It’s not easy being a lawyer.  You grind through 3 years of law school, 1 year of articles and then if you’re kept on at the law firm, you dive into the shark tank vying for the “good” files (work from partners who share billable hours with their juniors) and dodging the “bad” files (work from lazy partners who bill your time as their own).  Many lawyers respond to the pressure to be a billing machine by going “in-house” with companies, non-profits and the government.

Life as in-house counsel would be perfect, but for one thing—the client.  It doesn’t matter whether you practice law in-house or out-house, you always work for one of three client types:  (1) the wonderful client, intelligent and thoughtful who comes to you early and actually takes your advice, (2) the dense client who can barely tie his shoe laces—if you’re lucky you’ll get the file in time to turn a sow’s ear into a silk purse (well maybe naugahyde) and (3) the horrible client who is just smart enough to be dangerous and who has done something or is about to do something awful and wants your blessing as a CYA just in case it all blows up (as it surely will).

I don’t know the Health Minister, Mr Zwozdesky, well enough to place him in one of these categories, but based on my correspondence with his lawyer (we’ll call her Ms L) I know he’s blessed with good legal counsel.  When the WCPH* met with Mr Zwozdesky a couple of weeks ago he provided us with evasive responses so I wrote to Ms L asking for more information.  Much to my surprise she replied.

Our key concern was this:  would the new Alberta Health Act open the door to greater privatization of healthcare services?  Ms L side-stepped the question.  However she did point out that the Alberta Health Act is “principles-based” legislation.  Its purpose is to provide guidelines for the healthcare system against which it can be measured.

Legislation is either principles-based or rule-based.  Let’s look at the speeding laws as an example.  A rule-based speeding law would be:  “Do not drive over 80 km/h”.   A principles-based speeding law would be:  “Do not drive faster than is reasonably prudent in the circumstances”.  Principles-based laws are more general, more flexible and more sensitive to context, but are also less certain.  Rules-based laws are more specific, directive and certain, but as a result more rigid.

Principles-based laws are a good thing if the principles set out in the legislation are relevant and clearly stated.  The new Alberta Health Act contains 10 principles.  Three touch on the public vs private healthcare issue.  These are (1) a commitment to the principles of the Canada Health Act, (2) access to publicly funded health services based on need, not the ability to pay, and (3) carrying out health decisions, financial stewardship and the allocation and use of resources “in a way that is transparent…and ensure(s) that Alberta’s publicly funded health system is sustained for the future”.

Do these principles protect public healthcare?

The first principle, the commitment to the Canada Health Act, doesn’t get us very far.  The Canada Health Act does not prohibit private health services, private healthcare delivery or private health insurance.  It is simply a funding mechanism that sets out the criteria under which the federal government will transfer funds to the province.  If the province fails to meet that criteria the feds sit on the transfer payment until the federal/provincial squabble is resolved.  The only protection Albertans have against increased privatization is contained in other Alberta statutes (more on this later).  Net result:  the commitment to the principles of the Canada Health Act does nothing to stem the rising tide of privatization.

The second principle requires accessibility to publicly funded health services based on need, not the ability to pay.  Gary Mar’s recent comments suggesting that the wealthy should have greater access to “non-essential” health services and Mr Zwozdesky’s lack of concern about Mr Mar’s position illustrate the PC’s intentions with respect to accessibility.  Publicly funded health services will be available based on need, however if you have the ability to pay, you can access these services more quickly in the private market.  The result—longer wait times in the public healthcare line while the finite pool of doctors, nurses and resources attends to patients in the private healthcare line.

The third principle addresses transparency and the sustainability of the publicly funded health system.  We all know the PC’s record on transparency.  It’s nonexistent.  Furthermore, the  publicly funded health system is already under seige as a result of the PC’s cost cutting and centralization schemes.  This principle—mere words on a page—will do little to shore up sustainability.

Bottom line:  the new principles-based Alberta Health Act does absolutely nothing to protect universal public healthcare.  Quite the opposite.  It is the first step in an ongoing process to create a two-tier healthcare business.  It allows the Health Minister to use his new power to designate “health providers” to include private healthcare providers so they can bill the government for insured services.  The government will proceed with its plan to “align” 4 provincial healthcare statutes** with the new Alberta Health Act.  The new Alberta Health Act contains no language to protect public healthcare.  As a result the protections contained in the 4 provincial healthcare statutes will be stripped out in the “alignment” process and the last bulwarks against a private 2 tier healthcare system will evaporate.

In-house counsel did their job.  Too bad their job was to dismantle the laws that protect public healthcare in Alberta.

*Whitemud Citizens for Public Health, an Edmonton-based citizen’s action group that includes provincial and federal constituencies  

**the Nursing Homes Act, the Health Care Protection Act, the Health Care Insurance Act and the Hospitals Act