BC and Drug Coverage

Fair Pharmacare
I recently did some analysis of the BC health care coverage for prescription medications for treating HIV. To my surprise, it would appear that none of them are covered under the provincial prescription drug plan.

Why did I find this surprising?  Because this is the very basis of the decision by CIC to refuse my original application.  But the teensy detail they failed to mention (and I hadn’t fully grasped) is that in order to obtain “free” medications in British Columbia you must enroll in the grand medical/social experiment.  In doing so your detailed medical information is provided to the Centre for Excellence for whatever use they deem.

Further, as it turns out, the Centre for Excellence maintains a strict policy with respect to treatment options.  So if your doctor thinks you would be better served by a different treatment option than the ones permitted she probably won’t even mention it to you because she knows it won’t be permitted by this group.

Thus, gaining access to this “free treatment” isn’t part of the health care policy, but rather it is in exchange for agreeing to be a guinea pig in this large medical experiment.  It seems to be a harsh basis for a refusal simply because there is a research group that will permit you to trade your medical privacy (so they can obtain something of value from it) in exchange for “free medication”.   That sure looks more like the normal arrangement for medical experiments.

Thus, it would seem that CIC’s position is that if there’s someone out there that obtains governmental funding for doing research and you might be willing to exchange something of value (your right to the best treatment option for you specifically and your medical privacy rights) for something that might also be helpful to you, then you’re just ineligible to come to Canada in an economic class – well, at least for British Columbia.

I wish I had known about the nuances of how the system worked several years ago, because this would have been a rather interesting conversation: anyone who doesn’t want to participate in the experimental study group has no coverage.  None of the drugs I checked were covered by Fair Pharmacare, which means they don’t count against the cost limit ($10k maximum, lower amounts based on income).  Thus, they cannot create excessive demand.

And if someone does wish to participate in the experimental study group they can do so – but it’s a standard commercial exchange.  The study group does receive governmental funding, but those funds are used as a quid-pro-quo for something else of value.


Schedule F: The Chain Link Fence to Keep Sick People Out of Canada

Permanent Resident CardI recently was discussing the issue of the cost of drugs inside versus outside Canada. One of the side-effects of the strong controls present in the Canadian system is that it forms a fence around Canada further making immigration for someone with a medical condition challenging.  This is because of the way the existing law is written.

The cost of certain drugs is much lower outside Canada.  While we can discuss the relative merits of this, such as this recent Forbes article or this recent book on the topic, the bottom line is that the cost of drugs in Canada is high – in some cases as much as 10x higher than the same drugs are from a reputable manufacturer (Cipla, Teva, etc.) in a different country, such as India, where patent rights differ.  One thing that makes this even more difficult in Canada is the blanket prohibition of the importation of certain drugs, currently on a list known as Schedule F, though this is in the process of being replaced by a similar scheme that makes it easier for Health Canada to manage the list.

The purpose of the list, however, is to prohibit the importation of certain drugs into Canada unless one is a doctor, a pharmacist or a hospital.  A patient may bring in a 90 day supply for personal use – but that doesn’t allow the drugs to be shipped.

So, how does one get around this?  Well there are a few options:

  • You can find a sympathetic doctor willing to receive the medications – essentially to serve as the “importer”.  This can be tricky, as some doctors are not willing to accept the potential liability of these non-Canadian approved drugs.  Still, some doctors are a bit more sympathetic.  It can be difficult to find such a doctor. One good thing about the new regulations is that they would extend the importation ability to anyone with the legal right to prescribe in the province.  Here in BC, for example, naturopathic doctors have prescription rights for many things and thus would be allowed to import drugs in some of these cases.  That increases the potential pool of doctors willing to assist.
  • You can arrange for delivery to the US border and then pick up a 90 day supply every three months.  Services like Kinek charge a modest fee for receiving a package for you in the US.  The US has an exception to the importation ban when the drugs are for personal use, which makes it easier to import them into the US.  Then you can bring them into Canada under the 90 day personal use exception.
  • You can try to find a Canadian pharmacy willing to sell the drugs to you.  For example, here in BC there’s a pharmacy in Surrey (Blue Sky Drugs) that indicates they will ship to Canadian addresses; whether this constitutes importation by a Canadian pharmacy or not is something that I will admit is definitely not clear.
  • You can “take your chances”.  This is what people who don’t have to worry about immigration do.  In my experience these services will reship anything that doesn’t arrive.  This is definitely a grey area, as they are exploiting the fact that CBSA cannot police every package and thus only a small fraction are actually seized.

For someone trying to convince CIC that they have a credible plan this situation can be problematic: some officers at CIC know about Schedule F and can use it as a means to refuse someone from being granted permission to immigrate.  In that case the best thing is to find a sympathetic doctor willing to allow shipments of the meds to them.  The doctor might be more willing if they know the drugs are coming from a foreign charity (NGO) rather than an internet pharmacy;  the patient may need to sign a written release indemnifying the doctor in case the drugs provided are ineffective or contaminated – after all, the doctor has no way of being able to verify the veracity of the drugs any more than the patient.  Were I trying to come to Canada and had a foreign NGO willing to provide me with expensive (or overpriced – depends upon your perspective) drugs, I’d be happy to indemnify a doctor willing to help me get into Canada in the first place!

Of course some types of drugs are worse than others.  In January 2013, Gilead reported they had a 76% profit margin.  AIDS Healthcare Foundation has been calling for moderation of their prices, but at the present time that’s the way the system works – the laws protect the companies’ profits not the health and well being of the actual patients.  For those wishing to immigrate to Canada this creates a real barrier to entry.

Canada in turn only looks at a few diseases very closely.  I personally know of people with heart conditions (requiring multiple surgeries and hospital stays after coming to Canada) who disclosed their conditions but were not subjected to the “excessive demand” fire drill.  But this is what the Canadian public has decided to do.  Immigration is always fraught with this sort of problem – a deep-seated xenophobia.  That’s hardly unique to Canada, sadly.

Happy (belated) Anniversary!

First AnniversaryI meant to finish this up yesterday, but somehow the time just simply got away from me.

December 22, 2011 was the date upon which Ms. Marlene Edmond of the Citizenship and Immigration Canada visa office in New York City, NY, USA officially rejected my application for permanent residency.

Thus, on this the first anniversary date (plus one) of the rejection I am looking back.  Things have changed dramatically in the past year.

When she has to refuse an application I wonder if she worries if she has made a mistake.  Perhaps in a case such as mine she doesn’t – though the subsequent events suggest to me that in fact the rejection – or at least the procedure leading up to that rejection – was a mistake.  I have no idea if such cases are ever reviewed internally at CIC to see if they are actually “doing things correctly” or not. I do know that it seems like once they lose a case, they bend over backwards to correct whatever the fundamental flaw was in the original process.  Still that doesn’t guarantee that the application will be granted.

In Ms. Edmond’s case, my opinion is that her mistake was in not pushing back on the medical officer’s decision.  That even a casual reviewer – let alone an immigration officer of her many years of experience – would look at this and say “wow, how can you reach a conclusion that someone is inadmissible when they have multiple overlapping plans for payment that don’t require on personal promises to pay and cover 100% of more than 4x the estimated current cost?” suggests to me that she should have been asking that question.

Or perhaps another way of looking at it Ms. Edmond: if you were going to reject me simply because of the policy of British Columbia, why did you ask me to submit anything to you in the first place?  I could have saved the thousands of dollars I spent in responding to the fairness letter and you wouldn’t have needed to waste your scarce resources on reviewing that response.   Indeed, looking back at it now, I find it difficult to see how a Federal Judge wouldn’t have asked that question – and therein concluded that there really was no “individualized assessment”.  After all, the decision simply required referring to the provincial policy.

In Sapru, the Court concluded that the immigration officer could not “fix” the poor decision of the medical officer.  In my case, the Medical Officer Hélène Quevillon really didn’t have any other reason in her original written notes to indicate this was related to me – it really was about BC’s public funded drug policy.  Ms. Edmond didn’t even go as far as the officer in Sapru did – she certainly didn’t push back on Ms. Quevillon’s determination and there is absolutely no indication that she reviewed that decision, especially in light of her duty to do so under the Sapru decision.  She certainly didn’t try to invent additional rationale for reaching the decision.  Thus, she acted more like a rubber stamp – with even less “value add” than was the case in Sapru – a case in which the Court overturned CIC’s decision.

So while I seriously doubt that Ms. Edmond will ever review her decision in my case, if I could communicate directly with her I would say that I am disappointed – not in the outcome, but rather in her execution of the process.

I am quite fortunate – I had the drive and resources available to challenge her decision.  Most people in such a position likely just walk away from the decision.  That is why it is so important that people like Ms. Edmond do their best to ensure their decision is fair and equitable.

In the interveningyear, I’ve had the honour to assist several people with their cases, and one is a case similar to mine: a federal skilled worker application in which the spouse was found to be HIV positive.  The medical decision is still pending – they have now furthered it once again, because the test results indicate that without treatment this individual does not require treatment under current guidelines in their intended province.  Of course, if they were coming to BC it would be easier – CIC could just reject them, since the provincial policy is to provide treatment to everyone, regardless of their lab results.  It saddens me to see how difficult this is for people – leaving their lives hanging in the balance for months and years.

So Ms. Edmond, it’s been one year now since you wrote that rejection letter.  Even now as I read the closing (“thank you for your interest in Canada“) I feel a certain degree of bitterness with the snide nature of that closing line. Canada deserves better – it deserves immigration officers and medical officers that remember there are real people behind those files.

While I didn’t win the victory I really wanted, I have managed to achieve sufficient victory for me to be satisfied with the outcome.  I hope both you and Ms. Quevillon do your very best for Canada now and in the future.

Merry Christmas!


Wizard’s Second Rule

The greatest harm can result from the best intentions.

The greatest harm can result from the best intentions.

I recently read this interesting article in one of our local daily free newspapers.  As I read it, I couldn’t help but realize that this would, in essence, become a de facto way of refusing permanent residency to anyone who was afflicted with this condition.  Well, with the exception of those who are excessive demand exempt.

In that way, it takes what seems to be a humanitarian effort and perverts it into a subtle way of exclusion.  By extension, it means that any attempt to improve treatment for those already in Canada can be used to exclude anyone with that condition from coming to Canada.

This reminded me of the Wizard’s Second Rule (Terry Goodkind’s fantasy series).  The point of this rule is that when we do things we think are beneficial, they may have ramifications beyond the “good deed”.  In this case, I have no doubt that the people behind this effort truly believe that what they are doing is for the greater good, yet it will profoundly affect the lives of others in equally negative ways.

I take this as a subtle cautionary tale: unintended consequences do happen and we must be careful to protect ourselves against them.

Best wishes to all this holiday season!

The Never Ending Story

While my own journey through the quagmire of Medical Inadmissibility has come to an end (at least for now) I am glad to be hearing from those who are going through the process.

I have been surprised when I read the posts of people who are in a similar situation to mine and the vitriolic comments in public forums about them – either that or often a complete lack of response.  It is clear to me that this is a poorly understood area, with a dearth of empathy or understanding from those not impacted by it.

One recent positive step has been that CIC has published new information about the medical examination process.  This includes new forms, new processes and links to a sample from the “Panel Physician Handbook” – apparently the final handbook is not yet complete.  The information there is useful, especially for people trying to understand the initial part of the Canadian Immigration medical examination process.

Is Discretion the Better Part of Valour?

This is my first post since I converted the blog to be private.  I did so entirely for personal and selfish reasons.  It seems the attorney from Justice Canada found the blog and send a letter to my attorney who was not happy. So, at least until this matter is resolved one way or the other, I’m going to leave the blog private – people who ask for access will be granted but I’m not going to leave it public, at least for now.

Hence the title of this post – I’m being discreet.  At least for now.

Reliance on Extrinsic Evidence

I know I’m overthinking the process at this point.  I’m using different search terms to look at various court decisions.  My latest search turned up several hundred decisions and I’ve started by looking at very recent (2012) decisions.

One of these is Noh v MCI (2012 FC 529) an interesting H&C decision for a family who overstayed their visitor visas and are now trying to obtain permanent residency.  Cases such as this one are held up as an example of how the immigration system is broken.  Their children (now both over 18) have lived the past 8.5 years in Canada, going to school and even University here.  The parents are using their children’s needs as part of the rationale for why they should be allowed to remain in Canada.  I’ll leave it to the reader to decide if they should be allowed – or not – because that isn’t what caught my eye as I read the decision.

[20]           A decision-maker’s reliance on undisclosed extrinsic evidence is a breach of procedural fairness (see Tariku v Canada (Minister of Citizenship and Immigration) 2007 FC 474 at paragraph 2 and Qureshi v Canada (Minister of Citizenship and Immigration) 2009 FC 1081 at paragraph 14). Likewise, the opportunity to respond to a decision-maker’s concerns is also an issue of procedural fairness (see Karimzada v Canada (Minister of Citizenship and Immigration) 2012 FC 152 at paragraph 10 and Guleed  v Canada (Minister of Citizenship and Immigration) 2012 FC 22 at paragraphs 11 and 12.

To be honest, I’ve been thinking that the issue the medical officer raised in her affidavit (the text she didn’t have in her original notes but recalled nine months after the fact) was a “reasonableness” standard but after reading this I begin to think that in fact this is an issue of law and thus must be judged on a standard of correctness.

The standard of correctness is a much higher standard than reasonableness and there is no deference given to the tribunal for decisions on the correctness standard – while there is such deference given on the reasonableness standard.

In other words, if the medical officer and/or visa officer had concerns that the insurance coverage would pay the cost of medication, they should have advised me of this fact.  Otherwise, they deprived me of the right to address their concerns.  It reminds me of the trial in L’Étranger.

Even so, if one were to use the standard of reasonableness:

[24] When reviewing a decision on the standard of reasonableness, the analysis will be concerned with “the existence of justification, transparency and intelligibility within the decision-making process [and also with] whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.” See Dunsmuir, above, at paragraph 47, and Canada (Minister of Citizenship and Immigration)v Khosa 2009 SCC 12 at paragraph 59.  Put another way, the Court should intervene only if the Decision was unreasonable in the sense that it falls outside the “range of possible, acceptable outcomes which are defensible in respect of the facts and law.”

The decision still falls short, because even if one accepts the medical officer’s opinion that the insurance wouldn’t provide coverage, it fails to address the PHSP that covers any legitimate medical expense.

The Companioni decision set the bar fairly high – so high that it is extremely difficult for anyone not already inside Canada to reach.  Despite this, I put together a plan that I maintain anyone objectively reviewing the evidence would conclude actually met that rather high bar – it was a choate plan, the biggest concern voiced by the judge in that case.  It did not rely upon a personal promise to pay, either, another potential issue.  And, it demonstrated more than adequate funding to pay for a huge amount (approximately $68,000).

I seriously doubt that an impartial reviewer using the reasonableness standard would agree with the original rejection because if this plan cannot pass muster, no plan could pass muster and thus this whole process is a charade.  Just reject people in my position categorically.

But what I submit really happened (where “really happened” means “on a balance of probabilities”) is that the plan was ignored.  The rationale for that now are concerns that had never previously been voiced.  Rather than bolstering the government’s case, it actually damages their credibility.  Perhaps that is why thus far the government hasn’t really presented any actual legal argument against this application.  My best guess is that they will do so in their filing on the 28th – complete with the advantage of providing us with no opportunity to reply.

As usual, it’s a waiting game. 39 days to go – for the hearing.  Nobody knows how long until the decision.