Refugee health care is the provision of health services to refugees and refugee claimants. As early as 2009, health researchers identified particular medical needs and health vulnerabilities amongst these populations. Compared to other immigrants, they report more physical, emotional, and dental problems and, compared to those born in Canada, they have higher rates of infections and chronic diseases that are both treatable and preventable. in
In Canada, the federal government has been responsible for the provision of health care to refugees since 1957. Under international law, this responsibility falls under Canada's human rights obligations to recognize the right to health for all, including refugees.
Right to health
International law
The concept of a "right to health" has been recognized in a number of international rights instruments to which Canada is a party.International Human Rights instruments that acknowledge a "right to health" to which Canada is a party include: The 1966 International Covenant on Economic, Social and Cultural Rights: art. 12, the 1965 International Convention on the Elimination of All Forms of Racial Discrimination: art. 5 (e) (iv), the 1979 Convention on the Elimination of All Forms of Discrimination against Women: arts. 11 (1) (f), 12 and 14 (2) (b), the 1989 Convention on the Rights of the Child: art. 24, and the 2006 Convention on the Rights of Persons with Disabilities: art. 25. It was first articulated in the 1946 Constitution of the World Health Organization as "the right to the enjoyment of the highest attainable standard of physical and mental health."Constitution of the World Health Organization (Official Records of the World Health Organization, no. 2, p. 100) and entered into force on 7 April 1948, art. 12. Article 25 of the 1948 Universal Declaration of Human Rights also mentions the right to health as part of the right to an adequate standard of living.Universal Declaration of Human Rights, G.A. res. 217A (III), U.N. Doc A/810 at 71 (1948). Some international human rights instruments acknowledge a right to health by general application and others through the protection of rights of specific groups such as women or children. In 1966, the right to health was recognized as a human right in article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), which imposes an obligation on state parties to the Covenant to create "conditions which would assure to all medical service and medical attention in the event of sickness".International Covenant on Economic, Social and Cultural Rights GA res. 2200A (XXI), 21 UN GAOR Supp. (No. 16) at 49, UN Doc. A/6316 (1966); 993 UNTS 3; 6 ILM 368 (1967), art. 12.
Canadian law
The Canadian Charter of Rights and Freedoms does not include any express protection of the right to health. The Canadian government has frequently argued in court that social and economic rights—including the right to health—are merely 'policy objectives' that are not subject to judicial intervention. The ICESCR Committee has voiced concern over Canada's lack of compliance to these international obligations. It argues that such submissions are incompatible with Canada's obligations to provide remedies to violations of Covenant rights in domestic law.United Nations Committee on Economic, Social and Cultural Rights, Concluding Observations on Canada, E/C12/1993 (10 June 1993), para 15.
Charter Cases
Right to health claims under the Charters section 15 equality provision have had limited success. In Eldridge v. British Columbia, in the context of the provision of sign language, the Supreme Court found that the government should ensure that disadvantaged members of society have equal access to benefits. The Court noted that any finding to the contrary would result in a "thin and impoverished view… of equality".Eldridge v. British Columbia (Attorney General) 2 S.C.R. 624, para 13. In a later case about the provision of autism services, Auton v. British Columbia, the Court narrowed the Eldridge approach by requiring that protected benefits be ones "provided by law".Auton (Guardian ad litem of) v. British Columbia (Attorney General), 3 S.C.R. 657, 2004 SCC 78, para 27.
Though a substantive equality approach to section 15 has had limited success in remedying health and other social and economic rights violations of disadvantaged groups, Colleen Flood, one of Canada's leading health law professors, argues that failed claims can contribute to furthering equality by illuminating a problem and generating political support for its resolution.
Interim Federal Health Programme (IFHP)
In Canada, the provision of basic health care for refugees and refugee claimants is regulated by the Interim Federal Health Programme (IFHP''') before they are covered by provincial or territorial health insurance plans. The IFHP was introduced through an Order in Council by the federal government in 1957,Order in Council PC 157-11/848, June 20, 1957. and has been managed by Citizenship and Immigration Canada since 1995.
Prior to June 2012, the IFHP provided refugees and asylum seekers with basic health care coverage as well as supplemental coverage including access to medication, dentistry, and vision care.Government of Canada, Citizenship and Immigration Canada, News Release, 2012: http://www.cic.gc.ca/english/department/media/releases/2012/2012-04-25.asp. Those whose application for refugee status were denied retained coverage until they were deported.
2012 Reform
The Canadian government introduced a series of changes in April 2012. As of its date of effect on 30 June 2012, IFHP divides asylum seekers into three categories with differing levels of health coverage depending upon the person's country of origin. There are now three baskets of services:
expanded health care coverage; health care coverage; and public health or public safety health care coverage.
If the refugee claimant is from a designated country of origin, they will receive "very limited" health coverage.Government of Canada, Citizenship and Immigration Canada, IFHP Info Sheet: http://www.cic.gc.ca/english/refugees/outside/ifhp-info-sheet.asp. Some of the provinces have stepped in to cover services and medication no longer provided under the IFHP."Refugee Health-care Cuts by Ottawa before the Courts." CBC News: Politics [Toronto] 30 Jan. 2014.
Government rationale In defending the changes, the government explained its rationale as being to ensure equality between the health care received by refugees and that afforded to Canadians such that refugees would not receive superior benefits. Former Citizenship and Immigration Minister Jason Kenney emphasized the generosity of Canadians and Canada's immigration system, stating that the government did "not want to ask Canadians to pay for benefits for protected persons and refugee claimants that are more generous than what they are entitled to themselves." In a related case, Nell Toussaint v. Attorney General of Canada, the Supreme Court cautioned that by extending universal health care regardless of immigration status, Canada "could become a health-care safe haven."
The government also made cost and deterrence arguments in favour of reforming the legislation. These changes were estimated to save $100 million over five years. The government argued that the cuts would deter claimants who are drawn to the country for its health care.
Public criticism
Critics of the 2012 reforms include the Canadian Medical Association Journal and the Canadian Paediatric Society.Samson, Lindy, and Charles Hui. Cuts to Refugee Health Program Put Children and Youth at Risk. Canadian Paediatric Association, 2012. The heads of eight major professional associations including nurses, social workers, and physicians signed a letter opposing the cuts, demanding that pre-2012 refugee health provision be restored.Padmos, Andrew, Sandy Buchman, Jeff Poston, John Haggie, Robert Sutherland, Fred Phelps, and Lillian Linton. Letter to Hon. Jason Kenney. 18 May 2012. MS. Ottawa, Ontario These advocates argue that the differential treatment of refugees and refugee applicants depending on their country of origin is discriminatory. Ontario's Health Minister Deb Matthews called for the changes to be reversed stating that "this policy change will create a class system for health care in Canada."
Legal challenges of right to health
The Canadian Charter of Rights and Freedoms does not include any express protection of the right to health, but this right has been protected indirectly by Courts through the use of other provisions, such as the section 15 equality guarantee. Cousins Section 15(1) provides that:[E]very 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.Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to The Canada Act 1982 (U.K.), 1982, c.11, art. 15(1).The current legal test for a section 15 equality analysis comes from Andrews as affirmed in R v Kapp. It requires that the court satisfy two conditions: (1) the law creates a distinction based on an analogous or enumerated ground; and (2) the distinction creates a disadvantage by perpetuating prejudice or stereotyping.'R v Kapp', 2008 SCC 41, 2 SCR 483, para 17.
CDRC and CARL litigation The right to health has been litigated under Charter provisions outside of section 15. In December 2013, the Canadian Doctors for Refugee Care (CDRC) and the Canadian Association of Refugee Lawyers (CARL) brought a challenge to the Federal Court of Canada claiming that the government's cuts to refugee health care were unconstitutional."Backgrounder: Legal Challenge to Cuts to Refugee Healthcare." Canadian Association of Refugee Lawyers. 2013. Specifically, CARL proposes that both "country of origin" and "immigration status" are discriminatory grounds under section 15(1) of the Charter.Legal Challenges to Refugee Health Cuts Begin Today, Canadian Association of Refugee Lawyers, 17 December 2013 http://www.carl-acaadr.ca/articles/61
The CDRC/CARL challenge to the IFHP reforms is founded on two additional Charter provisions:
the right to life and security of the person under section 7; and the right not to be subjected to cruel and unusual treatment under section 12.
Nell Toussaint v. Attorney General
Prior to the 2012 reforms, in Nell Toussaint v Attorney General, Toussaint challenged the constitutionality of the IFHP on the basis of the proposed analogous grounds of disability and citizenship.'Toussaint v Canada (Attorney General)', 2011 FCA 213, para 79. The Court found neither of these grounds to be applicable to the claimant in question, but made a point of leaving open the question as to whether immigration status could be an analogous ground. If found to be an analogous ground, the applicant's exclusion from IFHP coverage could have been in violation of section 15(1) of the Charter.'Toussaint v Canada (Attorney General)', 2011 FCA 213, para 81.