[The right to health care services under Quebec law]

The main goal of the Canada Health Act is to guarantee that Canadian residents have reasonable access to a comprehensive and universal health care plan. However, reduced federal funding for health care and increases in health care costs due to technical and scientific developments have created unprecedented financial pressures on provincial health care systems. The right to health care, once perceived as one of the pillars of Canadian society, may be imperiled. This article will provide a detailed analysis of the nature and scope of the right to health care from mainly a legal, but also from a political, perspective. Based on the premises that the Canada Health Act is basically a financial agreement between the Federal and provincial governments and that it does not enshrine a substantive right on which individuals may claim services, the author explores the nature and scope of this right under Québec legislation. Indeed, the Québec Health and Social Services Act has, since the 1960s, included various provisions that establish a right of access to health care services. This right, however, is fraught with regulatory, organizational and financial limits. The first part of this paper examines relevant regulation from an historical perspective, highlighting the relationships between federal and Québec provincial legislation. In the second part, the author explores exhaustively the principal provisions relevant to the right to health care. This entails the analysis of administrative regulations as well as of the responsibilities of the various provincial, regional, institutional and professional authorities involved. Ultimately, as this study will demonstrate, the availability of health care services depends more on a vague process than on a legal right to health care. This conclusion is further confirmed by the analysis of the adjudication process of patient complaints provided under the Québec Health and Social Services Act and by the limited case law on the right of access to services. Even though judges are generally favorable to patients claims, court interventions remain ad hoc and a posteriori. But if the right of access to health care seems limited, its scope is nonetheless important. The right to health care acts as an obstacle to the current dismantling of health care services and to government withdrawal from this field. It also places limits on abusive, arbitrary and discriminatory decision-making and obliges public authorities to take into closer consideration patients' rights in formulating its health care policy and budgets. This protective role of the right to health care is currently illustrated by the politicians' insistence that the ongoing health care reform is not affecting the quality or quantity of available services.