BC’s Court of Appeal will decide Friday whether a lower court erred in law in a landmark ruling that upheld key elements of the province’s public health care system and rejected a challenge that critics said prioritized access to health care based on ability to pay against medical needs. The pandemic has exposed the vulnerabilities of Canada’s health care system and left many demanding changes. Colleen Flood, University of Ottawa Research Chair in Health Law and Policy, noted that COVID-19 has significantly exacerbated long wait times – a problem central to Cambie Surgeries Corporation v. British Columbia. “From a policy perspective, the question is: Would this really be solved with a two-tier health care system?” said Professor Flood, who is also a co-author of the book Is two-tier healthcare the future? “And then the legal question is: Can you prevent someone with money or private insurance from accessing private health care if they claim a Charter right when there are long waiting times?” The plaintiffs in the case – led by Brian Day, an orthopedic surgeon and president and CEO of Cambie Surgeries Corporation – argued that patients have a constitutional right to pay out-of-pocket for medical care that is necessary when the wait time in the public system is very long. They invoked Section 7 of the Charter of Rights and Freedoms: the right to life, liberty and security of the person. They sought to overturn provisions in BC’s Medicare Protection Act that bar doctors from accepting payments from both public and private purses, limit co-pays and bar health insurance for services already covered by the public plan. The court heard more than 100 witnesses. The suit named as defendants the Attorneys General of BC and Canada, as well as two intervening groups. Defendants and intervenors countered that the case was not about health care delivery but about financial greed, and that removing restrictions on a two-tier system would prioritize treatment of those who could afford it, upending the very foundations of the public health system care of Canada. Dr. Day began the legal action in 2009 and it landed in the BC Supreme Court. in 2016 with the support of four of his patients. In September 2020, BC Supreme Court Justice John Steves issued an 880-page decision upholding the law’s provisions. Justice Steeves wrote that the provisions at issue did not infringe on the plaintiffs’ rights to life or liberty, as there was no evidence that he had died from long waits and the provisions did not interfere with the patient’s ability to make fundamental personal choices, respectively. The provisions did deprive some patients of their right to privacy because they faced waiting times that were clinically significant to their health, Justice Steeves wrote. However, this deprivation was consistent with “fundamental justice” because medicare laws serve the purpose of ensuring sustainable public health care. In an appeal filed in early 2021, the plaintiffs said the judge erred by narrowly construing the scope of each Section 7 right, “concluding that harms to patients were justified on the basis of legally flawed and constitutionally irrelevant concerns.” By requiring proof that the long wait times caused the deaths of specific people, for example, plaintiffs say it precluded the increased risks to life caused by the delays. The judge also wrongly concluded that the Section 7 interest “does not include access to necessary medical care, but only the choice to accept or refuse treatment,” they say. Dr. Day told The Globe and Mail this week that he is optimistic about Friday’s ruling because he believes the judge made multiple legal errors. Whatever Friday’s outcome, the case is expected to reach the Supreme Court of Canada. Professor Flood said the case was “extremely important” as it was of fundamental importance to public medicine. Allowing a two-tier health care system would worsen access to health care because it would take more doctors and nurses away from a public system already depleted by staff shortages, he said. “If we take them out of the public health care system and move them into the private health care system, then we’re taking them away from a problem that’s already terrible,” Professor Flood said. “One can only imagine that it would get infinitely worse.” Professor Flood said she hoped the case would prompt government action. “This has been going on for years and years now, this problem of waiting times, eroding people’s engagement in the public system,” he said. “What I’m hoping for is the opposite of what Dr. Day, which is that these bad things will allow privatization. What I hope is that these bad things will motivate the federal and provincial governments to work together and fix this problem.” We have a weekly Western Canada newsletter written by our BC and Alberta bureau chiefs, providing a comprehensive package of the news you need to know about the region and its position on the issues facing Canada. Sign up today.
