Canada: How an Ottawa hospital dictates Murphy's health policy

Harold Schiffman hfsclpp at
Tue May 13 14:32:19 UTC 2008

How an Ottawa hospital dictates Murphy's health policy
Published Monday May 12th, 2008

RHAs Minister feared legal battle like the one that enveloped Monfort
hospital. But was he right?

The legal merits of Health Minister Mike Murphy's decision to slash
the province's health authorities are open to debate.

 David smith

Carissima Mathen, a professor of law at the University of New
Brunswick, applauds the government's caution in creating a pair of
regional health districts, to ensure Acadian rights are preserved, but
she says there is no guarantee of a legal fight or erosion of services
for francophones under one district. 'I think it's perhaps a slight
exaggeration to turn a potential risk … into a full-fledged Charter
violation. It's certainly not 100 per cent.' Constitutional experts
differ on whether Murphy rightly settled on two health authorities, or
whether he should have kept going and created just a single district.
Yet there is agreement that Murphy's decision must be measured by a
significant Ontario court case, one that was said, at the time, to
have "incredible national implications."

Back in 2001, the Ontario Court of Appeal ruled that as minorities,
francophones in Ontario have unwritten constitutional rights that
protect institutions that are crucial to their survival. Using that
principle the court quashed an Ontario government plan to downsize
Ottawa's Montfort Hospital. The court said closing or downsizing the
hospital, a key institution for francophones, would jeopardize their
identity. Experts predicted the Montfort decision would reverberate
around the country and become the standard for minority rights.
As one constitutional law professor said at the time: "This decision
has incredible national implications"¦ This case will be used as the
standard throughout Canada."

Not surprisingly, the Montfort ruling is at the centre of the complex
legal web behind Murphy's reform, which as of September will create
just two health authorities, down from eight. Health authority A will
be located in Bathurst, while authority B will be run out of
Miramichi. John McEvoy, a University of New Brunswick law professor,
says Murphy's move to two authorities - as opposed to just one - is
consistent with the government's legal obligations and may have
prevented a constitutional challenge. "If there was only one health
authority that (would) invite a Charter (challenge)," said the
constitutional specialist. "You're not promoting the equality of the
two linguistic communities if you collapse what have been French
language and English language-administered health regions"¦ into one."

One of McEvoy's colleagues, however, says the argument supporting a
constitutional challenge may be "over-reaching" and "slightly
ambitious." "You would need more than speculation to make an equality
challenge," said Carissima Mathen, also a constitutional expert. While
Mathen applauded the government's caution, she said there is no
guarantee of a legal fight or erosion of services for francophones
under one district. "I think it's perhaps a slight exaggeration to
turn a potential risk "¦ into a full-fledged Charter violation.
"It's certainly not 100 per cent." Murphy has defended his decision to
create a pair of health districts, saying two are required to ensure
Acadian rights are preserved.

"I can only imagine how catastrophic it would be for the Acadian
community if we went to one," he recently told the Telegraph-Journal's
editorial board. "I can't imagine the outcry from the Acadians who
fought for 40 or 50 years for a say in their own health."
Murphy amalgamated the authorities to cut costs and boost cooperation.
A shift to two authorities, he said, was the maximum cut possible.
McEvoy follows Murphy's logic. The Charter of Rights and Freedoms, as
well as provincial legislation, requires the government to preserve
and promote equality of the province's two linguistic communities,
McEvoy said. "But equality does not mean treating people exactly the
same, it means recognizing their differences," he said, noting a
single, bilingual health authority could infringe on that standard for
Acadian residents.

A bilingual district, he said, could still project "subtle pressure"
for francophones to speak English.  Essentially the government must
recognize underlying differences and establish programs that give
equal opportunity to all New Brunswickers, he said. That's where the
Montfort case emerges. In it, francophones successfully argued that
the hospital was an important cultural and educational institution
vital to the province's linguistic minority. A similar argument might
be made for the Dr. Georges-L. Dumont Regional Hospital in Moncton.
"There is a real link between the survival of the community and
health," McEvoy concluded. Mathen, however, is unsure of the local
impact the decision could have.

"Why would the institutions necessarily be at risk if you moved to one
(district)?" she said. "I wouldn't go so far as to say that the
Montfort decision would hamstring the government from making
higher-level, regulatory decisions in the interest of fairness or
efficiency - as long as on the ground services meet"¦ constitutional
interests. "I can see the link, but I think it's a bit tenuous without
more information." For his part, Murphy contends Montfort restricted
his options. "To place what may be a cultural institution into a
bilingual board does, according to that case, diminish the ability to
control your own activities," he said. "(If) we put that all into one
authority, we're unquestionably stripping away those rights,"
continued the Moncton North MLA, noting a possible fight in the
Supreme Court. "(Two authorities are) the safest route to go and the
most courteous to both linguistic groups."

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