The Right to Health Care

International Covenants, the Canadian Charter of Rights and Freedoms, and Human Rights Laws

As we live in a country with a publicly insured health care system, most of us expect to receive services without charge. We have a right to those services, after all, we pay a lot for health care through the tax system! Unfortunately, we may have rights but not be able to enact them.

International Covenants

Given the importance of health care services to general health and well-being, access to health care has been enshrined in the United Nations’ (UN) International Declaration of Human Rights since it was proclaimed in 1948 (UN General Assembly, 1948, Article 25.1). Later UN Conventions and interpretive Comments have further specified this right. Key among these is Article 12 of the International Covenant on Economic, Social, and Cultural Rights (UN General Assembly, 1966, Article 12). The UN Economic and Social Council (2000) has provided interpretive guidelines for that Article. In addition, Article 25 and related articles (e.g., 16, 22, 26, and 27) of the UN Convention on the Rights of Persons with Disabilities spell out in further detail some basic requirements for health-related rights that apply to people with disabilities. While Canada has signed these international agreements, they do not have the same status in Canadian law as laws passed by the national and provincial legislatures.

The Charter

The Canadian Charter of Rights and Freedoms (Canada, 1982) guarantees broad equality rights as well as fundamental freedoms, democratic rights, mobility rights, legal rights, and language rights. All levels of government must take the Charter into account to ensure their laws, policies, and programs are in line with it. Section 15.1 of the Charter states that “Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability.”

Publicly Funded Health Care: The Canada Health Act

The Canada Health Act (CHA) provides for publicly funded health care insurance to support the primary objective of Canadian health care policy, which is “to protect, promote and restore the physical and mental well-being of residents of Canada and to facilitate reasonable access to health services without financial or other barriers” (Canada, 1985: s.3). The CHA aims to ensure that all eligible residents of Canada have reasonable access to insured health services on a prepaid basis, without direct charges at the point of service. To meet its objective, the CHA sets out basic criteria and conditions the provinces must meet in exchange for a full federal cash contribution through the Canada Health Transfer (CHT – see Canada, Department of Finance, 2022). The CHT supplements the funding of provincial healthcare systems. To qualify for the federal contribution the provinces must uphold five key principles in their publicly insured systems: (a) public (non-profit) administration, (b) comprehensiveness, (c) universality, (d) portability, and (e) accessibility. Sections 8 – 12 of the CHA explain what these terms mean. Universality and accessibility mean that all insured persons of the province (S.10) must be able to receive its insured health services on uniform terms and conditions, without charge or other barriers (S.12.1). All residents of a province are to be insured. Exceptions are people in federal penitentiaries or the Canadian Forces, which have their own healthcare service arrangements, and people who have not yet resided in a province for three months and were not previously a resident of another province, e.g., tourists, visitors, transient persons.

Although the federal government provides funding for healthcare services under the CHA and CHT, the administration and provision of healthcare is mainly a provincial/territorial responsibility.

Human Rights Laws

Human rights laws, such as the federal Canadian Human Rights Act, Ontario’s Human Rights Code, and other provincial/territorial human rights acts, provide safeguards against discrimination in jobs, housing, and services. These laws pertain only to the government and entities in the respective jurisdiction. For instance, Ontario’s Code and not the Canadian Human Rights Act has jurisdiction in Ontario, unless some matter in Ontario (e.g., employment discrimination in a federally regulated bank) falls within the scope of the Canadian Human Rights Act.

Ontario’s Human Rights Code prohibits discrimination in access to commonly used services, which would include publicly insured healthcare, on the basis of disability, citizenship, race, place of origin, ethnic origin, colour, ancestry, age, creed, sex/pregnancy, family status, marital status, sexual orientation, gender identity, gender expression, receipt of public assistance (in housing) and record of offences (in employment) (Ontario, 1990).

All human rights acts at the federal and provincial/territorial levels impose a “duty to accommodate”. This means that the needs of people with disabilities (and others covered by the legislation) who are adversely affected by a requirement, rule or standard must be accommodated so people with disabilities have equal opportunities, access and benefits. The duty to accommodate extends up to the point of “undue hardship” for the person or organization providing the accommodation. Accordingly, to anticipate and prevent potential problems, services and facilities should be designed inclusively and must be adapted to accommodate the needs of people with disabilities in ways that promote integration and full participation (Ontario Human Rights Commission, 2016: Sections 8–9).

Disability-Specific Human Rights Legislation: The AODA

The human rights process is driven by individual complaints. As such it is time consuming, costly, and produces results that may address individual complaints but seldom translate to systemic solutions for others experiencing similar difficulties.

Relatively new human rights legislation with a focus on people with disabilities aims to address such shortcomings by more clearly articulating expectations for accessibility and inclusion, which if met could help stem the number of individual complaints. The Accessibility for Ontarians with Disabilities Act (AODA) and its regulations is such a piece of legislation. The regulations for the AODA constitute accessibility standards that cover information and communications, employment, transportation, the design of public spaces, and customer services.

Until recently the accessibility standards covered hospitals and other regulated health facilities and services, but did so in a fragmentary way. The standards did not provide specific guidelines for hospitals, clinics, doctors’ offices, or other health care spaces, and did not cover the built environments of older hospitals and health care facilities (e.g., Kovac, 2019a, 2019b). A new standard is being developed to address such issues. The final recommendations report of the Health Care Standards Development Committee (Ontario, Ministry for Seniors and Accessibility, 2022) outlined many areas that require attention. The Committee’s full report begins with sections on barriers to accessible health care in hospital settings, guiding principles for recommendations, reflections on COVID‑19 experiences, and a statement of the vision and long-term objectives of the health care standard. The report then provides twenty recommendations and some additional considerations based on the COVID-19 pandemic.

Access the Easy Read Health Care Standards Final Report or Health Care Standards Final Recommendations Report.

The recommendations in the full report address the following subjects:

• the need for an accessibility lead/consultant at each hospital
• engagement with persons with disabilities in hospital accessibility planning and design
• procurement of services and equipment, and consideration of the design of public spaces/built environment to ensure accessibility
• access to accessibility equipment
• funding for accessibility and accommodations for hospitals
• documenting and sharing an individual’s accessibility accommodations in hospital
• accessible and inclusive person-centred care philosophy: support for persons with disabilities including accommodations
• effective patient-provider communication in all health care services, and provision of informed consent
• access to third-party supports for people with disabilities
• development of mandatory education for health care providers and other health care workers or related staff
• mandatory core competencies
• implementation of education and training in hospitals
• education and training for regulated health care professionals
• hospital declaration of values
• patient relations and complaints process
• independent accreditation for putting accessibility policies into practice
• compliance enforcement
• enforcement strategy and framework – hospital accessibility standards
• public education and outreach
• access to health services for persons with disabilities during a declared provincial emergency