Examining the Loopholes Allowing for Private Health Care in Canada

Canada’s restrictions on private health care are complex and contain numerous loopholes. As medical practices advance, the delay in updating laws has resulted in more private health care being allowed in Canada than many realize.

For instance, due to a shortage of health workers, nurse practitioners are now able to offer more services than before, without being subject to the private care regulations specifically written for doctors.

With extended wait times and other issues in the public system, many Canadians are taking advantage of these loopholes to access private clinics.

One significant loophole allowing the establishment of this two-tier system is that any patient can receive virtually unlimited private care by seeking treatment in another province.

Restrictions on private practice typically apply to services covered by provincial health insurance. Since out-of-province patients are ineligible for this insurance, they are permitted to receive those services privately.

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“I can operate privately on out-of-province patients,“ B.C. physician Dr. Brian Day told The Epoch Times via email. ”Recently, I treated five Alberta patients who travelled here from Alberta to escape long wait lists. On the same day, a colleague in Alberta treated six B.C. patients travelling the opposite way.”

Other exceptions in the Canada Health Act for federal employees, prisoners, military personnel, individuals receiving workers’ compensation, and others grant them greater access to private care compared to the average Canadian.

She highlighted the ambiguity in a key provision of the CHA, which states that “a province must insure all insured health services.”

“What does it mean to ‘insure all insured health services’?” she questioned. “It’s crucial to note that it does not explicitly forbid GPs [general practitioners] from offering certain procedures privately, right?”

Provinces determine which services are covered by insurance. “The Canada Health Act does not explicitly dictate anything other than mandating that insured services must indeed be insured,” she explained.

Some of the primary services currently being provided by the private sector include diagnostic scans, routine surgeries, virtual care, and various services typically offered by family physicians. The extent to which these services are covered by provincial plans varies across Canada.

According to Ms. Fierlbeck, there is significant activity happening behind the scenes regarding this issue. She mentioned that two federal health ministers have affirmed their intention to release an interpretation letter clarifying that the provisions of the Canada Health Act pertain to diagnostically essential services. “Years later, it still has not materialized,” she added.

“The legal basis for this interpretation is quite uncertain,” she remarked.

Virtual care surged during the pandemic, and while it is covered by some provinces, not all of them provide comprehensive coverage. Also, in instances where it is covered, each patient may only be entitled to limited care under provincial insurance.

Maple is a leading provider of virtual care in Canada. It has agreements with select provinces to bill provincial insurance for appointments, but it also offers patients the option to access immediate care for a fee.

Several services have traditionally been uncovered by the public system, such as ambulances, physiotherapy, and optometry. The eligibility of a service for coverage often hinges on whether a province deems it “medically necessary.”

The provision of private care is not solely determined by the type of medical service offered. It also factors in the provider delivering the service and the patient—such as the patient belonging to one of the exempted groups, including federal employees.

Depends on the Doctor and the Patient

Health Canada distinguishes between “participating,” “non-participating,” and “opted-out” physicians, each category having its own regulations. These categories indicate the extent to which a doctor participates in the public health system.

Ms. Fierlbeck noted that non-participating doctors are not bound by the provisions of the Canada Health Act, as the services they render are not considered “insured services.”

These doctors may offer physiotherapy, cosmetic procedures, and other services not covered by the province. However, they may also perform diagnostic scans and elective surgeries that are central to Canada’s ongoing debate on private-versus-public health care, according to Dr. Day.

Opted-out doctors charge patients directly but adhere to the provincial fee schedule and provide receipts to patients for reimbursement by the province.

However, these classifications are not always clear. Ms. Fierlbeck has observed provinces using various terms like “withdrawn” or “not enrolled,” and the provincial designations do not always align with federal definitions.

“This definitional ambiguity is a key reason why determining compliance with the CHA is so challenging,” she stated.

Regarding a patient’s eligibility for private care, the crux of the matter is determining the extent to which an individual is considered provincially “insured,” Ms. Fierlbeck explained.

Ms. Fierlbeck mentioned that federal employees receive additional benefits beyond their provincial coverage. Similarly, indigenous individuals who are recognized members of a band also receive extra services.

When asked about the rationale for exempting groups like prisoners and individuals receiving workers’ compensation, Dr. Day—who spearheaded an unsuccessful legal challenge against private health restrictions—responded, “There isn’t one.”

In response to the same inquiry, Health Canada spokesperson Anne Génier mentioned that the exempted groups are not categorized as provincially “insured persons” because the federal government provides “equivalent coverage to these groups through separate federal programs.”

Dr. Day, however, noted that this leads to varied access to private care. He personally treated federal employees such as judges, billing them directly for services, which are then reimbursed by the federal government.

Profitability

Allowing private care is not the sole factor in determining its availability in Canada. Profitability is another crucial factor: Is there a sound business rationale for it?

Ms. Fierlbeck stated that demand is increasing due to lengthy wait times in the public system, and the business case for private care is likely becoming stronger. In some instances, provincial “disincentives” render it unprofitable even when private care is technically permitted, she added, citing the example of Quebec.

However, following this ruling, Ms. Fierlbeck explained that the province invested more resources into these surgeries, diminishing the role of the private market.

She also noted a growing demand for medical services, attributed to extended wait times, an increased range of treatments and medications, as well as an aging population, straining the health-care system in Canada.

“Millions of Canadians are not receiving the necessary health care when they require it. Some provinces are addressing gaps in the health system by expanding private service delivery, while others are scaling back,” the CMA stated. “Comprehending the implications of this is crucial.”