Bakerlaw prepares to challenge 2011 amendments to Out-of-Country OHIP legislation

  • April 12, 2017
  • BakerLaw

As indicated in our blog post here (link), Ontario’s Health Insurance Act and specifically the regulations that govern Out-of-Country claims for OHIP funding were significantly restricted by legislative amendments in 2011.

Bakerlaw has been retained to challenge one of these amendments, which currently requires that all patients seeking funding for the administration of a drug, including the provision of that drug, payment must be recommended by the Executive Officer of the Ontario Drug Benefit Act. Our concern with this requirement is that is removes the decision-making power of the Ministry of Health’s General Manager, who is responsible for all final decisions to approve funding under the Health Insurance Act. What the 2011 amendment means is that in an instance of drug provision and administration, take for example the purchase and administration of a life saving cancer drug, the General Manager cannot approve a decision that the Executive Officer has not approved. This abuse of the Executive Officer’s discretion and ousting of the General Manager’s power cannot stand.

Bakerlaw has been approached by several patients with immediately life threatening illnesses who were required to go out of country to receive non-experimental drug treatment, including both the provision and administration of the drug, because the treatment is not approved by Health Canada but is recommended by Ontario doctors. OHIP refuses to compensate for this drug therapy on the basis that there is no recommendation from the Executive Officer .

We see this as a violation of human rights protected by Ontario’s Human Rights Code, our equality rights and rights to life, liberty, and security of person protected in Canada’s Charter of Rights and Freedoms. This case is reminiscent of the Supreme Court of Canada’s 2005 decision in Chaoulli v. Quebec (Attorney General), where the Court struck down legislation that prohibited private insurance in Quebec.

In Chaoulli the SCC found the legislation infringed a patient’s rights to life, liberty and security of person because the delay in medical treatment could lead to death and physical/psychological stress, and the legislation went further than necessary to protect the public system. An accessible out of country program was a key element in the changes implemented in Quebec to bring itself into Charter compliance.

Ontario’s program is not accessible and places its citizens in life threatening situations. Bakerlaw has been waiting many years for a client willing to take on this Charter/human rights battle with the 2011 amendment. Bakerlaw is honoured to be working on this case and ready for what lies ahead.

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