needs of an individual how to strike that balance I think is the key for us going forward and that is it thank you for questions no but whether you look at the constitutions to see whether you put them on a spectrum of how much the constitution itself is a liberal individual's document as opposed to something that had more communitarian values or a sense of solidarity in the constitution such that when you then put the countries on that spectrum does it make more sense of what's been done or is it useful to think about it? Well I think that could be a useful thing to do, we didn't do that but I suspect we would probably fall along the gradient as we saw it so you know Israel Canada is sort of more liberal kind of leaning countries would tend to be on our left side of our spectrum without positive constitutional rights to health care the countries on the right with more nascent public systems as I said many of them for example in Latin America are in a place where they are grounding new constitutions these are new constitutions and so they are including socio-economic rights on the same level as political and civil rights I didn't talk about why we've seen this rise of socio-economic rights but obviously it is partly the story of scholars and activists and policy folks from middle income countries and developing countries saying great I have my lovely liberal rights so I'm starting to get it's not they need to be on the same par and this has been a force that's been moving and moving and moving towards it and seeing it in these constitutions but maybe it would help and to what end then would that help us better think about how to solve the problem of how we're interpreting the socio-economic market or how we could interpret that health human right it enables you perhaps you are sort of building solidarity into the concept of the health right whereas if it's in the constitution of core value you might not have to make that conceptual move and that might be more powerful because what you're fighting against over the Canadian with its so dominant liberalism its individualism you're countering no I think that's true although of course when I think about constitution reform in Canada you know so what we really want to do is empower and bolden the core to interpret section 7 in the Canadian context oh yeah that's a strategy you can't try to get but in terms of understanding the great understanding we have of what's going on and what works may help us develop different strategies well so the countries that do have a broad raft of economic and social rights so you'll be well familiar with South Africa it includes there's a lot of aspirational stuff it includes the big social determinants of health so not so much a concept a standalone concept of solidarity and to be frank I'm not sure you would need that in every domain but you do need it in health care I don't need solidarity and access to cell phones right or in you know flat screen TVs or even in maybe access to legal education but in health care I think you do and that's not just because of equality and equity although I think those are paramount but also from economic perspective that solidarity and equity are actually very beneficial from an economic perspective as well so I think there are a lot of reasons why but from health human rights perspective it's very clear so yeah but you know what's interesting as well I don't know many of you have looked at any of the Indian cases or the Indian constitution it's very similar to our constitution and they have read into their equivalent of section 7 a right to health they've read it into the right to life and they have a number of cases that have emerged out of their conception of a right to health out of the right to life so I think that's a really they're in a very different context obviously but as I said it's not enough it's the huge gap between the wealthy who have access to some of the best state of the art health care in the world in India in fact many of many North Americans travel there as medical tourists to access that care and the rest can't even get basic primary and preventive care yeah yeah yeah and that is I didn't go into all of the stuff that we tried to do we just tried to deal with too much so that is absolutely true so the free trade agreements are making it in some circumstances more difficult to maintain solidarity and equity objectives we are seeing that in the European Union with cases so that people can cross borders and access health care so if you're in France and you're sick of waiting you know you can go to Italy you can go to the Netherlands etc etc and you bring the bill back home to your insurer and that's part of the free trade modality and that sounds pretty good you know from a lot of perspective that sounds pretty good from a consumer perspective you know I'm sitting in a in Nova Scotia I'll just nip over to Alberta they don't really have much of a weight for hipney and joints so why don't I and just send the bill back to Nova Scotia so get on with it buddies you know in some ways I kind of like it but then on the other hand he puts a lot of pressure on the public system back at home that might be not the right kind of pressure so I think the European Union and the European Court of Justice says they've been ruling on these cases are starting to actually their understanding is improving of the negative impact and you're starting to see a bit more of a recognition that actually we do actually have to be careful that the home jurisdictions can maintain solidarity and equity and of course there's more you know less resourced countries join the European Union that's much more problematic for them as they try to maintain a public system but they've got you know the their individual people in their healthcare system saying well this isn't this is not good I could go to England and have some fancy dancy treatments I will and I'll bring the bill back home to Hungary for example right so I think there's a bit of a more of a recognition now of the movement away so I know for example in the Netherlands you can't go for hospital treatment now that the European Court of Justice is ruled in favour of the Dutch for resisting that absolutely so your larger point is correct though right I've given you too much detail about the European jurisdiction but your larger point is absolutely correct it puts more pressure on countries trying to maintain solidarity and equity it's really important in negotiating free trade agreements obviously that countries that do that make sure that they create or enable themselves to protect their public healthcare systems unfortunately you know ministers of health and those who know about the sort of thing are not often at the negotiating table it's usually the pointy-headed people from industry and trade you know diddly squat about the healthcare system so with the Trans-Pacific Partnership for example one of the big things that I'm originating from New Zealand is is FARMAC the prescription drug insurance plan which aggressively negotiates prices with pharmaceutical companies and the Americans want New Zealanders to give up FARMAC as part of the free trade agreement and they may do if we get enough access for our sheep but again you know it's really got to be worth it because that's a big loss that's going to be a lot of sheep Joanna I was thinking during the presentation is this really a question about the judicialization of health rights rather than a project about health rights per se and if so then it becomes a question about institutions and the capacity of institutions so I think the idea here is that you know courts are reactive to a degree they can't just weigh in on public policy they need a case to be brought before and so the structuring of the case if you the way in which the rights are written and the ideology underlying the constitution is going to dictate the way the case comes forward to them that they can then respond on so I guess this then is a question where I think then the idea of what is the orientation of the constitution against which courts have to act that's their only avenue in so then is the question about trying to move away from constitutional rights to do this kind of work that it's better as you said to see these as NIN principles a number of the cases that were described were not on rights based grounds that may have had some of the progressive effects that you are looking at so what if this is a project about what the institution of a court can do these are the health rights then it seems like maybe it's a different point or even what the courts can do is be not health rights but these are the healthcare systems or health policy which is a totally different question than health rights well I see there I really disagree because health rights that health rights to me will interact with the healthcare system so we see in Columbia the judicialization and determination around healthcare rights has fundamentally changed the healthcare system so you know I think that's the thing is that courts judges may sometimes think they're making a decision they're not making a decision about policy but over time in enough decisions on an individual basis you make a decision about policy so your bigger question about is it a project about institutions or is it a project about healthcare rights it's a project about both I mean we are interested and perhaps it shouldn't be perhaps we should be disaggregating all of this but in this first kind of pass we've tried to do everything so we've looked at how healthcare rights are articulated where they are are they in the constitution are they inferred are they in statute are they not are they just part of general policy we've looked at the institutions themselves in the sense of how a case is brought is it public interest litigation as in India is it the total action in Columbia how are these pro bono how are these things brought to court then how have courts reacted to all of this in their decision making but the as I said with the range the breadth of what we're looking at is enormous so Columbia a million cases New Zealand probably two that are of relevance but one you know you have a right to healthcare and other you don't so you're just sort of trying to find a right somewhere in the ether that doesn't is in constitutionalized so I guess at this point you know I've kind of come out of the end of the sausage making factory and I'm not sure about the shape of my sausage and but I think I have well first of all it's been a fascinating journey my god and it's been my first foray into middle income and developing countries and I think I'm going to stay there for a while it's just it's just fabulous you know and what they're trying to achieve animates me so how can they achieve that and then what can I bring back from that experience to think about the Canadian modality but you know more you know very narrowly I think one of the things I really want to do now is really roll my sleeves up and really start looking hard at the Indian cases and the Indian context and how why have they come to a point with their equivalent it's really word for word of their section of section 7 to infer a positive right to healthcare and we are not having as yet and you know as you know there's a big case coming up around challenging the conservative governments move to de-insure refugees basically refugees from so-called safe countries like Hungary and so forth Mexico will have no rights to healthcare none at all not even emergency care pregnancy care nothing so that constitutional challenge is happening now I suspect they might be able to dispose of it on a section 15 analysis so they may not have to go the distance on a section 7 but at some point we will get those right facts up before the Supreme Court on a section 7 and so that would be the moment to really say hey how about how about doing what we did what has been done in the Indian Supreme Court so I think so what we did do was a combination of things but we could certainly disaggregate them for further and better study undoubtedly yep Diane the Supreme Court understood the literally squat about the international comparisons did you just look at the extent to which courts were looking at international comparisons or the extent to which they were certainly looking at today? No we didn't particularly get into that granularity because well Canada is a bit of an outlier in the sense of using a constitutional right to health for this specifically regressive ends to actually undo laws and policies that are protecting the public healthcare system but no well I don't think no we didn't but it's a good point so I was just thinking that's not actually totally true because there are other cases so Israelis allowing well not overturning the decision to put in place all these co-payments and stuff like that which is clearly regressive and probably international evidence could have been bought to bear on that as well the extent to which other systems allow co-payments so no we did it and I'm not well I'm hoping though that this time round that they will take a better account of the international evidence around how different jurisdictions regulate the public-private divide so a lot of affidavits have been filed in the Brian Day case this is the case that's happening in British Columbia that's the equivalent of Shayoli and Brian Day is challenging all of the laws that protect the public healthcare system such as the law that bans private health insurance the law that bans extra billing where a physician gets the money from the government and then charges you whatever he or she wishes on top of it and the law that says that physicians either have to work for the public system or opt out and work for the private sector but they can't have both so Brian Day who owns a private clinic out in BC is challenging all of those laws so it's actually quite a complicated comparative endeavor as well because in the Shayoli decision it was just the one law banning private health insurance in this case it's all of these different laws about five of them and so there are basically five buckets of comparative work that need to be done to justify each and every one of them and the tricky thing is is that we don't usually do a randomized control trial with a healthcare system we're going to make you have a co-payment and you not, that generally doesn't work so it's actually really difficult to bring very strong scientific evidence to bear on this it's mostly sort of observational you know it's not generally seen as particularly strong evidence none the less there is evidence but it's not generally viewed as very strong and of course the burden of proof once we get to, you know if they prove a prima facie breach of section seven then the burden of proof is on the government and so the government is going to have to show that notwithstanding the infringement of your section seven you're in right, you're right to buy private healthcare in a timely way it is justifiable so they have an uphill battle Sheila one of the things that I heard you pulling out this wide ranging complex study that you've been involved with was it kind of something like a pulling back to the process substance distinction? Oh yes I'm sorry I didn't answer that probably I guess it's bringing you back to it I don't know if you'd say faith or you know I suppose I'm putting the if and if a basis in process so of course historically human rights lawyers or progressive types have been pre-frustrated with environmental law in part because of its emphasis on processes idea that what judges do is sort of supervise the boundaries of the more political or policy based decisions that folks with the discretion make those decisions make it's kind of a referee in the outer limits of things without getting much you know much of a hook into the substantive human rights issues that may be alive in administrative context so it now coming through all of this you're coming back to especially out of the Colombian example that you gave us coming back to processes maybe having more potential than we might see so I'd just like to hear more about that whether in relation to actually Colombia specifically or other protests as well so the administrative part of this or the administrative law part of this I think I've got to a place where I think we need a constitutional right a positive constitutional right to healthcare but that it should be in a sense a backstop so that administrative law should really do most of the work but then you know in the case where you've got an Mbeki who's an AIDS denialist or a Harper who's trying to cut off refugees basically you need and I just put them in the same category just to make sure you understand where I stand on this that you need a constitutional right to healthcare to counter some of this very egregious sort of activity but for the day decision making part of the problem in the healthcare systems as I see them is there is a lack of accountability for decision making right who makes who do you who do you you know where do you go to and who do you go to if some for some reason you're not getting timely treatment who do you complain to whose fault is it where do I go how do I know if a decision has been made fairly you know should I just be a patient patient or should I be really railing at the gates and I think that administrative law well you know a version of administrative law has a big role to play particularly now in our Canadian healthcare system but in other systems as well to try to grow those sorts of structures that need to be in place so that there is fair and transparent and open decision making I think that's the best that we can do because when we try to think about well what should be the content the specific content of a health human right should you have that expensive cancer drug should you have this PET scan you know this MRI this this or that I mean basically we're not basically but where we have endeavored to try to actually articulate a list it is it never works I mean we may be able to come up with a very basic list of you know absolutely critical services that everybody should have across time and space but it has to be sort of a floating thing because what is a health human right in Canada is going to be different from what it is in Nigeria right I should as a Canadian citizen a health human right may mean that I actually have access to some fairly expensive end of life procedure or cancer drugs it will not in Nigeria so what I need then is a reasonable process I need to make sure that the institutions as Joan is talking about the process is a fair and that things can evolve over time and space right what is fair today will not be fair tomorrow necessarily depending on the resources and the context and so forth so I think that even though it is no perfect solution absolutely it's the best legal solution we have plus it's administrative law no other questions last for me one more oh one more one more question I I I I I I I don't think so it all depends I mean a right to health a right to healthcare in and of itself is just a form what really matters is what is in it how do you populate it and what goes in it so yes I think you know to the extent if you get something in Alberta and you're not getting it in Nova Scotia that can be problematic and that can cause political pressure from Nova Scotians to say well the Albertans are getting you know their fancy-dancy pet scans every five minutes we want them to so again though you have to have I think a sense of within our resources in our system what is fair and reasonable what what is appropriate to be able to have and that's a kind of conversation that we haven't really being very comfortable with having we'd like to believe that we should be able to have everything and anything and there is this kind of cultural sense that all healthcare is good or drugs are great this is simply not true so we need to have those kinds of conversations we need to have the sort of institutions that are set up that to allow us to have these kinds of conversations to enable us to acknowledge the fact that we only will have a certain number of resources to spend on healthcare or we're rating it from education or social services or increasing taxes take your pick so those are our options and it may be ok that we agree that we should rate from healthcare and social services or we should pay more taxes but we need to have that kind of conversation so I don't think that there is a problem at a constitutional level at a constitutional level a right to health it's what you do with it what the court does with it what we do with it that then will be important ok so before I formally thank Colleen for her lecture today let me first thank all of you for supporting our seminar series today and in the past some of you perhaps were in attendance a few years ago when the series was hatched from Dr. Flood's brain with a little help from her friends special thanks also to our historic and ongoing partners like Chris Connell and the Health Research Foundation special thanks also to Elaine Gibson my predecessor as a associate director who inherited the lecture series from Colleen and who shaped it into the success that it's become most profound thanks to Barbara Carter so sorry she's not Barbara Carter has done all of the behind the scenes work every year since this seminar series started with unflagging dedication so she makes sure the posters are printed and the e-notices are out and the signage is up and everyone's fed and seated and happy or if they're not happy at least they're better informed so thank you Barbara Carter even in your absence now and last but clearly not least thanks to Colleen Flood for her as ever thought provoking wide ranging challenging engaging lecture today