Charter Rights & Health Care Funding: A Typology of Canadian Health Rights Litigation

49 Pages Posted: 8 Nov 2013

See all articles by Colleen M. Flood

Colleen M. Flood

University of Ottawa - Faculty of Law

Y.Y. Brandon Chen

University of Ottawa, Faculty of Law, Common Law Section

Date Written: 2010

Abstract

Canadian health consumers have increasingly relied on the Charter of Rights and Freedoms to demand certain therapies and reasonably timely access to care. Organizing these cases into a 5-part typology, we examine how a rights-based discourse affects allocation of health care resources. First, successful Charter challenges can, in theory, lead to courts granting and enforcing positive rights to therapies or to timely care. Second, courts may grant a right to certain health services; however, subsequently government fails to deliver on this right. Third, successful litigation may create negative rights, i.e. rights to access care or private health insurance without government interference. Fourth, consumers can fail in their legal pursuit of a right but galvanize public support in the process, ultimately effecting the desired policy changes. Lastly, a failed lawsuit can stifle an entire advocacy campaign for the sought-after therapies. The typology illustrates the need to examine both legal and policy outcomes of health right litigation. This broader analysis reveals that the pursuit of health rights seems to have caused largely a regressive rather than progressive impact on Canadian Medicare.

Keywords: health law, constitutional law

Suggested Citation

Flood, Colleen M. and Chen, Yin-Yuan, Charter Rights & Health Care Funding: A Typology of Canadian Health Rights Litigation (2010). Annals of Health Law, Vol. 19, No. 3, 2010. Available at SSRN: https://ssrn.com/abstract=2351057

Colleen M. Flood

University of Ottawa - Faculty of Law ( email )

57 Louis Pasteur Street
Ottawa, K1N 6N5
Canada
416-697-4594 (Phone)

Yin-Yuan Chen (Contact Author)

University of Ottawa, Faculty of Law, Common Law Section ( email )

57 Louis Pasteur Pvt.
Ottawa, K1N 6N5
Canada

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