Duality means less health care for all, says Murphy

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By Jesse Robichaud
Times & Transcript Staff

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FREDERICTON - Health Minister Mike Murphy says his governance reforms will move forward undeterred by the threat of a legal challenge headed by a retired justice of the Supreme Court of Canada.

Michel Bastarache is offering a legal opinion to a group that has opposed the reforms, and could direct the challenge which would be formally argued by Université de Moncton jurist Michel Doucet.

The reforms, which include a transition from eight to two health authorities and the creation of a health council and shared services agency, will be implemented on Sept. 1.

Murphy, an experienced trial lawyer, said he wasn't surprised when he read that Bastarache was warning the Liberal government that it could save "a lot of grief" by searching out middle ground and listening to the group he is representing, the Committee for Equality in Health Services in French (CEHSF), before a legal challenge is launched.

"Mr. Bastarache was a well-regarded lawyer and a well regarded jurist, but he is now once again a lawyer, and he is doing his job that he is now paid to do," said Murphy, who also noted Doucet's extensive experience in high profile cases like the restoration of the Petitcodiac River.

"They are advocating the positions of their client. They are not going on to the front pages of the newspapers across the province to say they aren't going to win."

Murphy said New Brusnwickers need to understand that duality will place huge financial burdens on the healthcare system that will make it impossible to sustain the current level of service.

"They (CEHSF) have clearly expressed their desire for duality. It has to be known that the duality in the fiscal world we live in can only be described as less health care for all New Brunswickers, French-speaking and English-speaking, north and south" said Murphy.

Bastarache said a court's decision on the legality of the reforms could actually force the province to move toward duality, but Murphy said the province cannot back away from the changes.

"We have to remember we have one health care system that is accessible to both communities. My mandate is to make sure we are able to sustain what we have," said Murphy, noting that the province's health budget is growing by six per cent each year compared to three per cent for other government departments.

"The duality of which many speak would cost many hundreds of millions more."

Murphy says duality in health is not an option in New Brunswick because the province can't afford it.

Murphy admits a legal challenge will occur "in all probability," but he says he cannot allow the threat of a legal challenge to derail what he sees as necessary changes.

"I am not going to answer hypothetical questions about what a court may do in nine months or four years. My mandate is to look after the system we have in pace and I will be doing that day to day as we go forward." He says the reforms were crafted to reduce spending, refocus the health care system on patients, and at the same time respect the constitution.

"The language rights have been well preserved in this new stricture, and it's all about patient care and lessening administrative costs."

Opponents to the changes have criticized the new structure because they say high-level specialized services are concentrated in RHA A, which covers mostly English-speaking areas.

However, Murphy has said the two new regional health authorities will operate cooperatively to offer a seamless healthcare system. He has also said that high-level services will be distributed in a way that will address the inequalities which he insists exist only in the most specialized services.

Opponents of the reforms have also criticized the loss of the Beausejour Regional Health Authority and the removal of elected trustees on the boards of regional health authorities.

The group Bastarache is representing sees the governance issue, and the loss of what they consider an Acadian institution that they say can be viewed in the same light as the Montfort hospital in Ottawa, as central themes to a possible legal challenge.

However, Murphy says that nothing is gained and nothing is lost in the new legislation that doesn't designate authorities A or B as French or English, but does allow each authority's board to operate in French and English respectively.

"We have to remember it was never designated by legislation as a francophone authority, that was something that was declared by their board," he said.

"Just as in their old legislation, there was no designation, and in the new legislation there is no designation," he said.

Murphy has said that the soon-to-be appointed health council, which is chaired by Rino Volpé, will offer a forum for the public to express itself on health care issues, and says the new health authorities shouldn't be viewed jumbo reproductions of the previous authorities.

"There is an argument on governance and there is an argument on access. What I have said in the past is that we have made provision to protect minority rights as it pertains to governance and certainly as it pertains to access."

However, Murphy says administrative reforms will not change the fact that patients can be served in either language in New Brunswick hospitals and health centres.

"The administrative units of A and B are just that, administrative unites. An Anglophone living in Woodstock has access to oncology services at the Georges Dumont (Hospital) or at Grand Falls."

In fact, he says patients won't notice any changes when the two new regional health authorities take over in September. However, he says best practices and new standards will eventually be implemented to ensure each area of the province is receiving a similar standard of care.

While Bastarache, who retired in June, will play a central role in a legal challenge if it moves forward, he will not be able to enter the courtroom to argue the case. That is because judges who retire in Canada must wait five years before they can argue a case in a court at the same level or lower level.

Bastarache's position in the country's highest court means he is restricted from arguing cases anywhere in Canada for the next five years.

Although Bastarache will be playing a different role, a former president of the law society of New Brusnwick, Robert Basque, says many of the same guiding principles apply on both sides of the courtroom.

"One of our jobs as a lawyer is to be objective and to give our clients advice based on the law. So a former judge who is giving advice certainly has client certainly has those obligations," he said.

"Whether they Queen's Counsel or retired justices of the Supreme Court, they all have the same obligation."

Basque said there are many examples of retired Supreme Court justices and other judges who return to the private sector to work, like New Brunswick's Gerald Laforest who became affiliated with the Stewart McKelvey law firm.

Basque says there retired judges, and high profile politicians, often flock to major law firms, like the one Bastarache has joined, Heenan Blaikie, in order to take on major cases even when they can't argue directly in the courtroom.