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72-513: Having suffered in the past from numerous health problems including a hip replacement, 73-year-old salesman George Zeliotis became an advocate for reducing waiting times for patients in Quebec hospitals. Jacques Chaoulli is a doctor who provided home appointments to patients. He attempted to get a licence to offer his services as an independent private hospital but was rejected due to provincial legislation prohibiting private health insurance. Together,

144-473: A right to be healthy. " Instead, the right to health is articulated as a set of both freedoms and entitlements which accommodate the individual's biological and social conditions as well as the State's available resources, both of which may preclude a right to be healthy for reasons beyond the influence or control of the State. Article 12 tasks the State with recognizing that each individual holds an inherent right to

216-419: A broad interpretation, citing R. v. Morgentaler among others as examples of delay in medical treatment as a violation of security of person. She further rejects the dissenters' suggestion that a patient could seek medical treatment outside of the province as too extreme and case-specific. Turning to the requisite analysis to justify the violation, Deschamps points to the "minimal impairment" expectation to be

288-661: A clear description [...] may prejudice the uniform interpretation, or at least place in jeopardy the consistent protection the Convention seeks to guarantee." He does, however, acknowledge that the lack of a clear definition for "disability" may benefit the disabled by limiting the State's ability to limit extension of the convention's provisions to specific populations or those with certain conditions. While most human rights are theoretically framed as negative rights, meaning that they are areas upon which society cannot interfere or restrict by political action, Mervyn Susser contends that

360-449: A right to an unreachable standard and that it aspires to a state of health that is too subjectively variable from person to person or from one society to the next. While Susser's discussion centers on healthcare as a positive right, Paul Hunt refutes this view and makes the argument that the right to health also encompasses certain negative rights such as a protection from discrimination and the right to not receive medical treatment without

432-400: A right to health. The Human Rights Measurement Initiative measures the right to health for countries around the world, based on their level of income. The preamble of the 1946 World Health Organization (WHO) Constitution defines health broadly as "a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity." The Constitution defines

504-472: A right. He defines a right as one that is to be defended at all costs, and a concept that is defined and interpreted by the judicial system. Making healthcare a right would require governments to spend a large portion of its resources to provide its citizens with it. He asserts that the healthcare system is based on the erroneous assumption of unlimited resources, as limited resources inhibit governments from providing everyone with adequate healthcare, especially in

576-409: A second (private) tier health sector by prohibiting the purchase and sale of private health insurance. They then describe the problem as an issue of public policy and social values which is not for the courts to decide. In our view, the appellants' case does not rest on constitutional law but on their disagreement with the Quebec government on aspects of its social policy. The proper forum to determine

648-410: A unique voice in health advocacy and promotion. He is careful to note here that, while this likely entails some minimum standard of access to health resources, it does not guarantee or necessitate an equitable state of health for each person due to inherent biological differences in health status. This distinction is an important one, as some common critiques of a "right to health" are that it establishes

720-605: Is a physician best known for launching a Supreme Court challenge against the ban in Quebec on private health care. He has French and Canadian citizenship. Chaoulli was born in France in 1952 and earned a medical degree from the Paris Diderot University . In 1978, he moved to Quebec to study medical education and earned a Master's degree from Université Laval in 1982. Chaoulli has practiced medicine in Quebec since 1986 and

792-405: Is based largely on generalizations about the public system drawn from fragmentary experience, an overly optimistic view of the benefits offered by private health insurance, an oversimplified view of the adverse effects on the public health system of permitting private sector health services to flourish and an overly interventionist view of the role the courts should play in trying to supply a "fix" to

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864-578: Is broken into three broad relationships. The first relationship between Health and Human Rights is a political one. Mann and colleagues state that health policies, programs, and practices have an impact on human rights, especially when state power is considered in the realm of public health. Next, the article posits a reverse relationship: that human rights violations have health impacts. It also calls for health expertise to help understand how health and well-being can be impacted by human rights violations through measurement and assessment. The third segment of

936-451: Is considered. "When the courts are given the tools they need to make a decision, they should not hesitate to assume their responsibilities," she states, claiming that social policies developed by the government should not be shied away from by the courts. Deference should be given only with a justification consistent with democratic values and sufficiently necessary to maintain public order. In concluding, Deschamp points her finger squarely at

1008-509: Is delegated to the State: "States have a special obligation to provide those who do not have sufficient means with the necessary health insurance and health-care facilities, and to prevent any discrimination on internationally prohibited grounds in the provision of health care and health services." Additional emphasis is placed upon non-discrimination on the basis of gender, age, disability, or membership in indigenous communities. Subsequent sections of

1080-616: Is now a general practitioner in France. In 2005, Chaoulli launched a court challenge against the Quebec government with the Supreme Court of Canada , arguing the Canadian implementation of publicly funded health care was not effective at delivering an adequate level of care. After losing in two lower courts, he won the Chaoulli v. Quebec (Attorney General) , the Supreme Court's decision on

1152-522: Is the government's rationing policy that is being challenged here as a violation of the right to "security of person" ( per Canadian Charter) and "personal inviolability" ( per Quebec Charter). Deschamps sides with the trial judge, who found a violation of section 7 of the Canadian Charter, but she interprets it as being more of a violation of the similar section 1 of the Quebec Charter. She adopts

1224-552: Is the normative and legal framework for WHO's work across the broad spectrum of child and adolescent health." Goldhagen presents the CRC as a "template for child advocacy" and proposes its use as a framework for reducing disparities and improving outcomes in child health. Article 25 of the Convention on the Rights of Persons with Disabilities (2006) specifies that "persons with disabilities have

1296-441: Is to convey that, while individual health has been much of the focus for medical and other health provision services, especially concerning physical illness and disability, public health 's focus has more so evolved around how people can be healthy. According to this surprisingly simple definition, public health's mission is to promote positive health and prevention of health problems – disease, disability, premature death. That is,

1368-484: The Universal Declaration of Human Rights , International Covenant on Economic, Social and Cultural Rights , and the Convention on the Rights of Persons with Disabilities . There is debate on the interpretation and application of the right to health due to considerations such as how health is defined, what minimum entitlements are encompassed in a right to health, and which institutions are responsible for ensuring

1440-464: The single-payer health care system. In November 2005, a Quebec provincial white paper on limited private reforms was leaked to the media. The paper proposed allowing the purchase of private medical insurance. To prevent doctors from abandoning the public system, the paper would force doctors to perform a minimum amount of work in the public sector before they would be allowed to perform in the private sector. Jacques Chaoulli Jacques Chaoulli

1512-476: The " Health and Human Rights " to underline the importance of this inextricable link between Health and Human Rights. In the first volume of the "Health and Human Rights", Jonathan Mann and his colleagues published a transformative article to explore the potential collaboration in Health and Human Rights. In this article, Mann et al. describe a framework for connecting the two domains that are interlinked. This framework

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1584-546: The 'minimum standard' of entitlements under the right ought to be established. Additionally, Barlow contends that rights establish duties upon others to protect or guarantee them, and that it is unclear who holds the social responsibility for the right to health. John Berkeley, in agreement with Barlow, critiques further that the right to health does not consider adequately the responsibility that an individual has to uphold his or her own health. American writer and politician Richard Lamm vehemently argues against making healthcare

1656-589: The 1979 United Nations Convention on the Elimination of All Forms of Discrimination against Women outlines women's protection from gender discrimination when receiving health services and women's entitlement to specific gender-related healthcare provisions. The full text of Article 12 states: Article 12 : Health is mentioned on several instances in the Convention on the Rights of the Child (1989). Article 3 calls upon parties to ensure that institutions and facilities for

1728-1214: The 21st century." An alternative way to conceptualize one facet of the right to health is a "human right to health care ." Notably, this encompasses both patient and provider rights in the delivery of healthcare services, the latter being similarly open to frequent abuse by the states. Patient rights in health care delivery include: the right to privacy , information, life, and quality care, as well as freedom from discrimination, torture , and cruel, inhumane, or degrading treatment . Marginalized groups, such as migrants and persons who have been displaced, racial and ethnic minorities , women , sexual minorities , and those living with HIV, are particularly vulnerable to violations of human rights in healthcare settings. For instance, racial and ethnic minorities may be segregated into poorer quality wards, disabled persons may be contained and forcibly medicated, drug users may be denied addiction treatment, women may be forced into vaginal examinations and may be denied life-saving abortions, suspected homosexual men may be forced into anal examinations, and women of marginalized groups and transgender persons may be forcibly sterilized . Provider rights include:

1800-592: The Canadian Charter to reach the same outcome. They observe that the "Charter does not confer a freestanding constitutional right to health care . However, where the government puts in place a scheme to provide health care, that scheme must comply with the Charter." To determine a violation of the Charter, they look at how the Quebec Acts differ from the Canada Health Act ' . They note that unlike with other legislation,

1872-473: The General Comment clarifies the interrelated nature of human rights, stating that, "the right to health is closely related to and dependent upon the realization of other human rights," and thereby underscoring the importance of advancements in other entitlements such as the rights to food, work, housing, life, non-discrimination, human dignity, and access to importance, among others, towards the recognition of

1944-706: The General Comment detail the obligations of nations and international organizations towards a right to health. The obligations of nations are placed into three categories: obligations to respect, obligations to protect, and obligations to fulfill the right to health. Examples of these (in non-exhaustive fashion) include preventing discrimination in access or delivery of care; refraining from limitations to contraceptive access or family planning; restricting denial of access to health information; reducing environmental pollution; restricting coercive and/or harmful culturally-based medical practices; ensuring equitable access to social determinants of health; and providing proper guidelines for

2016-732: The United States, much debate surrounds the issue of "provider consciousness", which retains the right of providers to abstain from performing procedures that do not align with their moral code, such as abortions. Legal reform as a mechanism to combat and prevent violations of patient and provider rights presents a promising approach. However, in transitional countries (newly formed countries undergoing reform), and other settings with weak rule of law, may be limited. Resources and tools for lawyers, providers, and patients interested in improving human rights in patient care have been formulated. As of 2008, at least 115 national constitutions now recognize

2088-504: The Universal Declaration of Human Rights "enshrines a vision that requires taking all human rights—civil, political, economic, social, or cultural—as an indivisible and organic whole, inseparable and interdependent." Likewise, Gruskin et al. contend that the interrelated nature of the rights expressed in the Universal Declaration establishes a "responsibility [that] extends beyond the provision of essential health services to tackling

2160-420: The accreditation of medical facilities, personnel, and equipment. International obligations include allowing for the enjoyment of health in other countries; preventing violations of health in other countries; cooperating in the provision of humanitarian aid for disasters and emergencies; and refraining from use of embargoes on medical goods or personnel as an act of political or economic influence. Article 12 of

2232-411: The best feasible standard of health, and itemizes (at least in part) the 'freedoms from' and 'entitlements to' that accompany such a right; however, it does not charge the State with ensuring that all individuals, in fact, are fully healthy, nor that all individuals have made full recognition of the rights and opportunities enumerated in the right to health. Like the Universal Declaration of Human Rights,

Chaoulli v Quebec (AG) - Misplaced Pages Continue

2304-400: The care of children adhere to health standards. Article 17 recognizes the child's right to access information that is pertinent to his/her physical and mental health and well-being. Article 23 makes specific reference to the rights of disabled children, in which it includes health services, rehabilitation, preventive care. Article 24 outlines child health in detail, and states, "Parties recognize

2376-444: The case, causing a change in the Quebec government's policy on wait times and privatization. In 2006, he called for further privatization to improve wait times. Right to health care The right to health is the economic, social, and cultural right to a universal minimum standard of health to which all individuals are entitled. The concept of a right to health has been enumerated in international agreements which include

2448-445: The connection was missing. In defence of this, they criticize the dissenters' rejection of international data as well and reliance on what they characterized as inconsistent reports from Romanow and Senator Kirby . They begin by phrasing the question as being not one of rationing, but rather whether the province of Quebec not only has the constitutional authority to establish a comprehensive single-tier health plan, but to discourage

2520-498: The courts to interfere too much with lawmakers. The dissenters' final objection is the majority's expansion of the reasoning in R. v. Morgentaler . Binnie and LeBel distinguish R. v. Morgentaler from the current case, as the former was about "manifest unfairness" and criminal liability, not arbitrariness and public health policy, which, they claim, requires a very different analytical approach. The decision proved to be highly contentious by its political nature and its conflict with

2592-591: The determinants of health such as, provision of adequate education, housing, food, and favourable working conditions," further stating that these provisions "are human rights themselves and are necessary for health." Health is briefly addressed in the United Nations' International Convention on the Elimination of All Forms of Racial Discrimination , which was adopted in 1965 and entered into effect in 1969. The Convention calls upon States to "Prohibit and to eliminate racial discrimination in all its forms and to guarantee

2664-414: The disabled should be made available in local communities and that care should be geographically equitable, with additional statements against the denial or unequal provision of health services (including "food and fluids" and "life insurance") on the basis of disability. Hendriks criticizes the failure of the convention to define specifically the term "disability"; he contends further that "the absence of

2736-480: The failings, real or perceived, of major social programs. The dissenters' interpretation of the legislation finds a rational connection to the objectives of the Canadian Health Act: Not all Canadian provinces prohibit private health insurance, but all of them take steps to protect the public health system by discouraging the private sector... the mixture of deterrents differs from province to province, but

2808-427: The framework linking Health and Human Rights introduces the concept that the protection and promotion of human rights and health are linked fundamentally in a dynamic relationship. While literature has largely supported the first two relationships, this third hypothesis has not been explored as substantially. The article supports this concept by stating that this link suggests there are dramatic practical consequences in

2880-468: The global human population. The General Comment also makes additional reference to the question of health equity , a concept not addressed in the initial International Covenant. The document notes, "The Covenant proscribes any discrimination in access to health care and underlying determinants of health, as well as to means and entitlements for their procurement." Moreover, responsibility for ameliorating discrimination and its effects with regards to health

2952-411: The government and suggests the need for change: For many years, the government has failed to act; the situation continues to deteriorate. This is not a case in which missing scientific data would allow for a more informed decision to be made. The principle of prudence that is so popular in matters relating to the environment and to medical research cannot be transposed to this case. Under the Quebec plan,

Chaoulli v Quebec (AG) - Misplaced Pages Continue

3024-431: The government can control its human resources in various ways, whether by using the time of professionals who have already reached the maximum for payment by the state, by applying the provision that authorizes it to compel even nonparticipating physicians to provide services (s. 30 HEIA) or by implementing less restrictive measures, like those adopted in the four Canadian provinces that do not prohibit private insurance or in

3096-406: The growing "outcome gap" between the populations receiving health interventions and the ones that are not. Poor people are not receiving the same treatment, if any at all, as the more financially fortunate. The high costs of medicine and treatment make it problematic for poor countries to receive equal care. He states, "Excellence without equity looms as the chief human-rights dilemma of health care in

3168-578: The health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services." The Universal Declaration makes additional accommodations for security in case of physical debilitation or disability, and makes special mention of care given to those in motherhood or childhood. The Universal Declaration of Human Rights is noted as the first international declaration of fundamental human rights, both freedoms and entitlements alike. United Nations High Commissioner for Human Rights Navanethem Pillay writes that

3240-484: The implementation of the International Covenant on Economic, Social and Cultural Rights" with respect to Article 12 and "the right to the highest attainable standard of health." The General Comment provides more explicit, operational language on the freedoms and entitlements included under a right to health, The General Comment makes the direct clarification that "the right to health is not to be understood as

3312-413: The impugned Acts remove the ability to contract for private health care insurance and in effect create a virtual monopoly for the public health system. On the evidence of significant delays in service, this monopoly harms the right to security of person. Delays in medical treatment could have physical and stressful consequences. In reviewing the public health care systems of several countries they find that

3384-673: The impugned laws in Quebec. After the Supreme Court rendered its judgment, the Attorney General of Quebec asked the Court to stay (suspend) its judgment for 18 months. The Court granted the stay for only 12 months; it therefore expired on June 8, 2006. In August 2005, delegates to the Canadian Medical Association adopted a motion supporting access to private-sector health services and private medical insurance in circumstances where patients cannot obtain timely access to care through

3456-455: The independent operations of, but also in the interaction in activities of, the practice of public health and the practice of human rights. There is what is deemed an interdependence that cannot be negated. Mann and his colleagues further posit that research, education, experience, and advocacy are all required to understand this intersection, in order to understand and advance human well-being globally. Ultimately, Mann and his colleague's mission

3528-475: The long term. Attempting to provide "beneficial" healthcare to all people utilizing limited resources could lead to economic collapse. Lamm asserts that access to healthcare but a small part in producing a healthy society, and to create a healthy society, resources should also be spent on social resources. Another criticism of the right to health is that it is not feasible. Imre J.P. Loefler, former editor of Nairobi Hospital Proceedings and frequent contributor to

3600-411: The matter being resolved by or applicable to the constitution. They state that "it will likely be a rare case where s. 7 will apply in circumstances entirely unrelated to adjudicative or administrative proceedings." However, they claim, this is not one of those times. Instead, they lament the overextension of the constitution: The Court has been moving away from a narrow approach to s. 7, which restricted

3672-467: The one of the most interest. Expert and witness testimony was examined of which she found it to be not particularly credible or useful. She then examines other provinces' health legislation, finding the lack of prohibitory legislation allows her to conclude that the Quebec Acts are not necessary to preserve the public health plan. Studies on public health programs in other countries examined by Deschamps support this claim. The issue of deference to government

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3744-414: The other OECD countries. While the government has the power to decide what measures to adopt, it cannot choose to do nothing in the face of the violation of Quebecers' right to security. The government has not given reasons for its failure to act. Inertia cannot be used as an argument to justify deference. Both McLachlin and Major agree with Deschamp's reasoning but rely more on section 7 and section 1 of

3816-500: The present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for: In 2000, the United Nations' Committee on Economic, Social and Cultural Rights issued General Comment No. 14, which addresses "substantive issues arising in

3888-596: The present government's policy on health. There are those, who argue that this decision could potentially lead to the dismantling of the Canadian Medicare system, while others suggest that this could be a much-needed wake-up call to repair the ailing system. This ruling could have a direct effect on most provinces that currently have laws that are designed to discourage the private sector, in particular Ontario , Manitoba , British Columbia , Alberta , and Prince Edward Island , which all have legislation very similar to

3960-461: The recipient's voluntary consent. However, Hunt does concede that some positive rights, such as the responsibility of society to pay special attention to the health needs of the underserved and vulnerable, are included in the right to health. Paul Farmer addresses the issue of unequal access to health care in his article, "The Major Infectious Diseases in the World - To Treat or Not to Treat." He discusses

4032-477: The right of everyone, without distinction as to race, color, or national or ethnic origin, to equality before the law," and references under this provision "The right to public health, medical care, social security and social services." The United Nations further defines the right to health in Article 12 of the 1966 International Covenant on Economic, Social and Cultural Rights , which states: The States Parties to

4104-430: The right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health. States shall strive to ensure that no child is deprived of his or her right of access to such health care services." Towards implementation of this provision, the Convention enumerates the following measures: The World Health Organization website comments, "The CRC

4176-483: The right to health as "the enjoyment of the highest attainable standard of health," and enumerates some principles of this right as healthy child development; equitable dissemination of medical knowledge and its benefits; and government-provided social measures to ensure adequate health. Frank P. Grad credits the WHO Constitution as "claiming ... the full area of contemporary international public health," establishing

4248-412: The right to health as a "fundamental, inalienable human right " that governments cannot abridge, and are rather obligated to protect and uphold. The WHO Constitution, notably, marks the first formal demarcation of a right to health in international law. Article 25 of the United Nations' 1948 Universal Declaration of Human Rights states that "Everyone has the right to a standard of living adequate for

4320-550: The right to health is a particularly unique and challenging right because it is often expressed as a positive right , where society bears an obligation to provide certain resources and opportunities to the general population. Susser further sets out four provisions that he sees as covered under a right to health: equitable access to health and medical services; a "good-faith" social effort to promote equal health among different social groups; means to measure and assess health equity; and equal sociopolitical systems to give all parties

4392-461: The right to health. Sometimes, these rights are justiciable, meaning that they can be pursued by action in court. Indeed, a trend in constitutional reform around the world has been both to entrench the right to health and make it justiciable. The US is an outlier to these trends, at least at the federal level. Nonetheless, there have been campaigns in the US seeking to support a constitutional recognition of

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4464-424: The right to health. Where constitutions do recognize a justiciable right to health, the responses by courts has been mixed. In 2022, Oregon became the first state to enact a constitutional right to health care through Oregon Ballot Measure 111 . Harvard -trained scholar Philip Barlow writes that healthcare should not be considered a human right because of the difficulty of defining what it entails and where

4536-519: The right to health. Similarly, the General Comment acknowledges that "the right to health embraces a wide range of socio-economic factors that promote conditions in which people can lead a healthy life, and extends to the underlying determinants of health." In this respect, the General Comment holds that the specific steps towards realizing the right to health enumerated in Article 12 are non-exhaustive and strictly illustrative in nature. The inextricable link between Health and Human Rights Jonathan Mann

4608-623: The right to quality standards of working conditions , the right to associate freely, and the right to refuse to perform a procedure based on their morals. Healthcare providers often experience violations of their rights. For instance, particularly in countries with weak rule of law, healthcare providers are often forced to perform procedures which negate their morals, deny marginalized groups the best possible standards of care, breach patient confidentiality, and conceal crimes against humanity and torture. Furthermore, providers who do not oblige these pressures are often persecuted. Currently, especially in

4680-441: The right to the enjoyment of the highest attainable standard of health without discrimination on the basis of disability." The sub-clauses of Article 25 state that States shall give the disabled the same "range, quality, and standard" of health care as it provides to other persons, as well as those services specifically required for prevention, identification, and management of disability. Further provisions specify that health care for

4752-466: The scope of the section to legal rights to be interpreted in light of the rights enumerated in ss. 8 - 14 . In effect, the dissenters say, the Court is only protecting the right to contract and pushing Canada into its own Lochner era , while dismissing those that claimed privatizing will not necessarily solve the problem. They characterize the majority's use of the word "arbitrary" as meaning "unnecessary," claiming that if that were true, it would require

4824-484: The social policy of Quebec in this matter is the National Assembly. The characterization of the problem by the majority contains too much ambiguity, they claim. How can the court determine what is a "reasonable" wait time, they ask? Binnie and LeBel primarily take issue with the majority's claim that the law is arbitrary contrary to the principles of fundamental justice . appellants' argument about "arbitrariness"

4896-453: The traditional sense of individual health as understood and processed by health care services is "one essential condition for health", but does is not the sole qualifier or an exchangeable term with "health". In other words, health care services are not sufficient for health, as public health practitioners understand it – there are external factors that have both nuanced as well as pronounced positive and negative impact on health and well-being of

4968-413: The two men sought a declaratory judgment to contest the prohibition. Three separate opinions were written. The first is by Deschamps who found a violation of the Quebec Charter, but stated there was no necessity for her to rule on the Canadian Charter. A second opinion was written by McLachlin C.J. and Major J. , with Bastarache J. concurring, on the violation of section seven. A dissenting opinion

5040-510: The underlying policies flow from the Canada Health Act and are the same: i.e. as a matter of principle, health care should be based on need, not wealth, and as a matter of practicality the provinces judge that growth of the private sector will undermine the strength of the Canada Health Act. They admit agreeing with the majority and the trial judge that the law will put some Quebecers life and "security of person" at risk, but they do not see

5112-611: Was a Francois-Xavier Bagnoud Professor of Health and Human Rights and Professor of Epidemiology and International Health at the Harvard T. H. Chan School of Public Health . He was known for being a powerful pioneer and advocate for the promotion of health, ethics, and human rights, championing the theory that Health and Human Rights were inextricably interlinked in a dynamic relationship. According to Mann, Health and Human Rights are complementary approaches for defining and advancing human well-being. In 1994, Jonathan Mann and his colleagues started

5184-434: Was given by Binnie and LeBel JJ. with Fish J. concurring in dissent. . The appeal court's characterization of the issue as an infringement of an economic right is rejected by Deschamps. She goes on to note that the long waits at hospitals can result in deaths and that private health care prohibited by the Quebec Acts would likely have saved those lives. The wait lists, she claims, are an implicit form of rationing, and it

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