Bill 11, the Health Care Protection Act was introduced by the government of Alberta on Mar. 2, 2000. It represents the third attempt by the province to pass legislation that would provide a formal legal framework for privatizing the delivery of certain insured surgical services. The Bill represents a more sophisticated legislative expression of this intent than did Bill 37, its immediate antecedent, by advancing the cause of privatization under the banner of “health care protection.”
One might be forgiven therefore for concluding that Bill 11 was drafted with a view to obscuring its true purpose, which has little if anything to do with preserving the character of Alberta’s public health care system. Rather Bill 11 would transform that system by substantially increasing the scope for private for-profit hospitals to perform surgical services. As the Globe and Mail described it:
Alberta will be the first province to entrench a large-scale private component in its public health care system (1).
The obfuscation of the Bill’s title is also carried to its text. For example, Section 1 of the Bill provides that no person shall operate a private hospital in Alberta. But the very next section introduces the concept of “approved surgical facilities” which, with the exception of certain unspecified major procedures and emergency care, would be licensed to provide the full array of services typically performed in hospitals.
The Concise Oxford Dictionary defines “hospital” as an institution providing medical and surgical treatment and nursing care for ill or injured people. Certainly by this definition and common parlance “approved surgical facilities” would have to be considered hospitals.
Nothing in Bill 11 precludes the licensing of “approved surgical facilities” that are privately owned and operated for profit. Nor does the Bill establish any constraints on foreign investment in or ownership of such facilities.
However Bill 11 does introduces certain limits on the range of services that such facilities would be licensed to deliver. Section 2(2) provides that major surgical services, as defined by bylaws under the Medical Profession Act, only be provided by public hospitals. Section 29(m) defines “private hospital” to mean an acute care facility that
- provides emergency, diagnostic, surgical and medical services, and
- admits patients for medically supervised stays exceeding 12 hours,
but does not include a public hospital.
Section 5 explicitly allows these “non-hospital” surgical facilities to provide enhanced medical goods and services subject to certain consumer protection safeguards. Section 7 establishes three requirements for licensing such surgical facilities:
- accreditation by the College under the Medical Profession Act;
- an agreement with a health authority that the Minister has approved; and,
- designation by the Minister.
Section 10 imposes certain constraints on ownership transfers. Section 11 empowers the Minister to designate surgical facilities to perform specified surgical services, and to impose terms and conditions on those approvals.
Division 2 of the Bill sets out licensing requirements regarding the provision of uninsured in-patient, and day surgical services. Division 3 allows for the withdrawal and termination of designations. Part 3 deals with various general matters and includes: a privative clause to limit judicial oversight of decisions made by the Minister under the Act; and, a clause empowering the Cabinet to make regulations concerning various matters.
Part 4 establishes a Premier’s Advisory Council on Health and Part 5 sets out various definitions relevant to the Bill. Finally Part 6, includes various transitional provisions as well as amendments to the Alberta Health Care Insurance Act, the Hospital Act and the Medical Profession Act. (2)
While the Bill appears to have been crafted to address some of the concerns that greeted its precedents, it is clear that it still represents a significant and unprecedented advance of the rights of private sector providers to participate in the delivery of insured health care services. Should the province succeed in this endeavour, it would, through regional health authorities, institutionalize private health care service delivery in a manner that has until now, eluded its promoters.
Qualifications
Pursuant to your instructions, we have not considered the implications of Alberta’s proposals against the obligations set out in the General Agreement on Trade in Services (the GATS) to the World Trade Organization. Nor have we addressed issues regarding Canadian arrangements under the Agreement on Internal Trade. Finally we note that we offer no opinion about the compliance of Alberta’s plans with the requirements of the Canada Health Act.
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