The devil is in the details: legislative changes and access to healthcare

Concerns with the current state of the healthcare system in Canada continue to occupy the forefront of public discourse. Following the pandemic, the healthcare system remains strained, short-staffed and heavily backlogged. Canadians are impacted by these systemic issues in multiple ways. The most important concerns are the difficulties accessing healthcare, including family physicians, long surgical wait times, and costs to obtain health services and products which are not publicly funded by government health insurance plans.

Health industry participants in both the public and private sectors have been finding creative ways to facilitate Canadians’ access to health and wellness services for many years. This has included expanded employee or group benefit programs, virtual care offerings and making uninsured health and wellness services available to Canadians for a fee. Both provincial and federal governments are alive to the concerns Canadians have about our health system and new legislation focused on cost effective ways of facilitating access to healthcare services and products is in progress.

Provincial healthcare system reform

The impact of the Ontario government’s Integrated Community Health Services Centres Act, 2023 (Act) will soon become apparent, as we anticipate that new licences for health service centres will be issued in the coming year. The Act replaced the Independent Health Facilities Act in 2023. It governs privately owned and operated clinics in Ontario, referred to as integrated community health services centres, that provide publicly-funded diagnostic and surgical services. As of the date of this article, the outcome of the 2024 call for applications for new licences to operate MRI and CT-scan diagnostic centres in Ontario has not yet been announced. The issuance of new licences for GI endoscopy surgical centres and the highly anticipated orthopedic surgery centres will follow. 

Respondents to the Ontario government’s calls for licence applications are asked to explain how the issuance of a licence for the particular health services centre will reduce patient wait times, improve patient experience and be integrated into the public healthcare system. As a result, there is hope that these new facilities will ease the burden on public hospitals and improve patients’ experience, while facilitating entry of new participants into the Ontario health industry.  

Significant health system reform in other provinces has been ongoing and will continue throughout 2025, notably in Alberta and Québec.

The Health Statutes Amendment Act, 2024 reorients Alberta’s healthcare system by moving from a centralized system to an integrated one. Specifically, future changes in Alberta will include replacing Alberta Health Services with four agencies that will govern primary care, acute care, continuing care and mental health and addiction. The stated goal of this change is to narrow the focus of each of the four agencies within its respective scope in order to foster a streamlined healthcare system.

The changes in Alberta can be contrasted with Québec’s Bill 15, An Act to make the health and social services system more effective. Bill 15 establishes Santé Québec, an entity that manages the operations of the healthcare system and separates it from the administration of policy and strategic planning. Reminiscent of Ontario’s 2019 Connecting Care Act, the stated goal of Bill 15 is to provide a more effective service to the public through centralized oversight, replacing the prior regionalized approach.

The implementation of Bill 15 is expected to take more than a year. In parallel, the Québec healthcare system will also be implementing the Act respecting health and social  services information and amending various legislative provisions. Bill 15 recently entered into force and requires significant changes in the handling of personal health information, as described in our privacy Osler Legal Outlook article.

Federal legislative changes anticipated in the coming years

The federal government has been active in proposing and enacting legislation that is aimed at improving access to health services in Canada. The potential expansion of the scope of the Canada Health Act to include nurse practitioner services, the development of a new federally insured pharmacare program, as well as the enactment of new federal requirements that would apply to health information technology vendors are examples of some of the key changes in progress, with important details remaining subject to clarification through future regulation, consultations, or interpretation policy.

While key changes are in progress, important details remain subject to clarification through future regulation, consultations, or interpretation policy.

The federal government also has the ability to impose terms and conditions on provinces in funding agreements between the federal and provincial governments. Although healthcare falls within exclusive provincial jurisdiction, the Canada Health Act sets out the principles relating to funded healthcare services in Canada. These include public administration, comprehensiveness,  universality, portability and accessibility. The extent to which provinces and territories conform to these principles determines how much of the Canada Health Transfer funding they will receive.

Potential expansion of the Canada Health Act to nurse practitioner services

The Canada Health Act provides that “insured services” provided by health professionals outside of the hospital or surgical-dental context must be services rendered by physicians. This year, the federal Minister of Health confirmed his intent to issue a Canada Health Act interpretation policy regarding physician-equivalent services and virtual care. The Minister has noted that this letter will “clarify the application of the Canada Health Act on the modernization and improvements in health care, including virtual care, telemedicine, and the expansion of the scopes of practice of health workers, such as nurse practitioners”. 

It is unclear whether any interpretation policy that states that services provided by nurse practitioners are included under the ambit of public health insurance will be accompanied by a corresponding amendment to the Canada Health Act to support this interpretation. In any event, if the scope of the Canada Health Act is expanded to include the services of nurse practitioners as insured services, this could muddy the waters for businesses and private participants within the health industry who are currently charging privately for nurse practitioner services. The consequences of such a change will ultimately depend on the scope of any specific amendments made to the Canada Health Act, as well as the provincial rules and regulations that will be implemented in response to any such federal changes. It may be that including the services of nurse practitioners within services that are paid for by provincial governments will not necessarily preclude providers from also charging privately for nurse practitioner services.

The Pharmacare Act

Canada does not currently have a universal pharmacare program. Provincial and territorial public drug benefit programs that do exist are not implemented in a uniform manner. Against this backdrop, the federal government’s Pharmacare Act received royal assent and immediately came into force in October 2024. The stated purpose of the Pharmacare Act is to improve affordability and accessibility of prescription drugs, support the development of a national formulary of prescription drugs and devise a national bulk purchasing strategy.

The Pharmacare Act does not establish universal pharmacare; rather it imposes an obligation on the federal Minister of Health to take steps towards developing universal pharmacare coverage. Although the Pharmacare Act is currently in force, many of the key terms used in the Pharmacare Act have not been defined. Therefore, the impact that the legislation will have in 2025 and beyond is difficult to predict.

By way of example, the Pharmacare Act commits the federal government to providing long-term funding for pharmaceutical products, beginning with those used for the treatment of “rare diseases”. Unfortunately, “rare diseases” is not defined. In addition, the Pharmacare Act guarantees “universal, single-payer, first-dollar coverage” to increase any existing public pharmacare coverage for specific prescription drugs and related products intended for contraception and the treatment of diabetes. The implementation of this coverage, however, is subject to funding agreements to be entered into between the federal Minister of Health and provincial and territorial governments.

In addition, national pharmacare coverage is subject to the development of formularies and strategies for operational and financial details. These are to be developed through future discussions, as well as work that will be conducted by Canada’s Drug Agency and a new committee of experts.  It is unclear how this coverage will interact with existing public drug plans and private insurance coverage to which many Canadians already have access.

Health technology and artificial intelligence

The proliferation of artificial intelligence (AI) is anticipated to have transformative effects on the way that healthcare is delivered in Canada. Its impacts are likely to be greater than any legislative amendment. The regulatory landscape with respect to the use of AI in healthcare is currently somewhat limited, being largely based on general principles and guidance issued by health regulatory and privacy authorities in Canada, as well as the existing rules governing software as a medical device. 

In order to properly realize the opportunities that AI and machine learning applications could have in the healthcare sector, access to interoperable, large and aggregated amounts of data is crucial.  In addition, ensuring that patients and their healthcare providers have access to patient health information is critical to the effective provision of healthcare, improvement in patient outcomes and reduction of unnecessary testing. Accordingly, in June 2024, the federal government tabled Bill C-72 An Act respecting the interoperability of health information technology and to prohibit data blocking by health information vendors. If passed, Bill C-72 would enact the Connected Care for Canadians Act.

As many of the key terms necessary to understanding the potential implications of Bill C-72 will need to be clarified through regulations that have not yet been drafted, the impact these proposed new rules could have on both existing and new health technology vendors is currently undetermined. Given the importance of AI and the many other benefits that enhanced access to health information could provide, the possibilities are significant.

Navigating ongoing changes

Although recent legislative changes are primarily aimed at expanding or improving access to publicly funded health services, the role for private participants in the Canadian health industry will continue to be important for many years to come. Certain proposals are directed at facilitating private sector participation with a view to easing problems with the public system.

The legislative changes proposed or enacted in 2024 are laying the groundwork for significant developments in health reform. Unfortunately, until key details are clarified, it is too soon to assess the impacts of those changes. There can be no doubt, however, that further changes will be needed to address the current challenges many Canadians face when accessing healthcare.