People applying for a Canadian permanent residency are required to undergo medical examinations. Many people with certain health conditions are understandably apprehensive about how these examinations will impact their ability to immigrate. In this post, I hope to provide an overview about the issue of “excessive demand on health or social services,” which is probably the medical examination component that causes the most misconceptions.
The Statutory Framework
Canada’s Immigration and Refugee Protection Act (the “IRPA“) provides that a foreign national is inadmissible to Canada on medical grounds if his/her health condition might reasonably be expected to cause an excessive demand on Canada’s health or social services. A foreign national can also not obtain permanent residency if his/her family member (whether accompanying or not) is inadmissible for this reason.
The Immigration and Refugee Protection Regulations define “health services” as any health services for which the majority of funds are contributed by government, including the services of family physicians, medical specialists, chiropractors, hospital care, etc. “Social services” include home care, residential services, social, and vocational rehabilitation services, etc. that are intended to assist a person in function physically, emotionally, socially, psychologically, or vocationally, and for which the majority of funding is contributed by government.
Section 1 of Canada’s Immigration and Refugee Protection Regulations (the “Regulations“) defines excessive demand as:
(a) a demand on health services or social services for which the anticipated costs would likely exceed average Canadian per capita health services and social services costs over a period of five consecutive years immediately following an individual’s most recent medical exam, unless there is evidence that significant costs are likely to be incurred beyond that period, in which case the period is no more than 10 consecutive years; or
(b) a demand on health services or social services that would add to existing waiting lists and would increase the rate of mortality and morbidity in Canada as a result of an inability to provide timely services to Canadian citizens or permanent residents.
On June 1, 2018 the Liberal Government of Canada enacted a Temporary Public Policy Regarding Excessive Demand on Health and Social Services (the “Public Policy“)
For most applicants the key two things to note in that definition are (a) there is a distinction between health services and social services, and (b) the medical inadmissibility threshold is reached when an immigrant’s anticipated health and social services are likely to exceed the Canadian per capita average over five years.
The Regulations define “health services” as any health services for which the majority of the funds are contributed by governments, including the services of family physicians, medical specialists, nurses, chiropractors and physiotherapists, laboratory services and the supply of pharmaceutical or hospital care.
“Social services” are defined as:
as any social services, such as home care, specialized residence and residential services, special education services, social and vocational rehabilitation services, personal support services and the provision of devices related to those services,
(a) that are intended to assist a person in functioning physically, emotionally, socially, psychologically or vocationally; and
(b) for which the majority of the funding, including funding that provides direct or indirect financial support to an assisted person, is contributed by governments, either directly or through publicly-funded agencies.
The Public Policy specifies that health services include physician services, nursing services, laboratory & diagnostic services, pharmaceuticals & pharmaceutical services, hospital services, chemotherapy & radiotherapy, dialysis, psychiatric services, and supplies related to the preceding services.
The Public Policy further specifies that social services includes home care (by a nurse, physiotherapist, respiratory therapist, etc.), palliative care, psychological counseling, medical aids, appliances & prostheses, residential facilities (long-term care, substance services, etc.), and day facilitates providing constant supervision (respite care, etc.)
Importantly, the Public Policy provides that the following social services are no longer counted towards determining whether someone is medically inadmissible to Canada:
- special education services (preparation of an individualized education plan, educational assistants, etc.)
- social and vocational rehabilitation services (rehabilitation facilities, occupational therapy, behavioural therapy, speech-language therapy, etc.)
- personal non-professional support services means services such as assistance with activities of daily living (bathing, dressing, feeding, etc.), meal preparation, house cleaning, etc.
- provision of devices related to those services.
The services have traditionally been some of the most common resulting in people being medically inadmissible to Canada.
As well, the Public Policy also increases the threshold from the Canadian per capita average for health and social services to three times the average.
Individualized Approach Required – Hilewitz
The leading Supreme Court of Canada decision on excessive demand is Hilewitz v. Canada (Minister of Citizenship and Immigration); De Jong v. Canada (Minister of Citizenship and Immigration), [2005] 2 SCR 706, 2005 SCC 57. The appeal was restricted to social services. Prior to this decision, the jurisprudence suggested (or at least was divided on) that a family’s resources should be disregarded in determining whether their disabled children would create an undue burden on Canada’s social services. The Supreme Court of Canada, in a 7-2 decision, disagreed.
The Supreme Court stated:
The term “excessive demands” is inherently evaluative and comparative. Without consideration of an applicant’s ability and intention to pay for social services, it is impossible to determine realistically what “demands” will be made on Ontario’s social services. The wording of the provision shows that medical officers must assess likely demands on social services, not mere eligibility for them.
To do so, the medical officers must necessarily take into account both medical and non-medical factors, such as the availability, scarcity or cost of publicly funded services, along with the willingness and ability of the applicant or his or her family to pay for the services.
This, it seems to me, requires individualized assessments. It is impossible, for example, to determine the “nature”, “severity” or probable “duration” of a health impairment without doing so in relation to a given individual. If the medical officer considers the need for potential services based only on the classification of the impairment rather than on its particular manifestation, the assessment becomes generic rather than individual. It is an approach which attaches a cost assessment to the disability rather than to the individual. This in turn results in an automatic exclusion for all individuals with a particular disability, even those whose admission would not cause, or would not reasonably be expected to cause, excessive demands on public funds.
The issue is not whether Canada can design its immigration policy in a way that reduces its exposure to undue burdens caused by potential immigrants. Clearly it can. But here the legislation is being interpreted in a way that impedes entry for all persons who are intellectually disabled, regardless of family support or assistance, and regardless of whether they pose any reasonable likelihood of excessively burdening Canada’s social services. Such an interpretation, disregarding a family’s actual circumstances, replaces the provision’s purpose with a cookie-cutter methodology. Interpreting the legislation in this way may be more efficient, but an efficiency argument is not a valid rebuttal to justify avoiding the requirements of the legislation. The Act calls for individual assessments. This means that the individual, not administrative convenience, is the interpretive focus.
The reasoning for the individual approach as opposed to the generic one is that the latter necessarily results in the prohibition of entry for all persons who are intellectually or medically disabled, regardless of family support or assistance, and regardless of whether they pose any reasonable likelihood of actually excessively burdening Canada’s social and health services. Such an interpretation clearly disregards a family’s actual circumstances, does not actually evaluate whether an individual poses a risk, and replaces the provision’s protective purpose with a “cookie-cutter” methodology.
The practical implication of Hilewitz is that the financial circumstances of an individual must be considered in determining whether the individual will likely impose an excessive demand on Canada’s social services. (Pursuant to the Federal Court’s recent decision in Aleksic v. Canada (Citizenship and Immigration), 2010 FC 1285, this does not apply to health services.)
As a result of the jurisprudence, there are now several steps that occur before an individual can be determined to be medically inadmissible to Canada.
First, a medical officer will provide a visa officer with a medical opinion specifying the excessive demand on health and/or social services. The medical officer must write a list of the expected required social services, health services, outpatient medication and overall anticipated costs.
Second, the visa officer will send the applicant a procedural fairness letter, and ask them to complete a Declaration of Ability and Intention. The visa officer must explain that the applicant can challenge the diagnosis, challenge the list of required services and/or demonstrate that they have a plan to obtain all the services and manage the associated costs.
A Declaration of Ability must be supported by a detailed, credible and viable plan. The factors that an officer may consider include:
- If expenses must be incurred, is it likely that the applicant will have the financial ability to cover those expenses?
- What is the applicant’s prospect of employment? Will the proposed employment cover normal living expenses and the cost of the health and social services required?
- If the applicant intends to receive support from a family member, another individual or an organization, how likely is it that this organization will provide free or cost-reduced assistance for the period assessed?
- At what point is the applicant in terms of planning? If they are outside Canada, have they already made all the arrangements for the services to be delivered upon arrival? If the applicant is in Canada, have they relied on publicly funded services in the past?
The Burden of Proof
Pursuant to Hilewitz, the threshold of whether an applicant will impose an excessive burden on Canada’s health or social services is reasonable probability, not remote possibility.
An Alternative Plan for Social Services
While an individual’s financial circumstances cannot be considered in determining whether that individual will pose an excessive demand on health services (like it can for social services), immigration officers are required to consider an applicant’s plan for acquiring private health insurance if such a plan is submitted. Indeed, generally, upon receipt of an opinion by a medical officer that an applicant or applicant’s family member might reasonably be expected to cause an excessive demand on social services, an officer will send a Declaration of Ability and Intent form to the applicant for the applicant to complete.
Applicants should be advised that they cannot merely declare that they will purchase alternative insurance. Intentions and personal undertakings that one will access private health insurance are also not sufficient. Specific plans that address the problem of excessive demand are required. (Hassan Chauhdry v. Canada, 2011 FC 22). The reason is that it is not possible to enforce personal undertakings to pay for health services that may be required after a person has been admitted to Canada as a permanent resident.
In drafting a credible plan, the following should be considered:
- Does the applicant have the financial ability to cover additional expenses during the entire period covered by the medical opinion?
- What are the applicant’s and/or spouse’s prospects of employment in Canada?
- What are the applicant’s expected future earnings? Can they cover the forecasted costs of social services as well as the normal living expenses?
- Have any social service costs been prepaid by the applicant or other persons? Are those prepaid costs refundable or not?
- If additional costs are to be covered by family members or private organizations, how credible is this plan?
- What ist he likelihood that the individual/organization will provide free or cost-reduced assistance during the duration of the medical opinion? Do they have the financial ability to do so? How are they linked to the applicant? What are their means?
- Are there statutory declarations / statements by friends, relatives, and other parties?
- Has the applicant relied on publicly funded services in the past (in Canada or abroad)?
- How detailed is the plan? Have arrangements already been made?
- What is the level of additional care/attention provided to the inadmissible family member by the applicant so far in their home country?
It is important that the Declaration of Ability and Intent Form be thorough. A medical officer is not obligated to seek out information about an applicant’s ability and intent to mitigate excessive demands on social services from the outset of the inquiry. It is sufficient for the medical officer to provide a a form that clearly sets out all of the relevant concerns and provides a true opportunity to meaningfully respond to all of the concerns of the medical officer. (Sapru, 2011 FCA 35).
In the Declaration of Ability and Intent Form, it is also important that the plan not be speculative. In Burra v. Canada, 2014 FC 1238, an applicant stated that he could afford to cover the cost of his son’s autism treatment (estimated to be $80,000 to $160,000 over five to ten years) because he planned to be a doctor in Canada, and had $32,000.00 in savings which could, even if he didn’t find employment, cover the first few years. The Court noted that this provided completely inadequate evidence of capacity to cover treatment.
Helpfully, visa officers are required to provide sufficient detail in their medical fairness letters so that applicants can understand what conditions they have that are causing concerns. An officer’s procedural fairness letter must clearly advise an applicant of the medical diagnosis and prognosis, and of the services likely to be required. Indeed, it is insufficient, as the Federal Court noted in Azizian v. Canada, for example, for a person to be advised that they have cancer without advising what stage it was at.
Requirement to Consider Private Medical Reports
It is also important to note that applicants who disagree that an individual will cause an excessive burden on social or health services can provide a contrary medical report. Section 34 of the Regulations states that before concluding whether a foreign national’s health condition might reasonably be expected to cause excessive demand, an officer who is assessing the foreign national’s health condition shall consider any reports made by a health practitioner or medical laboratory with respect to the foreign national. The practical result is that qualified medical opinions can often be conclusive on this matter as the more important the evidence the greater the obligation on an immigration officer to explain the reason for its rejection (Dunsmuir v. New Brunswick, 2008 SCC 9).
In Poste v. Canada (1997, 140 F.T.R. 126), the FederalCourt held that:
.. reviewing or appellate courts are not competent to make findings of fact related to the medical diagnosis, but are competent to review the evidence to determine whether the medical officers’ opinion is reasonable in the circumstances of the case. The reasonableness of a medical opinion is to be assessed not only as of the time it was given, but also as of the time it was relied upon by the Immigration Officer, since it is that decision which is being reviewed or appealed. The grounds of unreasonableness include incoherence or inconsistency, absence of supporting evidence, failure to consider cogent evidence, or failure to consider the factors stipulated in section 22 of the Regulations.
When a government body such as Immigration requests information of an individual, it is duty-bound to consider that information when received. This is especially so in the case where the information requested is in the form of expert opinion, which is time-consuming as well as costly to acquire. If a decision is rendered that runs contrary to the information requested, the decision maker must at least make reference to the contrary information, and account for its rejection. To be put bluntly, if Immigration requests certain medical reports, receives two positive medical reports and one negative report, and a medical assessment is rendered apparently solely on the negative medical report, reasons must be given as to why the positive reports are absent from the analysis. Even if the decision makers had considered the requested information, and had placed it in the context of all the circumstances of the case, there is nothing on the face of the record communicated to the applicant to indicate that consideration of the favourable material was seriously made. There is no appearance of justice. The decision makers thus failed the applicant in these basic duties of procedural fairness and natural justice in this case.
Numerous Federal Court decisions have interpreted these requirements very strictly (Sharpe v. Canada, 2011 FC 21).
But Was the Medical Report Reasonable?
While immigration officers have a duty to consider medical reports, they also must make sure that these medical reports are reasonable (Sapru, 2011 FCA 35). Medical officers must therefore provide enough information to immigration officers so that the latter can decide whether or not the report is reasonable.
As noted by the Federal Court of Appeal, reasons can be provided in a variety of ways:
The particular circumstances of each case will dictate what is required for the immigration officer to be able to assess the reasonableness of the medical officer’s opinion. For example, admissions by a foreign national contained in the Fairness Response, without more, would likely obviate the need for detailed reasons from the medical officer on that point. Further, a medical officer may impart sufficient information to the immigration officer in a number of ways. For example, a medical officer may provide adequate reasons in a report to the immigration officer. However, adequate reasons could also be provided orally if the immigration officer records the oral advice in the CAIPS notes, or in a combination of written and oral communications where the oral advice is recorded in the CAIPS notes. Thus, a medical officer might transmit his or her notes reflecting the medical officer’s review and assessment of all of the relevant information, or an immigration officer might record in the CAIPS notes the relevant observations and conclusions of a medical officer made during the course of the collaborative process between the officers contemplated by Operational Bulletin 063. In every case, an immigration officer may seek clarification from a medical officer and record the response of the medical officer in the CAIPS notes. The reasons of a medical officer may be conveyed to an immigration officer by a combination of these or other methods.
It is not that uncommon for medical reports to be unreasonable. For example, we recently successfully overturned a medical report which erroneously described how home-schooling in British Columbia worked. As such, medical reports should be reviewed thoroughly, and, where possible, the advice of experts in the provision of health services should be sought.
The Data on Medical Inadmissibility
As is evident from the above, just because someone does not pass a medical exam does not mean that their immigration application will be refused.
From 2013 – 2016 the number of individuals who were determined to be medically inadmissible to Canada were as follows:
| Immigration Application Type | 2013 | 2014 | 2015 | 2016 |
Total
|
| Permanent resident | 1,042 | 887 | 524 | 628 | 3,081 |
| Temporary resident | 137 | 119 | 97 | 87 | 440 |
| Not Classified | 58 | 54 | 47 | 280 | 439 |
| Grand Total | 1,237 | 1,060 | 668 | 995 | 3,960 |
During this period, the top primary medical diagnoses resulting in a medical inadmissibility finding were HIV Positivity – Asymptomatic, Renal Failure – Chronic, Intellectual Disability, Developmental Delay, Infantile Autism, Senile Dementia, Nervous System Disorder, Hepatitis B, Ischemic Heart Disease – Chronic, Hepatitis – Chronic and Congenital Anomaly.
The number of inadmissible immigration medical examinations by year of assessment, broken down by primary medical diagnosis, was as follows:
|
Primary Medical Diagnosis |
2013 | 2014 | 2015 | 2016 | Total |
|
AIDS: Acquired Immunodeficiency Syndrome with or without Other Conditions |
– | 0 | 0 | – | – |
|
Alzheimer’s Disease |
10 | 10 | 5 | 15 | 40 |
|
Aneurysm |
– | – | 0 | 0 |
– |
| Aortic Valve Disease | 14 | 5 | 0 | – |
21 |
| Behaviour Disorder | – | – | – | 5 |
8 |
|
Bipolar Disorder – Manic-Depressive Psychosis |
– | 0 | 0 | – | – |
|
Blood, and Blood-Forming Organ, Disease |
5 | 8 | – | 5 | 19 |
|
Cardiomyopathy |
30 | 22 | 5 | 18 | 75 |
|
Cerebrovascular Disease |
31 | 19 | 8 | 13 |
71 |
| Colon – Malignant Neoplasm | 6 | – | – | – |
15 |
| Congenital Anomaly | 18 | 29 | 16 | 38 |
101 |
| Congestive Heart Failure | 5 | 7 | – | – |
17 |
|
Connective Tissue Disorder |
13 | 11 | 10 | 13 | 47 |
|
COPD: Chronic Obstructive Pulmonary |
|||||
| Endocrine Gland – Malignant Neoplasm | 12 | 16 | – | 11 |
40 |
| Female Breast – Malignant Neoplasm |
12 |
16 | – | 11 |
40 |
| Genitourinary Organs – Malignant Neoplasm | 17 | 13 | – | – | 37 |
| Haemophilia | – | – | 0 | – | 7 |
| Heart – Congenital Anomaly |
7 |
7 | – | 9 | 26 |
|
Heart Failure |
15 |
5 | – | – | 26 |
|
Hepatitis – Chronic |
23 |
31 | 36 | 18 |
108 |
| Hepatitis “B” | 25 | 9 | 79 | 11 |
124 |
| HIV Positivity – Asymptomatic | 135 | 156 | 130 | 136 |
557 |
|
Hypertension |
– | – | 24 | – | 32 |
|
Impaired Hearing or Deafness |
20 |
17 |
19 |
12 |
68 |
|
Impaired Vision or Blindness |
5 |
6 |
5 |
5 |
21 |
|
Inactive TB |
0 |
0 |
– |
0 |
– |
|
Infantile Autism |
72 |
61 |
39 |
61 |
233 |
|
Intellectual Disability |
151 |
144 |
39 |
113 |
447 |
|
Ischae |
|||||
| Malignant Melanoma – Skin | – | – | 0 | – |
19 |
| Mitral Valve Disease | 6 | 7 | – | – | 17 |
|
Multiple Myeloma |
0 | – | – | – | – |
|
Multiple Sclerosis |
6 | 10 | – | 8 | 27 |
|
Muscular Dystrophy |
5 | – | 0 | – | 9 |
|
Neoplasm of Unspecified Nature |
7 | 6 | – | 7 |
21 |
| Nervous System – Malignant Neoplasm | – | – | – | – |
11 |
| Nervous System Disorder | 34 | 29 | 25 | 49 |
137 |
| Nonspecific Abnormal Findings | 5 | – | – | 13 |
25 |
|
Nonspecific Abnormal Findings on Radiological |
– | – | 0 | 0 | 7 |
|
Organ or Tissue Transplant |
7 | 8 | – | – | 21 |
|
Osteoarthritis |
15 | 22 | 10 | – | 48 |
|
Parkinson’s Disease |
17 | 6 | – | 9 |
34 |
| Peripheral Vascular Disease | – | 0 | 0 | – |
– |
| Personality Disorder | – | 0 | – | 0 |
– |
| Pulmonary Fibrosis | – | 0 | 0 | – |
5 |
| Pulmonary Tuberculosis – Inactive |
– |
– | – | 0 | 8 |
|
Pulmonary Tuberculosis – Inactive – Previously Active |
0 |
0 | – | 0 | – |
| Pulmonary Tuberculosis – Active | 14 | 9 | 9 | 17 |
49 |
| Rectum – Malignant Neoplasm | 5 | – | – | – |
12 |
|
Renal Failure – Chronic |
150 | 120 | 81 | 149 | 500 |
|
Renal Function Impairment Disorder |
0 | 0 | 0 | 5 | 5 |
|
Schizoaffective Psychosis |
– | – | – | 5 | 12 |
| Schizophrenia | 14 | 9 | 9 | 8 |
40 |
| Senile Dementia | 78 | 45 | 13 | 22 |
158 |
| Small Intestine – Malignant Neoplasm | 0 | – | – | 0 |
– |
|
Stomach – Malignant Neoplasm |
5 | – | 0 | – | 9 |
|
Trachea, Lunch – Malignant Neoplasm |
41 | 24 | – | 11 | 79 |
| (See Narrative) | 31 | 7 | 0 | 0 |
38 |
| Unspecified | 0 | – | 0 | – |
– |
| Total | 1,237 | 1,060 | 668 | 995 |
3,960 |
Roughly half of the above for each year were for permanent residence applications.
However, it is important to note that not all medical inadmissibility findings resulted in a negative determination.
From 2013-2016 the number of applications that were approved despite there being a negative medical exam because of an approved Notice of Ability and Intent or an ultimate determination that costs could be minimized was 262, 224, 104 and 116 respectively. For some of the more common types of medical conditions the data regarding initial finding of inadmissibility vs the final decision of excessive demand showed that applicants were able to overcome most negative determinations.
As well, from 2013 – 2016 the approval rate when applicants requested that humanitarian & compassionate considerations supersede the inadmissibility was exceptionally high, and in fact exceeded 90%. The data below is separate from the approvals mentioned above.
Conclusion
If this all seems complicated, it’s because it is. As shown in the chart below, the process of resolving and addressing a medical inadmissibility can be long, and numerous submissions are required.