A Federal Court judge has ruled against the government’s changes to the Interim Federal Health Program—the program that provides health care coverage to refugee claimants. Immigration Minister Chris Alexander says the government will appeal the decision.
Whatever the fate of that appeal, the merits of the legal arguments here (Justice Mactavish used sections 12 and 15 of the Charter to rule against the government’s changes) or the strength of the judge’s language (“The 2012 modifications to the Interim Federal Health Program potentially jeopardize the health, the safety and indeed the very lives of these innocent and vulnerable children in a manner that shocks the conscience and outrages our standards of decency”), the ruling also seems to raise questions about the design, utility and evidentiary basis of the government’s policy.
We’ve covered this issue at various points in the past—see here, here, here, here, here, here and here for some of the highlights. I’ve only been able to give the full ruling a first skim—it’s 268 pages and I confess I skipped over portions that seemed to deal in larger legal questions—but Justice Mactavish seems to evaluate the redesigned program on several fronts, thus providing a useful policy analysis.
For instance, will the changes to the IFHP deter illegitimate claims by prospective refugees? Here is what Justice Mactavish writes at paragraph 617.
There is, however, no persuasive evidence to show that the changes to the eligibility and coverage provisions of the IFHP have served to deter unmeritorious claims, thereby reducing the cost of the program. While the respondents have provided information regarding the overall reduction in refugee claims following the recent changes to the refugee process, there has been no attempt to identify how much of a reduction in refugee claims, if any, is actually attributable to the cuts to the IFHP, as opposed to the other changes that have been made to the refugee determination process. As a consequence, it cannot be said that the 2012 changes to the IFHP were necessary to achieve a legitimate aim.
For that matter, Justice Mactavish notes, no attempt was made to study to what degree illegitimate claims were being made to procure health care (paragraphs 963 through 978). She also questions the government’s logic on this point (paragraph 826).
Were refugee claimants receiving better benefits than they were due? Here is what Justice Mactavish writes at paragraph 918.
The respondents elaborated on this at the hearing, explaining that under the pre-2012 IFHP, all program beneficiaries received more publicly funded health care insurance benefits than were received by Canadians under their provincial or territorial plans. This included insurance benefits for virtually all their health care needs, including optometry, dental, prescription medication, nursing visits, long term care, rehabilitative care, and ambulatory services – benefits that are not ordinarily available to working Canadians through provincial and territorial health-insurance plans.
As was noted earlier, there is no dispute about the fact that those seeking the protection of Canada are generally economically disadvantaged. Under the pre-2012 IFHP, individuals who were able to satisfy a means test were entitled to a level of health insurance coverage that provided them with health care benefits that were roughly equivalent to those afforded to low-income Canadians through provincial or territorial health insurance plans.
The pre-2012 IFHP thus provided low-income individuals seeking the protection of Canada with a level of health insurance coverage that was comparable to that provided to similarly situated Canadians. There was nothing unfair about this.
Will changes to the IFHP result in the saving of public funds? Justice Mactavish allows that less will be spent on the program, but she notes additional costs may now be downloaded to other governments and organizations.
While I have insufficient evidence before me to make a finding in this regard, I would also note that there is a real question as to whether the cuts to the IFHP will in fact achieve any real cost savings to taxpayers — another stated objective of the changes — or whether the costs of providing medical care to those seeking the protection of Canada are simply being downloaded to the provinces and others.
She notes the touted savings cannot be applied specifically to the changes to the IFHP (paragraphs 998 through 1000) and she also suggests the savings can (and likely are) being achieved through other changes (paragraphs 1014 through 1016).
All of which might recall this piece by Julia Belluz, published in June 2012, which suggested we lacked the evidence necessary to evaluate the changes to the Interim Federal Health Program.
As it pertains to children, Justice Mactavish notes what little choice they might have in coming to Canada and specifies a number of alleged and potential situations.
As a result, a refugee-claimant child with asthma may be able to access emergency room treatment for an acute asthma attack, but could later be left gasping for breath if his impoverished refugee claimant parents could not afford the cost of the child’s asthma medication…
As a consequence, a child screaming in pain because of an ear infection would not be entitled to funding for any medical care whatsoever, because an ear infection is not a condition that poses a risk to public health or safety. While the child’s parent’s might be able to have the child seen by a doctor through a hospital emergency room, no health insurance coverage would be available to assist with the cost of the antibiotics that would be required to treat the infection.
In his affidavit, Dr. Rashid described the case of a young child with a fever and cough who was unable to get a chest X-ray to rule out pneumonia — a potentially life-threatening illness — because the child only had PHPS coverage.
Dr. Caulford described the case of an asthmatic eight-year-old from Africa who began coughing and wheezing more severely because his mother could no longer afford medical care and asthma medications after his IFHP coverage was reduced to the PHPS level following the rejection of the family’s refugee claim: Caulford affidavit at para. 17.
There is also the riddle of Hanif Ayubi, an Afghan in need of medicine, whose refugee claim was denied, but who can’t be sent back to Afghanistan because Canada has suspended deportations to the country.
Whatever the courts decide, there is probably here a good basis for a real debate about what the government has done with the Interim Federal Health Program. That we should hope to limit abuse of the immigration and health care systems seems like a reasonable goal. The question here is how—and particularly whether the changes to the IFHP are a good way to go about doing that.
That we should have this sort of analysis now is surely useful, even if it might be odd that we should have to get it from a judge. If only we had some kind of public forum for the consideration and debate of such stuff. Perhaps if we did, we could delegate a committee to pick up this ruling, independently study it at length and propose a comprehensive response. That at least seems like the sort of thing we might elect people to do.