Published in The National Post, June 9, 2004, p. A19.

Monopoly on Trial
by
Pierre Lemieux

Yesterday, before a seven-judge bench of the Supreme Court, the battle between David and Goliath entered its final phase. Dr. Jacques Chaoulli, a Montreal physician, faced more than half a dozen lawyers representing the Attorney-General of Quebec, the Solicitor-General of Canada and interveners such as the attorneysgeneral of Ontario and New Brunswick, a group of senators, and even the poverty industry. Dr. Chaoulli, along with a patient, George Zeliotis, has been fighting this case for 10 years. He appealled to the Supreme Court after losing before the Quebec Superior Court and the Quebec Court of Appeals. He has been representing himself before all these courts, financing his expenses out of his own pocket. The issue is whether the Quebec -­ and thus the Canadian -­ public health system will remain a monopoly. In most provinces, the law explicitly forbids individuals to buy private insurance covering publicly insured services; and everywhere in the country, for all practical purposes, individuals are forbidden to pay for private care outside the public system. Dr. Chaoulli and Mr. Zeliotis want the federal and provincial governments to allow the development of a parallel private system for those who would be willing to pay for services -­ in order to avoid lengthy queues, for example. After having been kept officially secret for long, the public waiting lines are now well-documented. The Fraser Institute has calculated that, in 2003, the average waiting time from referral by a general practitioner to actual treatment was more than four months. Waiting times are high even for critical diseases: The shortest median wait is 6.1 weeks for oncology treatment, excluding radiation, which takes longer. Extreme cases include more than a year median wait for neurosurgery in New Brunswick. The median wait for an MRI is three months. Since 1993, waiting times have increased by 90%. In court, the monopoly’s defenders claimed again that a parallel private system would threaten the viability of the public system. Dr. Chaoulli argued that this is not true: Apart from the United States, all OECD countries except Canada have both a universal public system and (to different degrees) a parallel private system. Even a supposedly socialist country such as France has a vibrant and diversified private sector. According to Dr. Chaoulli, the real motivation of his opponents is not the viability of the public health care system but a misplaced egalitarian ideology that threatens the individual’s right to the security of his person. We can go farther than Dr. Chaoulli. Decriminalizing private health care (including private insurance) would have two important economic consequences. First, it would give public system customers a standard against which to judge the care they get. Second, it would destroy the actual illusion of equality. It is an illusion because the very rich (such as former Quebec premier Robert Bourassa) can go outside of the country for treatment, and because the well-connected jump the queues. What a parallel system would do is to democratize the services that only the very rich and the nomenklatura now get. The ignorance of economics among the apologists of the public monopoly is abyssal. Robert Monette, a lawyer representing the Attorney-General of Quebec, argued that only a monopoly can “put all of society’s resources at the disposal of health care.” He quoted Roy Romanow on “Canadian values,” presumably represented by the prohibition of private health care. For patients waiting in queues, there has been “no proof of prejudice suffered,” claimed Patrice Claude, another, selfrighteous lawyer for the Attorney-General of Quebec -­ as if one could peep into an individual’s subjective preferences and evaluate for him the costs and benefits of his choices. Obviously some individuals think it is worth paying for better care: otherwise, the state would not have to forbid it. If we exclude sheer economic ignorance, the only reason for opposing the liberalization of health care lies in an egalitarian and totalitarian ideal. “We must aim at a complete substitution of public organization to private organization,” said Parti Québécois Minister Camille Laurin in 1970. A government witness-mouthpiece before the Quebec Court of Appeals in 1999 was Dr. Fernand Turcotte, who claimed that “society” found profits in heath care “disgusting.” Among many good questions he put to government lawyers yesterday, Justice Bastarache rightly reminded Mr. Monette that the issue before the court is not whether to abolish public health insurance, but simply whether the state should prohibit individuals from using private alternatives (while continuing to pay taxes to finance the public system, anyway). And, by the way, federal and Ontario lawyers were not more enlightened than Quebec ones. In a free society, the case should hinge on the Court’s acceptance of the following proposition: Either the public health system satisfies demand in a way that consumers find acceptable, in which case competing private insurance and services would pose no threat; or the public health system does not respond satisfactorily to the consumers’ subjective preferences, in which case forbidding private alternatives is then economically inefficient and morally unjust. The only way to maintain the monopoly is to assume that the state should override individual preferences in matters of their own health, life and death. We can only hope the Supreme Court will not go down this paternalistic and authoritarian route.