Alberta’s Bill 11 breaks federal law
Danielle Smith’s government in Alberta has repeatedly insisted that their two tier health care law, Bill 11, is completely legal and does not violate the Canada Health Act.
In response, the Canadian Health Coalition asked a team of expert lawyers to review Bill 11.
Their findings left no room for doubt. Danielle Smith’s government is wrong. Bill 11 does not comply with the Canada Health Act and breaks federal law.
What is Bill 11?
Bill 11 is the most extensive privatization of payment for medically required physician services since the Canada Health Act was enacted over 40 years ago.
It creates a new category of doctors in Alberta who can provide medically necessary services through either the public system or private payment, on a service-by-service basis. In plain terms, it allows doctors to charge patients out-of-pocket for care that should be covered by the public health care system.
What does Bill 11 look like in practice?
Your doctor tells you that you need a hip replacement. They size you up. Then comes the offer: they can perform the surgery in the public system, but you will wait 9 to 15 months. Or, if you can pay $30,000, they will perform the same surgery at their privately owned clinic within the month.
And the incentive for your surgeon is clear. The more patients they move into the private system, the longer their public waitlist grows. The longer their public waitlist grows, the more patients consider paying privately.
Bill 11 violates the Canada Health Act
The Canada Health Act is the federal law that has governed public health care in Canada since 1984. It exists to make sure that every Canadian can access the health care they need without financial barriers. To ensure that, the federal government ties health care funding to provinces meeting five criteria: public administration, comprehensiveness, universality, portability, and accessibility. It also explicitly prohibits extra-billing and user charges.
Our legal review revealed that Bill 11 violates several of these criteria:
- Comprehensiveness requires that provincial plans cover all medically necessary services. Bill 11 violates this by allowing doctors to sell medically necessary services privately instead of through the public plan, effectively removing them from public coverage.
- Universality requires that 100% of insured persons have access to health services on uniform terms and conditions. Bill 11 violates this by enabling a dual track of access. Those able to pay can purchase faster access to the very same services from the very same doctors, while others must wait in the public queue.
- Accessibility requires that insured persons have reasonable and timely access to care without financial barriers. Bill 11 violates this by authorizing doctors to sell privately paid versions of medically necessary services, making timely access, as a practical matter, available only to those who can afford private fees.
- The extra-billing and user charges provisions prohibit doctors from charging patients any amount for a medically necessary service beyond what the public plan pays. Bill 11 violates this by permitting doctors to charge patients privately for services that are identical to those already covered by the public plan.
The federal government must act
The federal government has both the authority and the obligation to act. The precedent is there.
When a private clinic in British Columbia challenged the province’s restrictions on private billing, the federal government intervened in court to defend public health care. They argued the Canada Health Act was being violated by allowing queue-jumping and private charges for publicly insured services. The courts agreed.
The federal government took a clear position in that case. Prime Minister Mark Carney and Health Minister Marjorie Michel must take the same position now.
Haylee Keyes is the National Director of Development and Community Engagement for the Canadian Health Coalition
