Card v Alberta (Health), 2014 ABQB 763

Court of Queen ’ s Bench of Alberta Citation: Card v Alberta (Health), 2014 ABQB 763 Date: 20141211 Docket: 1201 13548 Registry: Calgary Between: Sandra Card, Steven Card and Kaitlin Card Applicants - and - Her Majesty the Queen in the Right of Alberta acting as or in the capacity of the Minister of Health and/or the Out-Of-Country Health Services Appeal Panel Respondent _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice M.C.

Erb _______________________________________________________ [ 1 ] This judicial review arises from an Alberta Health Out of Country Health Services (OOCHS) Approval Committee (“the Approval Committee”) decision to deny reimbursement for costs of health services to Kaitlin Card provided in Utah. [ 2 ] The Approval Committee has the statutory responsibility for reviewing, evaluating and determining applications for reimbursement of services provide outside Canada where such services are not available here. It denied reimbursement of Ms. Card’s

expenses on the basis that the services were ‘elective’ requiring prior approval. The application for approval was made about six months after the commencement of the services. The applicants Sandra and Steven Card are Ms. Card’s parents. [ 3 ] There is no dispute that the treatment services Ms. Card required were not available in Canada at the time. [ 4 ] This Application is focussed on a subsequent review of the Approval Committee’s decision by an independent OOCHS Appeal Panel (“the Appeal Panel”) also a creature of statute, specifically its concurrence with the decision that the treatment was elective.

Factual Context [ 5 ] In 2008, at the age of 19, Ms. Card was diagnosed with bulimia nervosa, bipolar disorder, post-traumatic stress disorder and alcohol dependence. Between 2008 and 2010, many efforts were made to assist her with these issues in Alberta. It became apparent that her health issues required a holistic solution with an intensive, structured and focussed approach in residential care. [ 6 ] Ms. Card’s mother aided by her daughter’s family physician searched across Canada for a suitable residential program. They were unable to identify a program equipped to address all of Ms.

Card’s health-related challenges which her family physician recognized as inter-related. [ 7 ] Having determined that the services were not available in Canada, the Card family turned to the United States and found a program at Orem, Utah. The “Center for Change” admitted Ms. Card for inpatient/residential treatment and she attended there from March 15 to July 19, 2010. The Applicants submitted a request for reimbursement of expenses incurred to OOCHS.

The Approval Committee denied the application on September 20, 2010, because the reimbursement application was found to be for elective services which required prior approval. This decision was not appealed and is not the subject of this judicial review. However, it is relevant as part of the narrative leading up to the present issue. [ 8 ] On January 20, 2011, Ms. Card was re-admitted to the Center for Change for further inpatient/residential treatment. She remained there until May 2, 2011. [ 9 ] Between May 4, 2011 and July 22, 2011, Ms.

Card had further treatment as an out-patient at the Center for Change and through the affiliated “New Roads Treatment Program”. During this time, Ms. Card attended University in Orem having dropped out of post-secondary education in Calgary prior to her first admission as a patient to the Center for Change. [ 10 ] On August 29, 2011, Ms. Card was re-admitted to the Center on an inpatient/residential basis. Ms. Card remained there until September 7, 2011, following which date she received follow-up treatment on an outpatient basis. [ 11 ] On July 25, 2011, an application was made on Ms.

Card’s behalf for reimbursement of the expenses incurred in Utah commencing on January, 20, 2011. The Approval Committee denied this second application on March 22, 2012, citing the requirement for prior approval of elective treatment. [ 12 ] Although the application had been submitted on July 25, 2011, the Approval Committee advanced the date of application date to February 14, 2012, when it received all of the supporting documentation from the Applicant.

The Approval Committee allowed reimbursement for services provided from February 14, 2012 to February 13, 2013, on the basis that the case was complicated and it was reasonable that Ms. Card continue her outpatient treatment and follow-up at the Utah facility. The Approval Committee denied reimbursement for services prior to February 14.The Approval Committee found no evidence of an emergency need for the medical services which would have pre-empted the requirement for prior approval. [ 13 ] The Applicants appealed that decision to the OOCHS Appeal Panel which released its decision on July 6, 2012.

The Appeal Panel allowed the appeal in part by recognizing July 25, 2011, as the ‘application date’ rather than February 12, 2012. However, it denied the appeal for coverage of the costs of the Center of Change treatments provided between January 20 and July 25, 2011, on the basis that there was no evidence that emergency medical treatment was required. [ 14 ] Ms. Card’s treatments at the Center for Change after July 25, 2011 have been reimbursed as well as further services because of the ‘complexity’ of Ms.

Card’s case and apparently because of the lack of similar comprehensive services for her within Canada. [ 15 ] It is the Appeal Panel’s July 6, 2012, decision affirming the Approval Committee’s denial of reimbursement dated March 22, 2012 for cost of care between January 20 and July 25, 2011which is the subject of this judicial review. Standard of Review [ 16 ] The first task in proceedings of this nature is to establish the standard of review. The Supreme Court of Canada in Dunsmuir v. New Brunswick , 2008 SCC 9 , 1 SCR 190 established two possible standards of review: “correctness” and “reasonableness”.

In Dunsmuir , the Court reserved the correctness standard for questions of law central to the issue and outside the expertise of the administrative decision maker.

The standard of reasonableness engages an assessment of the degree of deference to be accorded to the decision maker in arriving at a ‘reasonable’ determination. [ 17 ] In Dunsmuir at para. 47 , the meaning of the standard of reasonableness is described this way: Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions.

Tribunals have a margin of appreciation within the range of

acceptable and rational solutions. A court conducting a review for reasonableness inquiries into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process.

But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. [ 18 ] At para. 50 of Dunsmuir, the Supreme Court said this about the correctness standard: ... When applying the correctness standard, a reviewing court will not show deference to the decision maker's reasoning process; it will rather undertake its own analysis of the question.

The analysis will bring the court to decide whether it agrees with the determination of the decision maker; if not, the court will substitute its own view and provide the correct answer. From the outset, the court must ask whether the tribunal's decision was correct. [ 19 ] In Dunsmuir at para. 64 , the Court established four factors to be considered in the standard of review analysis: The analysis must be contextual. As mentioned above, it is dependent on the application of a number of relevant factors, including: (1) the presence or absence of a privative clause; (2) the purpose of the tribunal as determined by

interpretation of enabling legislation; (3) the nature of the question at issue, and; (4) the expertise of the tribunal. In many cases, it will not be necessary to consider all of the factors, as some of them may be determinative in the application of the reasonableness standard in a specific case. and at para 53: Where the question is one of fact, discretion or policy, deference will usually apply automatically ...

We believe that the same standard must apply to the review of questions where the legal and factual issues are intertwined with and cannot be readily separated. [ 20 ] The parties to these proceedings agree that deference to the decision of the administrative tribunal is required in this case. [ 21 ] In consideration of the four factors outlined in Dunsmuir , I agree with counsel that the appropriate standard of review to be applied is ‘reasonableness’.

The decision required the Panel to exercise discretion; the Panel was required to interpret and apply its “home” statute for which there was a particular expertise; the analysis raised no issue of general legal importance that would support application of the standard of correctness. The Legislative Framework [ 22 ] Out of country health services are governed by Regulation 78/2006 of the Alberta Health Care Insurance Act . Applications are first reviewed by an Approval Committee comprised of health care professionals.

Appeals may be made to an independent panel which is required by statute to operate at arm’s length from both the Approval Committee and Alberta Health. [ 23 ] The second tier Appeal Panel reviews the Approval Committee’s written decision and its reasons for the decision pursuant to the regulations. Four of the six members are physicians, one is an ethicist and the sixth is a member of the general public.

The Regulations stipulate that no new evidence may be accepted. for review and the Appeal Panel is restricted to the material that was before the Approval Committee. [ 24 ] Sections 1 and 2 of the Regulations set out the parameters within which the Panel is required to operate and defines the nature of the services: 1(1)(d) “elective” services” means insured services and insured hospital services that are not provided in an emergency or in other circumstances in which medical care is required without delay. 2(1) Subject to subsection (2) and (3), an application may be made to the OOCHSC for approval of the payments of expenses with respect to insured series or insured hospital services received outside of Canada, where the resident or the residents dependant has endeavoured to receive the services in Canada and the services are not Available in Canada.

(2) An application may only be made under subsection (1) with respect to (

a) Elective services, if the application is made prior to receiving the services (emphasis added). [ 25 ] Only emergency services are permitted without advance approval pursuant to the Act and its regulations. Position of the Applicants [ 26 ] The Applicants submit that the information provided to the Appeal Panel (and the Approval Committee by implication) disclosed that the care required was for emergency health services and should be subject to reimbursement. They submit that Ms. Card’s condition placed her life and future health in peril unless her mental and physical issues received immediate attention.

They also submit that the Appeal Panel refused or failed to consider those circumstances and the extensive medical information provided by the Center for Change and others. [ 27 ] The Applicant’s also assert that the Appeal Panel’s reasons were inadequate and there is no indication that the Approval Committee or Appeal Panel undertook any independent analysis of Ms. Card’s condition and the importance of immediate treatment. Rather, the Appeal Panel relied on the ‘normal’ blood test results taken in January 2011.

They also submit that the reasons fail to disclose any understanding why the request for reimbursement was denied. [ 28 ] The Applicants also note that the Panel provided no logical reason why ‘partial coverage’ was allowed. The Appeal Panel set

the application date at July 2011 when the application was first made rather than February 2012 when all the material required was provided, as the Approval Committee had determined. [ 29 ] They also submit that the Approval Committee denied natural justice to them by taking an inordinate and unexplained length of time to make its decision and the Panel was aware that it took inappropriately long.

Position of the Respondent [ 30 ] The Respondent submits that the Appeal Panel’s decision in accordance with Dunsmuir is not reviewable where it falls within a “range of possible, acceptable outcomes” which are defensible in fact and law. [ 31 ] The Respondent further submits that the Appeal Panel’s reasons read and considered in the context of the evidence before it, the statutory process and the outcome are adequate and require the deference of the Court. It further states that the submission, including medical assessments and other information, was reviewed in a fair and equitable manner.

They deny failing to accord the Applicant’s natural justice and procedural fairness as alleged. [ 32 ] In response to the Appellant’s submission that there was no indication in the Appeal Panels reasons that it conducted an independent analysis or investigation, the Respondent’ relies on the Regulations which deny the Appeal Panel the right to do so.

Rather, the Appeal Panel is restricted to a review of the written decision, the reasons issued in support and the materials before the OOCHSC. [ 33 ] On the matter of delay, the Respondent notes that this complaint was not made in the Originating Application or the Notice of Appeal and in any event the time between the date the Approval Committee received the materials and the date of decision was not inordinate. The Approval Committee Decision [ 34 ] The OOCHS Approval Committee reviewed the application for coverage on March 14, 2012 and issued its decision on March 22, 2012.

It denied coverage prior to the date the application was completed on February 14, 2012, (the application date) but allowed it thereafter. The application was first submitted without the full supporting material on July 25, 2011.The Approval Committee agreed that the services provided at the Center for Change were not available in Canada. It denied funding prior to the application date for the following reason as stated in the written decision: Following a thorough review of the documentation provided, the OOCHS concluded that the requested services were elective and prior approval should have been obtained. Ms.

Card’s January 2011 blood test results, relevant to this funding application are considered within normal ranges. No evidence was provided of any emergency or other circumstances in which medical care was required without delay. [ 35 ] The balance of the five-page decision refers to the material reviewed without specifically referencing it or providing commentary. The Applicant’s medical history is outlined in brief and the statutory framework is set out with reference to the definition offered in s. 1(1) (

d) of “elective services” and the requirement under s 2(2)(

a) for prior approval. The Appeal Panel’s Decision [ 36 ] The Panel partially granted the appeal by setting the “application date” at July 25, 2011, the day the application was submitted first to OOCHSC rather than the date when the material in support was fully acquired. This provided several months of additional coverage beyond what the Approval Committee had decided. [ 37 ] In its decision, the Appeal Panel recited in brief the context of the appeal before it, the statutory requirements, the identities of the participants.

It noted that it considered the information that was available to the OOCHS Approval Committee at the time that decision was made, the reasons provided and the Applicants’ letter of appeal. The Appeal Panel agreed that “the services were elective, therefore prior approval should have been obtained for services prior to July 25, 2011, which is when you submitted your application.” [ 38 ] The decision is set out in a letter format and offers no analysis of the material reviewed other than stating that it conducted a “careful consideration”.

It did not list the materials reviewed but did confirm the Appeal Panel considered the same materials before the Approval Committee. Sufficiency of Reasons [ 39 ] The Applicants criticized the decision because the Appeal Panel did not engage in independent analysis. However, the Appeal Panel is prohibited by the legislation from conducting its own investigation. It must review the Approval Committee decision based on the certified record before it amassed at the Approval Committee level.

The Certified Record was placed before this Court and comprises three volumes of material which include the application brought in July 2011 as well as the previous application for coverage of treatment provided at the Center for Change in 2010. [ 40 ] The Supreme Court of Canada reviewed the issue of sufficiency of reasons of an administrative tribunal in Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board) 2011 SCC 62 . The following principles arose from the Supreme Court of Canada’s clarification of the issue:

i.) Adequacy of reasons is not a stand-alone basis for quashing a decision; ii.) A reviewing court may not undertake two discrete analyses - one for the reasons and one for the result. . .must consider the decision and reasons together in determining whether the decision falls within a range of possible, acceptable outcomes; iii.) Alleged deficiencies or flaws in the reasons do not fall under the category of a breach of the duty of procedural fairness.

Any challenge to the reasoning or result of the decision should be made within the reasonable analysis; iv.) Reasons need not include all the arguments or details the reviewing judge would have preferred, but that does not impugn the validity of either the reasons or the result under a reasonable analysis; v.) If the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes, the Dunsmuir criteria are met.

Application of the Standard of Review and Conclusion [ 41 ] In applying the standard of review of reasonableness, this Court must give deference to the decision of the Appeal Panel. The decision was contained in a three-page letter dated July 6, 2012. The decision contained effectively a terse statement that it considered the information available to OOCHS at the time of the Approval Committee decision, the reasons given and the contents of the Applicant’s letter of appeal.

There is a statement that the Appeal Panel reached its decision “based on an evaluation of all of the evidence presented”. [ 42 ] While the reasons for the decision could have been more expansive, it is clear that the Appeal Panel agreed with the reason provided by the Approval Committee that there was a lack of evidence of emergency needs and the fact that her blood test results were normal. The medical and related information other than Ms.

Card’s family doctor’s reference to the longer-term effects, specifically that her medical problems “could be fatal if untreated” focuses on care provided at the Center for Change. There was no explanation or insight offered about the decision to seek out of country care again without prior approval other than family frustration and concern. It may have been helpful to know what had transpired between the date treatment was completed in July 2010 and the date of Ms.

Card’s return in January 2011. [ 43 ] There was no suggestion that if a mental health issue had emerged that an immediate remedy for that was not available in Canada. [ 44 ] The Applicants were aware that out of country services required prior approval from their own experience in 2010. There was no evidence that the circumstance had evolved differently in early 2011. While there is no dispute that Ms.

Card’s treatment in Utah was critical to her long- term success in overcoming her many challenges, there was an absence of evidence that she was in an emergency situation when she attended the Center for Change in January 2011 and seeking reimbursement some six months later. [ 45 ] The intention of the legislation from a public policy perspective is obviously to ensure that controls are maintained on out of country care. Rules have been established which are reasonable and in the public interest.

Conclusion [ 46 ] I find that the Appeal Panel could and should have better articulated how the Approval Committee’s decision and the materials in support of the application were analyzed how it arrived at its decision. However, the reasons are clear -- the blood tests were normal and there was no evidence of an emergency need. The reasons are terse but not such that a reasonable person would not be able to understand why the decision was made. [ 47 ] The Appeal Panel has no authority to undertake an independent investigation or to hear new evidence or materials.

It must review the Approval Committee’s decision on the basis of what was before it at the time it made its decision. [ 48 ] The Applicant’s criticism that the decision to partially allow the appeal was lacking in logic is not accepted by this Court. The decision to allow the Applicants time to amass the material they wished to submit without penalty is quite logical and fair. [ 49 ] However, the evidence did not support a finding that emergency treatment was required.

This Court agrees with the comment of Counsel for the Respondent that the OOCHS legislative regime is not set up for patients to “seek and apply”, rather, it is set up for “apply and seek” except in emergency situations. [ 50 ] In consideration of all of the submissions made in these proceedings, and a review of the materials before both the Approval Committee and the Appeal Panel, I find that the decision under review is within the range of possible, acceptable outcomes which are defensible in fact and law. [ 51 ] Accordingly, the application is dismissed. Heard on the 22 nd day of October, 2014.

Dated at the City of Calgary, Alberta this 11 th day of December, 2014.

M.C. Erb J.C.Q.B.A. Appearances: Leonard Zalapski, QC for the Applicants Michael A. Waite for the Respondent