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The Private Sale of Cancer Drugs in Ontario's Public Hospitals: Tough Issues at the Public/Private Interface in Health Care

As increases in health care spending outpace economic growth, governments increasingly face tough choices. One significant cost driver is the influx of new technologies, particularly expensive drug therapies. In response, provincial governments are increasingly scrutinizing the costs and benefits of new drugs and determining that despite some therapeutic benefit, they are not sufficiently beneficial to receive public funding. These choices raise complex legal, economic, political, and ethical issues. This paper explores these issues as they pertain to Ontario's recent decision not to publicly fund three cancer drugs - Velcade, Alimta, and Zevalin. To be clear, although not considered sufficiently cost-effective to warrant public funding in Ontario these drugs are of some therapeutic benefit; indeed, a physician may strongly recommend one or more of these drugs to extend a patient's life by a few months. This is illustrated by the fact that the provinces of Quebec, Alberta and British Columbia have all elected to fund these drugs in their public hospitals. That they have chosen public funding, when Ontario has not, illustrates that no sharp distinctions can be drawn about what is "medically necessary" (and thus publicly funded) and what is not. Ontario's decision has resulted in pressure from patients who want to buy the drugs but have the drugs administered within public hospitals. For safety reasons, these drugs need to be provided in hospital-like settings. Patients who can afford to pay for the drug still find it difficult to access them because there is only one private cancer clinic in Ontario (downtown Toronto). The Ontario government is considering whether or not to allow private-pay drugs to be administered within public hospitals - so that people who can afford to pay for the drugs can access them more readily. We explore Ontario's dilemma in three parts. Firstly, we address how Ontario's statutory context permits or acts as a bar to the sale of drugs in public hospitals. Second, we discuss the myriad of policy concerns government faces in deciding whether to permit the sale of cancer drugs in public hospitals: fairness, equality, sustainability, compassion, safety, and the effects of such a policy on the public system. Finally, given the difficulty in safely obtaining these drugs in a private setting, we address whether the government could be compelled to allow patients access to privately purchased drugs in public hospitals via a successful challenge under s. 7 of the Canadian Charter of Rights and Freedoms.