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Health law collisions: immigration law

By Kate Dewhirst

Health law is a discipline that focuses on the legal issues in health care, on representing the interests of recipients of health services or health care providers or the health sector and its businesses and goods and service providers, or government and its policymakers.

What I love about health law is that the issues matter to all of us.

Health law touches on our most important choices and rights as humans. Health care is one of the most regulated industries with highly specialized legislation and oversight. Health care spending made up almost 40 per cent of tax dollars in Ontario in fiscal 2016-17. The Canadian Institute for Health Information concluded that Canada would spend $242 billion on health care in 2017 or 11.5 per cent of our national gross domestic product. Health care businesses are some of our biggest landholders, companies and employers.

When I was in law school at Dalhousie University, my favourite professor, Jocelyn Downie, said to me: “We could teach almost the entire law school curriculum through a health lens.” Think about that. Health law intersects with almost every practice of law in some way: tax, environmental issues, litigation, corporate law, real estate, constitutional law, human rights, international law. The list goes on and on.

Which brings me to this series: Health Law Collisions. In this series – I will show you the breadth and depth of how health collides with other disciplines of law.

Immigration law

In this blog, health law collides with immigration law.

When health and immigration laws collide, we need to discuss privilege, power, vulnerable human populations and public policy decisions that can escalate polite conversation into heated arguments between otherwise close friends.

Here are some of the ways in which health and immigration issues collide:

Who’s who?

Only certain individuals in Canada are entitled to publicly-funded health benefits and others are not. For immigration status purposes, there are four primary categories of individuals in Canada: (1) citizens; (2) permanent residents; (3) those with protected status; and (4) foreign nationals.

Depending on someone’s status, they may be entitled to health care coverage through our insured health systems at different times and through different application processes or not at all.

Provincial health insurance coverage (such as the Ontario Health Insurance Plan – OHIP) kicks in for citizens and permanent residents sometimes after a waiting period and steps must be taken to maintain the coverage. The Interim Federal Health Program offers medical insurance coverage for people who have made a refugee claim. Foreign nationals have to pay for their own health insurance while traveling in Canada or pay for health services directly if needed.

Health care professional assistance with immigration claims and applications 

Immigration lawyers acting for individuals making claims in Canada benefit from working closely with their clients’ health care providers. Having accurate information about a claimant’s health conditions and how Canada health services can meet those needs can make or break a claim. Immigration lawyers need to cultivate positive relationships with medical and other health professionals to explain the process and the documentation needed to assist their clients.

I get asked by clients what information should be provided to legal counsel or immigration officials for these purposes. I also deal with issues of whether clinicians should write letters on behalf of patients in immigration matters and when such efforts are justified and when they cross over into inappropriate advocacy efforts or could expose the clinician to professional criticism.

Medical inadmissibility

One’s health status can become a barrier to entry to Canada. There are three health conditions that render someone medically inadmissible to Canada:

  1. A health condition that is likely to be a danger to the public (such as a communicable disease)
  2. A health condition that is likely to be a danger to public safety (such as a tendency towards violence)
  3. A health condition that could reasonably be expected to cause excessive demand on health or social services within the next five to 10 years

Ethical questions

Want to perk up your dinner conversation? This is rich space for ethical quandaries. Think about asking yourself and your family, friends and colleagues:

  • Should individuals who have terminal illnesses be inadmissible to Canada?
  • Is it ethical to offer health screening services to individuals living in Canada without health insurance for health conditions when it is known they will not be able to afford treatment if it is discovered they have such a condition?
  • What information should be shared by health care providers with immigration officials?
  • Should Canadian citizens ever lose their provincial health insurance coverage? For example, if they travel too many days per year outside Canada?

Ok. It’s possible you’ll be eating alone if you start these conversations – but they are interesting issues!

Training for Health Teams 

As a training program for health care teams, I recently co-developed a presentation on Immigration 101 with Jacqueline Swaisland, one of our shining stars in Canadian immigration law (disclosure: we are cousins). This may be of particular interest to Community Health Centres and other health teams whose services focus on new Canadians and non-citizen family members of Canadians. We can help you understand the immigration legal landscape. Contact me for more information.

Read More at Kate Dewhirst Health Law Blog

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