New Brunswick's limits on physician resources ruled constitutional
CMAJ 2000;162:1726
It took 7 years for New Brunswick doctors to get their day in court but only 10 days for a judge to determine that the provincial government did not infringe upon the constitutional rights of physicians when it introduced a physicians' resource management plan in 1992. Just 10 days after hearing the evidence — and 2 months before a decision was expected — Court of Queen's Bench Justice Hugh McLellan ruled that the "legislature may on its own initiative take drastic action to change medicare."
The Professional Association of Residents in the Maritime Provinces (PARI-MP) and 4 New Brunswick physicians had accused the government of violating Canada's Charter of Rights and Freedoms in 4 ways: restricting doctors' mobility, infringing on the concept of liberty as described in the charter, not allowing for free association and discriminating on the basis of sex.
Under the province's 1992 physician resource plan, New Brunswick was divided into 7 health regions, each with a cap on the number of doctors allowed to practise (see CMAJ 2000;162[8]:1186). Since it was introduced, the province has experienced one of Canada's most severe physician shortages. At present there are about 50 unfilled positions; simply to reach the national per capita average, New Brunswick would need to attract another 300 doctors.
PARI-MP has already announced that it will appeal McLellan's ruling. "It's a matter of fighting legislation that we feel is unjust," says PARI-MP Executive Director Sandy Carew Flemming. "We'll take it as far as we can [because] this has such national significance for all physicians in practice."
Although McLellan did find that the New Brunswick government's plan "has sharply reduced the rate of growth of the number of physicians in the province and makes it very difficult for hospitals to recruit physicians in new specialties," he concluded that there were no charter violations.
Carew Flemming says the judge may have misunderstood the issue of mobility, the primary concern. "We feel the judge missed the point. It wasn't new physicians inside New Brunswick versus new physicians outside New Brunswick. The discrimination exists between all new physicians and those physicians currently practising in New Brunswick. He's comparing the wrong groups."
Clearly, though, the judge was saying that the government has the right to make policy and implement programs, even though they may be restrictive. "Judges," McLellan noted in his 18-page written decision, "do not make the difficult choices on taxation levels, public spending, public policies or legal reform. Those matters are all within the respective jurisdictions of the legislature and Parliament." — Donalee Moulton, Halifax
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