The public health system in Ontario, as in most provinces, reimburses residents who must seek medical services outside the country in limited circumstances.
In order to qualify, the treatment, or an equivalent, must be generally accepted by the medical profession in Ontario as appropriate, it must be medically necessary, and either not available in the province or a delay in receiving the treatment would result in death or severe tissue damage.
The actual language used to describe whether a treatment is available in Ontario is whether it is “performed in Ontario” – which is not as straightforward as it sounds.
In a number of cases, government lawyers argued that “performed in Ontario” includes situations in which the treatment is available but the patient must pay for it and it is not covered under OHIP. Obviously, such a treatment is not truly available to a person who cannot afford to pay for it.
This exact situation was recently considered by the Health Services Review and Appeal Board – an administrative tribunal to which individuals who have been refused reimbursement can appeal.
In February of this year, the general manager tried to argue that the administration of the drug Vidaza, being available to Ontarians through an application by their physician to the Special Access Program (SAP) of Health Canada, qualified as a treatment that is ‘performed in Ontario’.
However, access to drugs under the SAP is at the personal expense of the patient. This formed the basis of the patient’s argument that treatments that are not insured under OHIP should not be considered to be ‘performed in Ontario’.
The board accepted the patient’s interpretation which would allow patients to seek treatment outside of Canada if it is not performed as an insured service in Ontario. The Board has maintained a consistent position on this issue. In another case, the Board ruled:
“The HIA[Health Insurance Act], in concert with the Canada Health Act, R.S.C. 1985, c. C-6 and the Commitment to the Future of Medicare Act, 2004, S.O. 2004, c. 5, is intended to foster a health care system that promotes equal access to publicly funded medical services for all insured Ontarians. If the Legislature had determined that private availability would preclude public funding, one would expect it to enact specific language excluding services on this basis. It has not. In our view, the General Manager’s interpretation [that ‘performed in Ontario’ includes treatment that can be obtained privately] is inconsistent with the health care system that is contemplated by the HIA.”
However, this creates the incongruous situation in which treatment outside of the country would be reimbursed by OHIP, whereas that treatment may only be available in Canada if one is willing to pay for it without any reimbursement.
Indeed, this is the exact case of the late Mr. Ashmeade, who travelled to Buffalo in order to obtain therapy for a serious blood disorder. However, when a course of treatment turned out to be far more expensive than he could afford, he returned to Ontario and paid for his therapy through the SAP. When his widow tried to get reimbursed by OHIP, the Board indicated that his estate could only be reimbursed for the cost of the treatment undertaken in Buffalo, but not in Ontario. Indeed, if Mr. Ashmeade had found a way to cover his medical expenses in Buffalo, his wife would have been reimbursed for the full costs. This Board itself commented on the unfortunate situation, but indicated that its powers are bound by legislation.