COLLEEN M. FLOOD Canada Research Chair in Health Law & Policy FACULTY OF LAW UNIVERSITY OF TORONTO...
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Transcript of COLLEEN M. FLOOD Canada Research Chair in Health Law & Policy FACULTY OF LAW UNIVERSITY OF TORONTO...
COLLEEN M. FLOODCanada Research Chair in Health Law &
PolicyFACULTY OF LAW
UNIVERSITY OF TORONTOScientific Director, CIHR Institute for Health Services and Policy Research
SETTING LIMITS ON HEALTHCARE:
Discrimination Challenges In and Out of the Courtroom in Canada and Down-Under
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 takesresponsibility for the decision, thepublic 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
• Listing decisions based on advice of Medical Services Advisory Committee
• May also recommend de-listing, but has never done so
Federal government plays a central role
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”
Australia
A Move Towards Explicit Rationing
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are needed to see this picture.
Concerns about Transparent Rationing
1. Politicization of rationing decisions.
2. Prioritizing of treatments that are currently receiving significant media attention.
SuccessfulSuccessful UnsuccessfulUnsuccessful
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 (total of 31 cases since 1990 – 2 successful cases alleging
discrimination)
SuccessfulSuccessful UnsuccessfulUnsuccessful
Buffett v. Canadian Forces [2006]
Kavanagh v. Canada [2001]
Sparkes v. NFLD [2002]
Waters v. B.C. [2003]
Hogan et al v. ON [2006]
Armstrong v. B.C. [2008]
Benson v. Dept. of Health, SK. [2005]
Discrimination Alleged (Tribunals)
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 decision-making 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.