James Smith Cree Nation in Saskatchewan is set to establish a private medical clinic in Saskatoon offering medical imaging services for patients such as MRI and CT scans. The Indigenous community said they expect the clinic to be open in early 2020.
The First Nation signed an agreement with Saskatchewan Polytechnic to provide on-site medical training for students, so there is an added value to this clinic for the Saskatchewan health system.
Private clinics are a cause of controversy in Canada, of course. However, there are important legal arguments for why prohibiting them is problematic from a constitutional standpoint. Also, they represent significant sources of income for First Nation communities. For example, one assessment of an MRI clinic operating in Vancouver in 2002 found the MRI was paid off in just over two years, leaving $700,000 a year above costs. Adjusted for the present, these clinics could generate generous revenue streams for First Nation communities.
Indigenous communities – given their unique jurisdictional status and ability to assert self-government against both levels of government – should insert themselves into the debate by establishing more private clinics and in appropriate cases, private hospitals.
While James Smith Cree Nation is figuring out when they can open their private clinic, a private corporation in British Columbia is challenging in court key aspects of provincial health care legislation. The challenge deals with the provisions against so-called “extra billing,” the practice of prohibiting charges for services covered by the province’s health care system. They also seek the end of the prohibition on providing private insurance that covers services insured under the public plan. Lastly, the plaintiff is challenging the prohibition of doctors from being paid in both public and private systems.
These provisions are being challenged based on the 2005 Chaoulli v. Quebec Supreme Court ruling which ruled prohibitions on private health insurance given long waiting lists were unconstitutional. There were divisions on the court related to the applicability of the Charter, but many are hopeful the court decision can open the health care system to more private insurance or private delivery of some services.
First Nations should establish these clinics and hospitals hoping for legal challenge on this basis.
Lawyers Jeanie Lanine and Kathryn Deo wrote a compelling brief outlining on-reserve health care options and opportunities, arguing that First Nations on reserve were uniquely positioned to make certain claims about health care.
Lanine and Deo wrote that due to chronic health issues facing Indigenous communities, these communities have a strong argument that the publicly funded health care system is failing to provide them with adequate care. They argued, “The implication is that a s. 7 Charter arguments may be made for alternative and privately financed or insured health services for First Nations.”
The compelling argument for First Nation ventures into private medicine is the reality that provincial laws governing health care have no jurisdiction on First Nation lands. Reserves are under federal jurisdiction. However, the fact is that the ability of a First Nation to operate private for-profit health care services on reserves is uncertain. It is new terrain. But, this specifically is why it would be a good environment for Indigenous legal challenge.
The federal government has long contended that private clinics providing services insured under the government plan for a fee is a violation of the federal Canada Health Act.
However, where the issue wades out of legal territory into politics is in enforcement. In theory, Ottawa could penalize the “offending” province by withholding federal health transfers to that province. The federal government has not been overly vigilant in this regard. Provinces generally are also not in the business of shutting these clinics.
With long waiting lists and pressure on provinces to fix them, many become convinced that the provinces are reluctant to stop private clinics because they realize they reduce public waiting lists by taking pressure off the public system.
Enter a First Nation setting up a private clinic on reserve lands or on an urban reserve, there is the added jurisdictional issue as well as the matter of whether and how the federal government would penalize that First Nation. Would it directly punish the First Nation? Would it go after the province involved? Both are very risky political moves.
Given provinces allow these kinds of clinics to exist (while often publicly opposing them), there is much potential for Indigenous communities to establish them without much government action. Perhaps Ottawa fears that taking aggressive action against these clinics will exacerbate waiting times for specific procedures and make the case that much stronger for a legal challenge.
This is the perfect time for First Nations to enter the landscape in a big way.
Joseph Quesnel is a research associate with the Frontier Centre for Public Policy. www.fcpp.org
