A three-judge panel at the BC Court of Appeal on Friday rejected Dr. Brian Day that a lower court judge had made critical factual errors in denying his constitutional challenge to legislation that prevents patients from accessing private care when they are waiting in the public system is too long. In most of their reasons for judgment, Chief Justice Robert Bowman and Justice David Harris wrote that while long waits for treatment have denied some patients their constitutional rights to life and safety of the person, these violations are permitted under the principles of fundamental justice. The justices said the laws Day opposes are intended to ensure fair health care delivery and prevent the creation of a two-tiered system where access to potentially life-saving treatment depends on wealth. “We accept the self-interest British Columbians have in avoiding a long wait when they have the resources to avail themselves of private care to avoid an increased risk of death. We do not minimize the seriousness of this issue,” the decision said. “But, we also recognize that the objective of the MPA [Medicare Protection Act] it includes ensuring that people who cannot afford to pay are not thereby deprived of necessary medical care.’ BC Health Minister Adrian Dix applauded the decision in a written statement, saying he was “extremely pleased” with the outcome, pledging to “vigorously defend” the public system. Dr. Melanie Bechard, the president of Canadian Doctors for Medicare, intervening in the legal case, acknowledged the public system is under severe pressure, but said there are fair solutions to problems with wait times and quality of care. “Allowing doctors to charge patients as much as they want and forcing patients to pay out of pocket or buy private insurance is not one of them,” she said in a statement.
The challenge is expected to land in the Supreme Court
The appeals court decision closes another chapter in a legal saga that began in 2009, but the story is probably far from over. Day has long said he expects to face his case up to the Supreme Court of Canada. Day opened Cambie Surgery Center in 1996, privately billing a variety of different procedures, including orthopedic surgeries, screening colonoscopies, and oral and plastic surgery. Dr. Brian Day, a self-proclaimed champion of privatized health care, is pictured in his office in Vancouver on August 31, 2016. (Darryl Dyck/The Canadian Press) His constitutional challenge, filed with four patients as co-plaintiffs, involved two sections of the MPA that prevent doctors in BC from charging patients above the rate paid through the Medical Services Plan (MSP) and that prohibit the sale of private insurance that covers treatment provided under the MSP. BC Supreme Court Justice John J. Steeves dismissed the challenge in September 2020 in a decision that ran to more than 800 pages. He said he saw nothing to suggest that unlimited private health care would reduce wait times in the public system, and in fact, most experts testified that wait times would actually increase. In their reasons for supporting this decision, Bauman and Harris acknowledged that much has changed in the past two years and that the strains on the health care system have only become more acute. “We take judicial notice of the crisis caused by the COVID-19 pandemic, resulting in the cancellation or postponement of elective surgeries and other procedures. We are also aware of the current shortage of family physicians, which limits readily accessible primary care,” the judges wrote . However, they said the current challenges could not account for the court’s analysis of the facts. Dr. Darius Viskontas, left, prepares to remove a cyst from a male patient’s knee, assisted by Dr. Anne Wachsmuth, center, and Miwa Holm, registered nurse in the operating room, at Cambie Surgery Center in Vancouver on August 31, 2016. The clinic is at the center of a constitutional challenge to BC’s health care laws. (Darryl Dyck/The Canadian Press) Although the appeals court upheld the BC Supreme Court’s overall decision to dismiss Day’s challenge, superior court judges said Steeves had erred in finding that the MPA does not interfere with the charterer’s right to life. “The risk of death has increased for an unknown number of people with life-threatening conditions who wait beyond the benchmark for certain procedures and who, but for the provisions at issue, could otherwise have access to private care and reduce the wait. ” they wrote. Still, Bauman and Harris said the violation of Section 7 rights under the Canadian Charter of Rights and Freedoms was justified to protect those who cannot afford private care.
The 3rd Justice offers different reasons for dismissing the appeal
A third appeal court judge, Justice Lauri Ann Fenlon, agreed with the decision to dismiss Day’s appeal, but found long wait times in the public system to be “grossly disproportionate” to the goals of the BC law. “A system that provides care three years after need could not, except under the most strained definition, be described as a system that provides access to medical care,” he wrote. However, he said this breach of the principles of fundamental justice was justified under Section 1 of the charter, which allows for “reasonable limits prescribed by law as may demonstrably be justified in a free and democratic society”. Fenlon wrote that while the current system prolongs suffering and causes harm to those who could pay for private treatment, she needed to consider the common good. “The negative consequences of repealing the provisions at issue and providing private care will force those who could not benefit from private care — the most vulnerable in society — to wait even longer for care, thereby increasing the risk of harm — beyond that that we have been found to exist under the current regime,” she said in her parliamentary remarks. The original trial in the Supreme Court of BC. it lasted 194 days and heard evidence from 17 patients, 36 doctors and 17 representatives of the health authorities and the province. A total of 590 exhibits were admitted into the record, including 40 expert reports. The Early Edition13:16Dr. Brian Day on his push for private healthcare The owner of Cambie Surgery Center in Vancouver is speaking out about his constitutional challenge arguing that Canadians should be allowed to pay for access to private health care.
