B.C. public health-care system upheld in landmark court decision

Cambie Surgeries Corp. challenged a ban on private insurance and extra billing in health care.

Brian Day, who owns the Cambie Surgery Centre and Specialist Referral Clinic, has been embroiled in a decade-long constitutional battle to create a two-tiered health-care system where both private and public sector options are provided.

The B.C. Court of Appeal has upheld a judgment that an extra-billing and private insurance ban in the medical system does not violate Canada’s Charter of Rights and Freedoms, in a landmark decision upholding key tenets of the public health-care system.

Vancouver doctor Brian Day had challenged the province’s Medicare Protection Act outlawing de facto two-tier health care by disallowing the right to pay for private medical care in certain instances.

In 2020, Day and his company Cambie Surgeries Corporation lost the case, which spanned four years in court, when the B.C. Supreme Court upheld the act, which is designed to provide equal public health-care access. Day appealed the case, asking the appeal court to assess whether the B.C. Supreme Court made any errors in coming to its conclusion.

The decision was made by Hon. Chief Justice Robert Bauman, Justice David Harris and Justice Lauri Ann Felon.

Judges Bauman and Harris found a ban on private insurance and extra billing rights (for doctors) did deprive some people of their right to life, liberty or security; however, those restrictions are in accordance with the principles of fundamental justice. Fenlon found those restrictions were grossly disproportionate and not in accordance with the principles of fundamental justice; however, all three agreed that under Section 1 of the Charter, the act can be demonstrably justified to be a reasonable infringement of rights.

The judges also agreed the trial judge made the right decision in deeming government had properly and rightly argued the restrictions are justified and minimally harmful (not disproportionately severe). The restrictions were also not arbitrary nor overbroad, the judges ruled.

“These provisions, the ban on extra billing and the prohibition on the sale of private insurance, are the provisions the appellants (Day) say are unconstitutional. They do not explicitly prohibit private health care but effectively prevent the emergence of a duplicative private health-care system in British Columbia by (1) making a private parallel market economically nonviable; (2) discouraging the emergence of a private market; and (3) making it more difficult to obtain necessary services privately,” noted the ruling on July 15 written by Fenlon.

At the heart of Day’s challenge was lengthy patient wait times, with Day arguing people should have the right to pay to jump the public queue.

“There is no dispute that many patients in most surgical categories are waiting beyond the assigned benchmark. Some of those patients experience increased risk of deterioration and reduced surgical outcomes,” wrote Fenlon, but “the evidence is clear that unscheduled urgent and emergent care is provided in a timely manner.”

The three judges did find some errors in the trial judge’s decision, namely that the judge didn’t adequately assess whether waiting in line for surgery can increase the risk of death.

However, Fenlon noted the trial judge correctly found such risks are reasonable weighed against the goal of the act. Furthermore, if wait times are a problem, the government is capable of fixing them and is incentivized to do so.

“The pressure of voter dissatisfaction with the current system and the sheer number of those who cannot obtain timely care will be catalysts for change,” stated the ruling.

Fenlon noted the trial judge relied on “imprecise social science evidence” to assess the impact of allowing a duplicative private healthcare system. As well the court must rely on studies of the public system, which in this case “concluded one public system should be continued despite the imperfections of this model.”

Ultimately, Fenlon wrote that the case is unlikely to satisfy the public given some of the apparent problems in Canada’s healthcare system.

“The conclusion we are compelled to reach is far from a satisfactory one. The record establishes that thousands of patients every year are waiting beyond medically acceptable wait times for care. Those thousands include many, perhaps even a majority, who could afford private insurance and private care if the impugned provisions did not effectively prevent a private system from emerging.

“Even without private insurance, many could and would choose to pay for basic surgeries for cataracts, hips, knee replacements, and for diagnostic tests. It is this broad range of British Columbians of relatively ordinary means who are being denied a remedy by the application of s. 1—the truly wealthy will simply cross the border to avail themselves of the private care available in the United States.

“We reach the decision we do in this case, constrained by the record, and recognizing that the impugned provisions are upheld at the cost of real hardship and suffering to many for whom the public system is failing to provide timely necessary care.

gwood@glaciermedia.ca