On February 25th, 2013, CARL launched major litigation to challenge the legality of recent cuts to health care coverage for refugee claimants.

This legal challenge comes in response to the federal government’s issue of an Order in Council in April 2012, to drastically cut benefits to refugee claimants. The changes were made without advance notice and without consultations. It asks the court to declare the health cuts to refugee claimants are both unconstitutional and illegal.

 

The Interim Federal Health Program (IFHP) was introduced in June 1957 to provide temporary health, vision and dental insurance to all refugee claimants and resettled refugees, up until the time they were either accepted as refugees and were eligible for provincial health care, or if not accepted, until they had exhausted their legal options to remain in Canada. Refugee claimants have received some type of interim federal health insurance coverage since 1957. The health coverage was similar to coverage received by Canadians on certain social assistance programs like the Ontario Disability Support Program.

The program remained unchanged from 1957 until April 2012, when the federal government issued an Order in Council to drastically cut benefits to refugee claimants. The changes were made without advance notice and without consultations. The cuts came into effect on June 30, 2012.

The changes to the IFHP are important for several reasons:

  • The changes introduced five different categories of coverage resulting in confusion for both claimants and health care providers.

  • The changes will result in a significant downloading of costs onto the provinces and onto individual physicians who provide certain emergency services free of charge.

  • Cutting preventative and primary health care is poor health policy that threatens public safety and will likely increases costs to taxpayers.

  • The new IFH rules leave some claimants with no coverage at all, such as those from countries designated “safe” (including urgent care, unless there is a public health or safety concern).

  • Psychological support services are no longer available; including for survivors of torture, rape, or other violence, except where public safety is an issue.

  • Unsuccessful claimants only have access to medical care if their conditions is a risk to public health or security; this includes those who cannot be removed due to a government issued moratorium on removal to their country of origin (ex. Afghanistan).

  • The cuts to health services for refugees – some of whom will have just escaped war, violence, or famine – are unjust and counter to Canada’s long history of compassion and openness.

On February 25, 2013 CARL and Canadian Doctors for Refugee Care (CDRC) filed documents with the Federal Court on behalf of three patients that have been denied critical health care since the IFHP changes in June 2012. The challenge asks the court to declare the health cuts to refugee claimants are both unconstitutional and illegal.

Read below for information on this litigation and relevant media releases.

A legal challenge has been launched in the Federal Court of Canada, arguing that the federal government’s cuts to refugee health care are unconstitutional, and in breach of Canada’s obligations under international law.

Canada has a long tradition of providing basic health coverage to refugees

The Interim Federal Health Care Program, a federal insurance program, has historically provided temporary health, vision and dental insurance to all refugee claimants and resettled refugees, up until the time they were either accepted as refugees and were eligible for provincial health care, or if not accepted, until they had exhausted their legal options to remain in Canada. Refugee claimants have received some type of interim federal health insurance coverage since 1957.

Cuts eliminate most federal healthcare benefits for refugees—even if they are children

On April 5, 2012 the federal government passed an Order-in-Council to make drastic cuts to the health benefits paid by the federal government to refugee claimants. These changes were made without advance notice or consultation with the provinces or health and immigration stakeholders. The cuts came into effect on June 30, 2012, including the following:

  • Refugee claimants have coverage for medical services, but no longer have federal coverage for vision care, dental care or prescription medications—even life-sustaining ones such as insulin. This rule even applies temporarily to privately sponsored refugees—people who Canada recognizes as being in need of protection.

Examples:

A child refugee claimant with a heart condition awaiting his hearing develops a dental abscess. The infection can spread to his heart, yet he is unable to receive dental care while awaiting the outcome of his family’s hearing.

A refugee claimant is diagnosed with cancer after he arrives in Canada but before his claim has been decided. He can see a doctor but has no insurance to cover the costs of his chemotherapy or medication.

  • Refugees from countries that the Minister has designated as safe (“Designated Country of Origin” or “DCO”), such as Mexico and Hungary, as of Dec. 15, 2012 receive no medical care at all, unless their condition poses a public health risk or security concern for Canadians.

Example:

A woman who is five months pregnant flees her abusive partner in Mexico. As Mexico has been designated as a so-called “safe” country, this woman will not only have no access to any prenatal care, she will also not have health coverage for the delivery of her child, or postnatal care.

  • Refugee claimants whose claims have been rejected can only obtain medical care where their condition poses a public health or security concern. Even where the person cannot be removed from Canada, due to a government-issued moratorium on removals to particularly dangerous countries like Afghanistan or Iraq, she or he has virtually no health coverage despite being able to work legally in Canada.

Example:

A refused refugee claimant from Afghanistan cannot be returned to Afghanistan, given that there has been a moratorium on all removals to Afghanistan since 1994. He is able to obtain a work permit so that he can support himself while his immigration status is in limbo. If he has a heart attack, as a refused refugee claimant, he is not entitled to health coverage for treatment or for necessary medications.

Cuts to refugee healthcare have significant impacts

The changes to the healthcare coverage for refugee claimants are significant for a number of reasons:

  • This is a dramatic cut to the basic level of health coverage to some of the most marginalized and vulnerable people in Canada (sometimes, a claimant’s health problems are directly related to the persecution they suffered in their home country);
  • People are likely to suffer significant health risks under this new policy;
  • Refugees have had federal health insurance coverage for 55 years; these cuts mark a major shift in Canada’s tradition of universal health care and its humanitarian treatment of refugees;
  • The changes were imposed without consulting provinces, the public or direct stakeholders;
  • The changes will result in a significant downloading of costs onto the provinces and onto individual physicians who provide certain emergency services free of charge;
  • The complexity of the changes, coupled with the lack of consultation, have made it difficult for the medical community to understand the cuts, and to accurately inform patients about their coverage;
  • The average annual cost of the IFHP was about $552 per refugee claimant;
  • Ironically, the cuts may well increase government health costs in the long run as emergency care generally costs much more than the preventive care which is being eliminated.

Legal challenge alleges refugee health care cuts are unconstitutional

The legal challenge is being filed at the Federal Court of Canada on behalf of three patients who have had critical health care denied to them since the government cut health care coverage for refugees in June of 2012. The cuts to refugee health care are also being challenged by two public interest groups who bring additional expertise and resources to the fight: Canadian Doctors for Refugee Care, a group of doctors who treat refugees across the country, and the Canadian Association of Refugee Lawyers, a national organization of lawyers and academics who are concerned with refugee law and policy.

The challenge argues that the cuts to refugee health care violate the fundamental human rights of refugees, as protected by the Canadian Charter of Rights and Freedoms, without any lawful justification.

The cuts threaten the rights to life and security of the person in section 7 of the Charter.

The Supreme Court of Canada has already made clear in the Chaoulli decision that denying medical care can increase the risk of medical complications and cause severe psychological stress that threaten the security of the person and can even lead to death, in violation of section 7. The government has not clarified its reasons for these cuts. Assuming that the goal of the cuts is to discourage fraudulent refugee claims, there is no evidence that these cuts will have that result. Accordingly, the government’s decision to cut health care benefits is arbitrary and unjustified.

The cuts amount to cruel and unusual treatment, contrary to section 12 of the Charter.

These cuts reduce or deny basic and life-sustaining health coverage for refugee claimants, likely causing significant and unnecessary pain and suffering to refugee claimants. The changes to the refugee health care coverage are inconsistent with international practice; numerous European countries provide more comprehensive healthcare coverage to refugee claimants than Canada.

The cuts discriminate against refugees from certain countries, and discriminate against people based on their immigration status, contrary to section 15 of the Charter.

For the first time, the type of health care coverage provided to a refugee depends on their country of origin. The federal government’s changes to refugee health care insurance deny medical assistance to people from certain countries, such as Mexico and Hungary, which have been designated as safe by the Minister, while providing care to refugees from other countries. The cuts to refugee health care also discriminate on the basis of immigration status by denying basic health care to individuals residing in Canada on the grounds that they are seeking refugee protection.

The cuts are inconsistent with Canada’s international law obligations.

Under the Convention on the Rights of the Child and the Convention Relating the Status of Refugees, Canada is obliged to provide basic health care for refugees and children. The cuts do not comply with those obligations.

Patients denied medical care and medications under the Interim Federal Health Program

All patients on this list are refugee claimants or refused claimants who were denied medical care or medication under the Interim Federal Health Program (IFHP) after it was radically reduced on June 30, 2012. These are individual patient stories. They are succinct accounts recorded by doctors across Canada to give Canadians specific accounts of the human suffering caused by the removal of federal medical funding for refugee claimants. Most patients are not identified to protect their privacy. None are available for personal interviews.

Applicants to the Federal Court application

1. Ahmad Abdorrahman Awatt, a Kurd from Iraq, suffers from Wilson Disease, a genetic disorder that prevents the body from getting rid of extra copper. In Wilson disease, copper builds up in the liver, brain, eyes, and other organs. Over time, high copper levels can cause life-threatening organ damage. As a result, Mr. Awatt is in need of constant blood and urine examinations, as well as monthly ultra-sounds of his liver. As a rejected refugee claimant, he lost coverage for urgent and essential care, although he remains on a moratorium list and cannot be removed from Canada. His speech impediment entitles him to Ontario disability coverage for his numerous medications but he has no coverage for the tests or specialist visits he most urgently needs for his Wilson disease. Mr. Awatt is a minimum wage, occasional laborer and cannot afford to pay for these medical services. He lives with a constant threat to his life and health as well as considerable psychological stress.

2. Daniel Andres Garcia Rodrigues, a refused refugee claimant from Colombia was refused an operation to repair a retinal detachment. He could not afford the large fee for the operation. As his sight was in direct jeopardy, his doctor wrote to the respondent’s medical service explaining the urgency of his situation and requesting help. On August 17, 2012 the doctor was told that no IFHP coverage would be available, since he was now classified as a rejected refugee claimant although his wife has been accepted as a refugee and is sponsoring him. He has a work permit and is paying taxes. On August 20, 2012, Daniel’s doctor agreed to perform the eye surgery at a fraction of the cost. Further delay could have resulted in Daniel losing his vision. The withdrawal of IFHP coverage put Daniel’s vision at risk and caused him considerable psychological stress as he faced the prospect of no longer being able to support his family due to blindness and his inability to pay for the sight-saving surgery.

3. Hanif Ayubi has had type 1 diabetes since the age of 10. He came to Canada as a refugee from Afghanistan in April, 2001 in order to escape forced conscription by the Taliban and the imposition of Sharia law. His claim was rejected but he has remained on a removals moratorium list since 1994. Since June 30, 2012 he has been denied insulin and medical care under the IFHP since he is no longer eligible for urgent and essential care (“health care coverage”). He is unable to access the necessary blood tests he needs to monitor his diabetes. He is being kept alive on free samples of insulin from a community medical clinic in Ottawa. He has a work permit and has been paying taxes, but does not earn enough to cover the cost of medication and diagnostics. His health has been put at risk and his situation has been extremely worrisome for him.

Case Histories of patients denied medical care under IFHP

Patient 1: a refugee claimant arrived in Saskatoon in the fall of 2012 after fleeing a Middle Eastern country where he was persecuted for being Christian. Soon after arriving, he began having abdominal pain and was diagnosed with cancer. The IFHP no longer covered the costs of chemo-therapy medications. As he could not afford to pay for these medications, they were ultimately provided by a hospital pharmacy after church groups advocated on his behalf.

Patient 2: A 76 year old failed refugee claimant from Sri Lanka was undergoing chemotherapy for bladder cancer when his IFHP was cancelled. He also requires numerous prescription medications for diabetes mellitus, hypertension, aortic valve endocarditis, anemia, and must take intravenous antibiotics regularly. For now, his doctors are providing care free of charge, but he has to beg family members for the $600 needed each month to cover the costs of life sustaining medications.

Patient 3: A failed refugee claimant from Mexico living in Red Deer, Alberta was diagnosed with testicular cancer in October 2012. He has no IFHP coverage for his hospital treatments. Two doctors in Red Deer donated their time to perform surgery on him but he needs chemotherapy and radiation therapy medications which are also not covered.

Patient 4: A failed refugee claimant from Libya who has been in Canada for about 25 years due to the fact that Libya had been on a moratorium list had his right leg amputated below the knee in the fall of 2012 due to infection, likely related to diabetes. The infection is continuing and is now in the bone. The hospital needs payment for the operation and he cannot go to rehab to be fitted for prosthesis without IFH coverage.

Patient 5: a stateless HIV-positive woman who had been a victim of human trafficking and who had abandoned her refugee claim due to poor legal advice did not have access even to Public Health and Public Safety IFH coverage after July 1, 2012. She therefore posed an unresolved threat to public safety because HIV-AIDS is considered a contagious disease.

Patient 6: An elderly man from Cuba lost his refugee claim but has serious mental health issues and will no longer be covered for treatment or medication.

Patient 7: In early July 2012, a young 24 year old women in Canada for 4 years, 35 weeks pregnant, arrived at a free refugee health care clinic crying, with severe abdominal pain. Her obstetrician told her she was required to pay $130.00 for a visit because her IFH coverage had been cancelled. She stayed at home with her pain, unable to pay the $130, but eventually was examined at the free clinic.

Patient 8: In early July, 2012 a 61 year old gentleman residing in a refugee shelter ran out of his 12 heart medications. Since his IFH coverage had expired, he could no longer afford medication renewals or doctor’s visits. He was suffering from heart failure and atrial fibrillation. He arrived at a free clinic sweating profusely and frightened.

Patient 9: A rejected refugee claimant became ill with a common, treatable condition. As he had had no IFH coverage since July 1, 2012 and could not afford a doctor’s visit, by December 2012, his condition had reached a life threatening level. He had to be sent to the hospital.

Patient 10: In late July, 2012 a six year old child awaiting his refugee hearing with his parents developed a dental abscess. He had had open heart surgery when he was 15 days old and required pediatric cardiology follow up. However, his parents’ IFH dental care coverage had been cancelled as of July 1, 2012, which posed a serious health risk since the abscess could infect his heart. His family doctor was requesting payment before continuing any care.

Patient 11: In late July 2012, a 42 year old refugee claimant from Africa who had been beaten and left for dead in the street and who was suffering from chronic severe abdominal pain as a result was dropped by her physician once her IFH coverage was cancelled and she was unable to afford the fees.

Patient 12: Three weeks after his IFH coverage was revoked, a rejected refugee suffering from sickle cell anemia developed recurring leg ulcers due to lack of affordable regular medical follow-up.

Patient 13: On July 31, 2012 a four year old refugee claimant child from Iran came to a free medical clinic crying and in severe pain from an ear-infection that had gone untreated because her parents could not afford to pay their doctor once their IFH coverage was cancelled.

Patient 14: A refugee claimant from Iran with cancelled IFH coverage could not afford hospital treatment for her broken foot for one week. She arrived at a free clinic limping badly on July 31, 2012.

Patient 15: In August, 2012 a claimant who was 7 months pregnant was in a panic and desperate after her IFH coverage was cancelled as she could not afford doctor’s fees for pre-natal care or delivery. She was referred to a volunteer midwife and told to report to the emergency room when she went into labour.

Patient 16: An 8 year old rejected refugee claimant from Africa who suffers from asthma begins coughing and wheezing more severely because he and his mother can no longer afford medical care after their IFH coverage is revoked (September 2012).

Patient 18: A male refugee claimant experiencing chest pain and having characteristics that makes his physician suspicious of tuberculosis is not eligible for a chest x-ray.

Patient 19: A female accepted refugee with asthma has an avoidable emergency room visit and hospitalization because of a lack of medication.

Patient 20: A female refugee claimant with fibroids and adenomyosis has surgery cancelled due to her IFH status. As a result, the patient has numerous emergency room visits and doctor’s office visits for severe pain.

Patient 21: A male refugee claimant with expired IFH coverage has three children, two requiring immunizations and a third requiring follow-up on an operation on his aorta at birth. They were turned away from two clinics and unable to see a physician.

Patient 22: A female refugee claimant who is a senior with diabetes and chronic kidney disease sees her condition deteriorate because of lack of access to medication, regular blood testing and monitoring, and dietician education.

Patient 23: A refugee claimant who is a mother of two is unable to seek treatment for high blood pressure after June 30, 2012.

Patient 24: A refugee claimant, 32 weeks pregnant, presents at two emergency rooms suffering from lower abdominal pain. On both occasions she is told that she would have to sign a document stating that she would be responsible for the costs of her visit. She leaves the emergency room on both occasions without being seen.

Patient 25: A man admitted to hospital with congestive heart failure and 12 other medical conditions is discharged home without the necessary home care follow up, placing him at a much higher risk of readmission.

III Refugee Claimants who are eligible for IFHP benefits but are still denied medical care

The sudden and arbitrary revocation of medical service under the IFHP has caused confusion within the medical community as to who is covered under the IFHP and who is not. Some IFHP-entitled refugee claimants have been mistakenly refused medical care due to perceived IFHP ineligibility by doctors, or delays in the processing of the newly complex IFHP applications by Citizen and Immigration Canada. Here is a sample of these types of cases as catalogued by physicians working with refugee-patients, including Canadian Doctors for Refugee Care:

Patient 26: In September, 2012 a 12-month old baby whose mother was awaiting her refugee hearing was suffering from a fever and had not been eating properly for a month. Their doctor was charging for treatment based on a perceived lack of IFH coverage. The baby had infections in both ears, infected tonsils and was in considerable discomfort.

Patient 27: A woman fled her country despite the fact that she was 33 weeks pregnant in order to save her 13 year old daughter from female genital mutilation. Likely as a result of the complex new eligibility system, issuance of her IFH coverage document was delayed until after her expected delivery date and she faced the prospect of having to pay for pre-natal care and hospital services she could not afford.

Patient 28: In November, 2012 a child refugee claimant with a cleft lip and palate that had become infected was denied care by a doctor despite the fact that he had valid IFH coverage.

Patient 29: A 28 year old pregnant diabetic claimant with a history of miscarriage and high blood pressure with valid IFH coverage was refused medical care by a family doctor due to a perceived lack of coverage.

Patient 30: A young child from Africa with a high fever but had no health insurance because his IFHP had not been activated.

Patient 31: A woman in her third trimester of pregnancy develops pre-eclampsia, a potentially lethal disease, but has no coverage to treat her condition.

Patient 32: A man with a rectal mass is turned away from care a multitude of times although he should have IFHP health insurance.

Patient 33: A young child from Africa could not get a chest X-ray after her IFHP was issued but there was a delay in its implementation. She eventually was found to have pneumonia.

Patients 34 and 35: Two young children with multiple hospitalizations for asthma cannot get access to their inhalers leaving them at risk for seeking out care through emergency departments.

Patient 36: A teenager with Post Traumatic Stress Disorder and previous suicide attempts who has valid IFHP coverage is cut off from essential psychiatric medications;

Patient 37: A young girl from an area with malaria has a high fever but does not have health coverage to rule out malaria as she awaits her IFHP coverage to be initiated.

Patient 38: A privately sponsored refugee arrived in October 2012 suffering from serious abdominal pain and needing to see a gynecologist. A community health centre refused to refer her to a specialist based on the false perception that she was not entitled to IFHP coverage. She suffered in pain for several months until a lawyer clarified her situation and informed the group-sponsors of her eligibility.

Media Releases