Good morning.
My name is Mélanie Bourassa Forcier and I am a professor in the Faculty of Law at the Université de Sherbrooke, where I direct the master’s programs in health law and policy. I would like to thank the committee for inviting me to come and give my impressions on the development of a national pharmacare program.
Am I for or against a national pharmacare program? Basically, I subscribe to the two positions that have been presented to you today. I believe that they can be reconciled to a certain extent. Clearly, I am in favour of access for all to medication. However, assuming that the federal government does not want to revisit the provinces’ tax base in order to maintain their autonomy in their areas of jurisdiction, I am in favour of increasing federal transfer payments to the provinces. Those transfer payments would allow the provinces first, to ensure access for all to medications, second, to increase their pharmacare coverage, and third, to ensure the sustainability of their programs that could be threatened by the advent of biological medications that are particularly costly.
In addition, I would add that I am in favour of increasing federal transfers in order to ensure health care services that go beyond the archaic philosophy whereby medically necessary services are those centred on hospitals. It therefore seems important to me to broaden the definition of what can be considered medically necessary. I am likewise in favour of reducing the costs of medications. No one can be against that. However, you will have gathered that I am in favour of respecting federal and provincial areas of jurisdiction.
Let us discuss the savings alleged in contemporary studies on the establishment of a national pharmacare program. Basically, this is all about the savings mentioned in contemporary studies. The oldest studies on the matter, the Hill, Kirby and Romanow reports, focused on the idea of universal access and not on the savings that could result from the establishment of a national pharmacare program. Therefore, the savings alleged in the contemporary studies on the establishment of a national pharmacare program are essentially the result of volume—as Ms. Flood mentioned. Clearly, one single major insurer has much greater negotiating power than a multiplicity of insurers. Such are the laws of the marketplace.
Of course, consolidating power has its advantages: savings are considerable because of bulk buying, because there is a single set of rules, and because all Canadians have equal access. However, consolidation also means setting decision-making autonomy aside, sometimes at a cost. Without that cost, we would long ago have seen the advantage of joining with the United States to increase the volume of our purchases of a variety of goods. If the federal government had not held fast to that autonomy, Health Canada would long ago have accepted medications being put on the market after they had been approved in other jurisdictions, rather than conducting its own health testing. So yes, autonomy comes at a cost, but it also has a value.
Therefore, I am against a national pharmacare program that would be established pursuant to any federal legislation other than the Canada Health Act. I also want to remind you of the 2011 Supreme Court of Canada decision on the Reference re Securities Act. You may recall that the reference dealt with the constitutionality of an act designed to create a fully national program to regulate securities. Section 9 stated that the purposes of the act were to provide investor protection, to foster fair, efficient and competitive capital markets and to contribute to the integrity and stability of Canada’s financial system. In a word, the objectives were laudable and difficult to contest.
As the Supreme Court pointed out, the act as worded did not unilaterally impose a unified system of securities regulation. Instead, it permitted provinces and territories to opt into the program if and when they wanted. The court held that the act was unconstitutional because it exceeded the powers of the federal government and represented an interference into provincial areas of jurisdiction. I remind you that the same court, in its 1997 decision in Eldridge, once more confirmed provincial jurisdiction over health.
However, the same court, still in the securities decision, insisted that it was possible for provinces to cooperate contractually to establish a national securities program.
In my opinion, the pan-Canadian Pharmaceutical Alliance is the way to reach such a consensus on the supply and coverage of medications in Canada.
However, I will conclude by insisting that it is important for the federal government to maximize the development of its own jurisdiction, given its clear impact on the costs Canadians pay for medications.
In my opinion, therefore, the federal government should intervene more broadly in the area of public health. With patented medications, the federal government has the power to intervene—as has been mentioned—through the Patented Medicine Prices Review Board. The board is currently in the process of reviewing its mandate, but it is still important to act quickly, especially with a view to regulating the prices of biological medications. There is also the issue of preventing sudden increases in the price of medications.
Unfortunately, as you know, the board does not have the power to regulate the prices of non-patented medications. However, the federal government's jurisdiction over competition may be a factor here. The Competition Bureau’s mandate is too limited, in my opinion. A registry of all mergers and acquisitions in the pharmaceutical industry, as well as an examination of the impact of agreements between pharmaceutical companies on competing in the marketplace could certainly ensure greater competition and lower prices.
Thank you for your attention.