COLLEEN M. FLOOD Canada Research Chair in Health Law & Policy FACULTY OF LAW UNIVERSITY OF TORONTO Scientific 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 takes responsibility for the decision, the public 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

Concerns about Transparent Rationing 1. Politicization of rationing decisions. 2. Prioritizing of treatments that are currently receiving significant media attention.

Successful Unsuccessful 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)

Successful Unsuccessful 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.