 This is another in the series of health law primers for medical students at Dalhousie University. This primer is on the topic, the legal framework for the Canadian healthcare system. I'm William Leahy. As you will see from the slide, I teach here at Dalhousie University. This presentation is divided into two parts. In the first part, I deal with jurisdiction over healthcare. And from that you'll learn that the lead jurisdiction in Canada for healthcare is the provinces. And so secondly, I will talk about how the provinces have generally used their jurisdiction over healthcare to create a legislative framework for healthcare at the provincial level. The part two of this presentation will deal with Medicare, which is the national program under which the federal government subsidizes the provincial governments to be the insurers or payers for their residents for most doctors and hospital services. Throughout this presentation, I'll be speaking of the provinces, but everything I have to say is equally applicable to the territories. So part one, jurisdiction over healthcare. Healthcare is not a discrete legislative field under the 1867 Constitution, which divides jurisdiction in Canada, legislative jurisdiction in Canada between the federal and the provincial government. This reflects the fact that healthcare was not regarded as an area of governmental responsibility in the late 19th century. So instead what happens is healthcare is divided by our constitution to the extent that it comes within the more generic legislative responsibilities of the federal and provincial government. And you'll see how that happens in just a moment. The result of this approach is that both provinces and the federal government have jurisdiction over different aspects of healthcare to the extent that healthcare comes within their more generic areas of legislative responsibility. And their respective jurisdictions overlap significantly, and that's something that I think will become apparent to you in a few moments as well. So turning first to the provinces, and it's first of all as a general statement, it's safe to say that healthcare is primarily a provincial jurisdiction under the Canadian Constitution. As a result of that, although we do have a national healthcare system primarily because of Medicare, it's also accurate to say that we really have 14 distinct healthcare systems in Canada, one in each province and territory, and a 14th healthcare system that's operated at the federal level. The provincial jurisdiction over healthcare, which is the more comprehensive jurisdiction, comes from the provincial jurisdiction over a number of different spheres of legislative responsibility, most of which are not limited to healthcare. So the provinces have jurisdiction over health insurance because they have jurisdiction over insurance more generally. The provinces have jurisdiction over the regulation of health professionals, as well as their education, for example, because they have jurisdiction over professions more generally. The Constitution does give the provinces jurisdiction over hospitals, which is as close as the Constitution comes to giving a specific jurisdiction over healthcare to either level of government. And then more generally, because the provinces have jurisdiction over most sectors of the economy, and that means all sectors of the economy that are not specifically assigned to the federal government, the provinces therefore have jurisdiction over healthcare more generally. And then finally, the provinces have an on-the-ground jurisdiction over public health. I put it that way because they have a more immediate direct responsibility for public health than the federal government does. And that includes the jurisdiction to address public health issues that arise in the healthcare system, but it also includes the jurisdiction to use healthcare and the healthcare system to respond to threats to public health that arise outside of the healthcare system. So think of infectious diseases, for example, or the distribution in the economy of contaminated foods. The federal jurisdiction over healthcare, again, is derivative of the federal jurisdiction in other areas. So the 1867 Constitution gives the federal government jurisdiction over Indians. That's the language used in the 1867 Constitution. And therefore the federal government has jurisdiction over First Nations healthcare. The federal government has jurisdiction over armed forces, and therefore it has jurisdiction over healthcare for members of the armed forces and veterans. The federal government has jurisdiction over penitentiaries, and therefore it has jurisdiction over healthcare therein. And the federal government has jurisdiction over immigration and it therefore has jurisdiction to deal with healthcare for refugees and refugee claimants and other people involved in the immigration process more generally. So two points to make here. You might be aware of lots of controversy about the extent to which the federal government exercises this jurisdiction. That doesn't change the fact that the jurisdiction exists. And the second point to emphasize for reasons that are too complex to go into in detail now, the fact that the federal government has jurisdiction over these specific parts of the population does not mean that the provinces do not also have jurisdiction to deal with healthcare with respect to, for example, members of First Nations or veterans of the armed forces. The federal government has a jurisdiction over the criminal law, which includes the authority to decide which goods and services can be allowed into the Canadian marketplace, having regard to their potential to cause harm to those who use those goods and services. And as a result, the federal government has jurisdiction over the regulations of drugs and medical devices. And in particular, jurisdiction to decide which drugs and medical devices can be put on the market in Canada. The federal government also has jurisdiction over other aspects of public health which relate to or can relate to healthcare, such as quarantine hospitals at Canada's borders and points of entry and jurisdiction to deal with national emergencies, emergencies that are beyond the scope of a particular province, and obviously they can be emergencies that have implications for healthcare or that require a response from the healthcare system. And then finally, the federal government has jurisdiction called the spending power to spend federal money on healthcare within the jurisdiction of the provinces. And this is the jurisdiction that the federal government uses to enact and administer the Canada Health Act, which I will be talking about in part two of this presentation. I've mentioned First Nations as a subject of federal legislative jurisdiction. First Nations communities are obviously also an order of government, acting both under the Indian Act and or under their inherent and constitutionally protected right of self-government. As an order of government, First Nations communities have their own jurisdiction over healthcare. And then finally, I just draw your attention to the legal fact that jurisdiction over healthcare like jurisdiction over all other areas of governmental activity is subject to the Charter of Rights and Freedoms, meaning the jurisdiction can only be exercised in ways that are consistent with the rights and freedoms protected by that Charter. So in the next few slides, I overview the kinds of legislation that every province has adopted using the primary responsibility of the provinces for healthcare under the Constitution. In each category of legislation I discuss, there's tremendous variation and a variety across the country in terms of exactly how the legislation is structured. Many provinces will have kinds of legislation for the healthcare system that I'm not discussing in the next couple of slides. The point here is to simply let you know in general what kinds of legislative frameworks are in place in all provinces. And also I would just emphasize, although there is lots of variation in how these various kinds of legislation are structured and administered from province to province, there's also a lot of similarity across the country. So in every province you will find legislation establishing a public health insurance plan or set of plans, including a plan to give all residents free access, meaning access at government expense to insured services, meaning doctor and hospital services deemed in that province to be medically necessary. This is the health insurance plan required by the Canada Health Act. In all provinces, legislation establishes and governs the management, funding, and regulation of healthcare delivery organizations and more broadly of the healthcare delivery system, including hospitals, health authorities, and other provincial care agencies. For example, in Nova Scotia there's something called Cancer Care Nova Scotia. In all provinces you'll find legislation that gives additional programmatic and regulatory authority over healthcare institutions and services and programs to the Minister of Health. So you'll see legislation on hospitals, the regulation of hospitals, nursing homes, home care, and or continuing care, and other healthcare programs. And the point to emphasize here is that I'm talking about statutes that give regulatory authority to the Minister of Health that is distinct from and is in addition to the authority over the healthcare system that the Minister has by virtue of being a primary funder of that system. You'll find legislation in all provinces creating a distinct legislative framework for the provision of mental healthcare and mental health programs more generally. And that's the legislation which authorizes the provision of the care to people living with mental illness on an involuntary basis. And that legislation of course will also prescribe limitations and protections for patients relative to whether or not they can be subjected to involuntary care. All provinces will have legislation, public health legislation that authorizes and governs the provision of healthcare within public health programs as a health promotion, illness disease prevention mandate. And also that legislation will authorize the use of healthcare or the organization of healthcare to respond to public health threats typically under the authority of the chief medical officer of health. And again, I'm thinking of things like infectious disease outbreaks responses to contaminated food or concerns about contaminated food, polluted water, other kinds of public health emergencies or threats. And then finally in all provinces you will find legislation dealing with the regulation of health professionals. I think in every province there's at least 20 regulated health professions. In the larger provinces it's more in the order of 30 regulated health professions. And across the country the approach that is taken in Canada by the legislation that regulates health professions is the delegation of all or most of the regulatory authority for each profession to the regulatory body that is of that profession, that is created by that profession. So in other words Canada's approach to the regulation of health professions is very much an approach of self-regulation or self-governance of health professions. About all of these various different kinds of legislation I want to end by making two points. All of these types of legislative frameworks apply to services provided within Medicare as well as to services provided outside of Medicare. And this is true even of provincial health insurance legislation since it typically deals with the funding provinces choose to dedicate to what Medicare considers to be uninsured services as well as to the services that fall within Medicare. And then finally the second point much of this legislative framework is about or purports to be about the quality of health care. And that is because health care is heavily regulated whether it is publicly or privately funded and delivered because regulation is thought necessary to ensuring the quality of health care that's true in Canada and elsewhere.