PRIVATIZATION – CHALLENGING THE PUBLIC HEATH CARE SYSTEM

Cambie Surgeries Corporation vs British Columbia – 2020 BCSC 1310
A REVIEW OF THE DR. BRIAN DAY CASE

We had been anxious since 2009. That was the year Dr. Brian Day filed a constitutional challenge to our public health care system. Seeking legal approval to expand the provision of private health care in Canada, Dr. Day laid his challenge before the British Columbia Supreme Court in 2016. Delays and adjournments followed. Finally, on September 10, 2020, the Honourable Justice John Steeves released his 880-page decision. It is one of the lengthiest judgments every written in the BC Supreme Court.¹

How the Trial Came to Be:

By 2009 dozens of patients had complained of having been overbilled by Dr. Day’s Cambie clinics. Their stories spurred an audit by the BC Government (the BC Medical Services Commission). The results of the audit, released in 2012, found that Cambie Surgeries and another private clinic had indeed billed patients more than is permitted by law for health services covered by Medicare. For one 30-day sample, overbilling amounted to almost half a million dollars. The audit also found instances of double billing: patients in the sample period had been billed $66,000 directly while the tax-payer–funded provincial plan also had been billed the same amount for the same services. In an effort to legitimize his practices, Dr. Day filed a Charter challenge to BC’s ban on private health care.

There is no outright ban on privately financed health care in Canada. Doctors are not legally prevented from working entirely in private facilities, and patients are not prevented from paying out of pocket. However, limits on charging patients privately are enshrined in the Canada Health Act and its equivalent provincial legislation, the BC Medicare Protection Act. Physicians enrolled in, and thus being paid by, BC’s Medical Services Plan (MSP) must work entirely within the publicly-funded system when providing medically necessary care, whether that care is provided in hospitals or privately-owned facilities. As long as physicians are enrolled in MSP and opted in, they are prohibited from charging BC residents any fee for the provision of medically necessary procedures. They must choose the system in which they wish to work.²

The Plaintiffs and Their Claim:

Dr. Brian Day, President and CEO of Cambie Surgeries Corporation, along with several individual patients, claimed that the provisions of the BC Medicare Protection Act which restrict charging patients privately are unconstitutional, that they infringe upon the rights of patients to life, liberty, and security of the person under Sections 7 and 15 of the Canadian Charter of Rights and Freedoms.

They argued that some patients in the public system must wait for elective surgery and non-urgent specialist appointments, and long wait times for treatment cause real and substantial harm to patients. A parallel private system would increase reasonable access to health services, improve quality of care and reduce cost. Patients should have the right, they argued, to obtain medical services more quickly by paying privately, either out-of-pocket or through private insurance.

The plaintiffs sought to overturn three key provisions of the BC Medicare Protection Act: Section 14, which provides mechanisms for payment to physicians for services rendered; Sections 17 and 18, which set limits on the prices physicians can charge the provincial plan for services; and Section 45, which prohibits the sale of private health insurance for medically necessary services covered under the provincial plan.

The plaintiffs argued that there should be no prohibition against doctors working privately and in the public health care system at the same time, that there should be no limits on extra billing for medical services, and that private health insurance to cover medically necessary care should be freely available and lawful.

The plaintiffs pursued a system of “dual practice” whereby physicians could be paid from both public and private purses, including through private duplicative health insurance covering the same medically required hospital and physician care covered under MSP.

The Defendants and Their Arguments:

The defendants – the Attorney General of BC (the Province, the Minister of Health) and BC’s Medical Services Commission – argued that there is no causal connection between BC’s limits on private billing and the deprivation of life, liberty or the security of person as alleged by the plaintiffs.

The disputed provisions of the Medicare Protection Act should not be struck down because they support a primary objective of the Canada Health Act: to ensure that the Province facilitates “continuous and reasonable access to health care services without financial or other barriers”.³

The prohibitions on private health care are necessary to preserve the integrity of a universal public health care system, equal in access, free from cost barriers, and equal in terms of services rendered and timeliness of service.

The defendants argued that an emergent parallel private system would not cut wait times. First, the public and the private systems would be competing for the same pool of professionals. Physicians would lured by financial gain out of the public system into private clinics, leaving fewer medical personnel in the public system. With fewer doctors, wait times would grow; and the availability, quality and timeliness of care in the publicly funded system would be diminished.

A parallel private health care system would increase wait times by encouraging unethical practices and providing services open to only some patients: physicians would be incentivized to maintain long wait lists in the public system in order to drive patients to seek treatment from them in private and more lucrative clinics where they could set their own fees;

Inequity would emerge. Individuals with lower socio-economic status who could not afford private care or who would not be eligible for private insurance would suffer due to waits. Private practice could select the “best” patients – the healthiest and the wealthiest, the medically low risk patients who can be treated quickly with straightforward medical interventions. Serious, chronic or complex cases would be left to the public system.

The Intervenors:

Apparently quite rare at the trial level, intervenors were engaged in this case. First were the Canadian Doctors for Medicare, two patients and two doctors, and the BC Health Coalition, who were supported among other concerned groups and individuals by the Canadian Association of Retired Teachers and the BC Retired Teachers Association. A second group of intervenors were patients who claimed they were unlawfully billed at Dr. Day’s clinics and who, with the support of the BC Nurses Union, initially brought a legal petition forward to compel the province to act. The third set of intervenors was the BC Anaesthesiologists Society. According to Adam Lynes-Ford of the BC Health Coalition, the direct participation of the intervenors [was] essential as “the evidence and facts provided at the trial stage in BC will be the record upon which a Supreme Court of Canada decision, if necessary, will be made.”⁴ Indeed, Justice Steeves’ judgment made 60 references to the BC Health Coalition, which indicates the significant role of the intervenors in this case.⁵

The Judgment:

On September 10, 2020 the Honourable Justice John Steeves, released his 880-page long decision. He ruled against the plaintiffs’ arguments and in favour of Canada’s existing public health care system.

The Judgment is lengthy, based soundly in evidence, and certain in its conclusions. For us, at the heart of it are two main issues: (1) the plaintiffs’ Section 7 Charter challenge and (2) the certain emergence of a second preferential tier of health care delivery.

Section 7 of the Charter of Rights and Freedoms, (life, liberty, and security of the person):

Justice Steeves noted that the challenger would have to prove that Section 7 was violated because a person was deprived of a Charter-protected right. Then, if a deprivation was established, it must be demonstrated that the deprivation violates the principles of fundamental justice by being arbitrary, overbroad and grossly disproportionate.

Relying on the opinions of experts in the field, Justice Steeves ruled that “timely and high-quality care is [indeed] provided to patients with urgent and emergent conditions where there is risk to life or limb, and there is no evidence of any deaths caused by waiting in British Columbia” [1748-1763].⁶ Consequently, the right to life was not “engaged”, (there is no evidence that wait times were clinically significant in the death of patients in British Columbia). Nor was the liberty interest engaged as the provisions being challenged did not deny patients the freedom to accept or reject medical treatment [1752]. “In Canada,” Justice Steeves writes, “patients are free to choose the medical care they want as well as where, when (subject to wait times, of course) and who will provide them that care” [1765].

In respect to an infringement on the right to security of the person, Justice Steeves ruled that the Plaintiffs were successful only at Stage One of the Section 7 analysis. Yes, unreasonable wait times could “engage” one’s right to security of the person for some patients: denying patients the ability to avoid unreasonable wait times does endanger their health and well-being, and does violate their rights to security of the person [1931 -1942]. However, Justice Steeves dismissed the plaintiffs’ claim under Section 7 because they had failed to show that the right to security of the person under the Charter had been deprived contrary to the principles of fundamental justice: “The challenged ‘provisions’,” he writes, “are not arbitrary, overbroad, or grossly disproportionate”. They are minimally impairing and their effects are proportional to their objectives which support a single payer, universal health care system.

In concluding, Justice Steeves writes, “Overall, the evidence shows that the benefits of the impugned provisions [of the Medicare Protection Act] are substantial. The impugned provisions [those challenged by the plaintiffs] are essential to preserving and ensuring the sustainability of the universal public healthcare system and ensuring that access to necessary medical care is based on medical need and not the ability to pay” [2928].

A Second Tier of Preferential Health Care Delivery:

Justice Steeves reasons that the provisions of the Medicare Protection Act which the plaintiffs were challenging are essential to the existence of our universal single-payer health care plan. Hearing expert evidence related to health care systems around the world, he concluded that the disputed provisions of the Medicare Protection Act supress and discourage the emergence of a parallel, duplicative private plan. Should the disputed provisions be withdrawn from the Medicare Protection Act, then a duplicative private system would surely arise. It would undermine the legislative purpose of preserving and ensuring the sustainability of the universal public system, and have negative impacts on the health of citizens.

A dual system would, in fact, increase, not reduce, patient wait times. Physicians would be lured to a lucrative private practice where they would be able to charge patients whatever fees they wished on top of what physicians are already paid by the government. There, they could be incentivized, since physicians manage their wait lists, to prolong wait times with the object of directing patients to their more profitable private practice. Further, physicians are finite in number. As the private and public systems compete for the same pool of medical personnel, the capacity of the public system would be inevitably diminished. Wait times would become longer.

With a parallel public system, “inequity in accessing health care would be exacerbated as patients seek necessary medical care. Instead of care being delivered on the basis of need, as is the case now, overturning the limitations on private payment would result in care being provided first to those who can afford to pay” [2274 -2670]. Referrals to specialists from the private system might jump the queue in the public system as private pay patients are prioritized at the expense of patients in the public system.

Justice Steeves agreed with experts who testified that duplicative private healthcare presents another disadvantage to the provision of health care: increases in demand and costs overall. The addition of a parallel private system would mean additional administrative, operational and regulatory imperatives, which would increase the costs of delivering health care. Furthermore, costs would increase as the public system competes with deep-pocketed private insurers.⁷ Other cost repercussions reside in the Canada Health Transfer. Under regulation, provinces are hit with fines and claw backs in cases of overbilling when delivering health care. Justice Steeves refers to repeated losses related to the Transfer to the province of British Columbia over the years, all related to overbilling by private health care providers. He foresees continued losses to the health care budget of BC as overbilling would inherently characterise a dual health care delivery scheme. Finally, another fundamental financial disadvantage could also emerge: Justice Steeves writes that “ some studies and economic modeling . . . suggest that a competitive duplicative private healthcare system would, in the long term, undermine the willingness of higher income individuals (who would opt for private care) to support the public system through their taxes” [2906].

Justice Steeves makes the point that surgical care is only one aspect of the public healthcare system and that the most vulnerable segments of society depend on the many aspects of public medical care, not only surgical care. Older Canadians, people with severe chronic conditions, and those with substance abuse and mental issues rely heavily on the health care system as they access the many other essential services of health care, including primary care, non-surgical treatment for cancer, mental health care, disease control and health promotion [2929]. As health care dollars are finite, the health and the rights of vulnerable patients would be affected by the additional costs associated with maintaining a dual health care delivery system.

Justice Steeves concludes his judgment: “It cannot be said that the effects of the impugned provisions on the patient plaintiffs . . . is disproportionate to their societal benefits in terms of preserving and ensuring the sustainability of the universal public system and ensuring that access to care is based on need and not the ability to pay” [2932].

Expert Testimony:

Justice Steeves chooses to devote a section of the Judgment to a discussion of “expert” witnesses and reports. He explains that expert witnesses of the Court cannot be advocates for either side; their testimonies must be unbiased, factual, and within the expertise of the witness. A number of the plaintiff’s expert opinions were ruled to be given no or little weight because of violations of one or more of the criteria above. Plaintiff Dr. Day had sent an email to his chosen expert testifiers, outlining his expectations for their testimonies [1139]. Those testimonies were rendered “tainted”.

The Fraser Institute had prepared for testimony a report based on excessive wait times in the delivery of health care. In an explanation of twenty-four paragraphs, Justice Steeves finds the Fraser Institute survey methodology to be problematic; and the presenter of the report, witness Mr. Esmail, minimally qualified as an expert in the area of health policy and to have embellished his qualifications and experience as related to the trial issues [1263].

And Now?

Justice Steeves has spoken, coming down firmly in support of our system of public health. A great sigh of relief by the collective Canadian self. We value Medicare. It aligns with our societal values of caring and compassion, our belief that medical care should be based on need, and not the ability to pay. In this time of COVID -19, we compare ourselves with other nations, and we see the worth of our public health care system even more amplified in this existential public health emergency.

But we cannot be complacent. Dr. Danyaal Raza, Chair of the Canadian Doctors for Medicare, says, “This case was never about wait times – it was always about profit.”⁸ The forces for Dr. Brian Day are undeterred. The day after Justice Steeves’ decision, Dr. Day’s lawyers were already working on an expedited appeal and an application to prevent the BC Government from enforcing the controversial provisions of the Medicare Protection Act that were upheld by Justice John Steeves.⁹ Perturbed by the ruling, former BC Premier Gordon Campbell, called Dr. Day to commiserate with him and encourage him.¹⁰

Joanna Baron is the executive director of the Canadian Constitution Foundation, a private group that helped finance Dr. Day’s case. The foundation is listed as a charity and as such enjoys all the inherent privileges of a Canadian charity. It is funded in part by entities beyond our border,¹¹ and it is actively soliciting donations to continue the battle for a parallel private health care system in Canada.¹² Baron says [the case] “will be appealed all the way to the Supreme Court if necessary. . . [to] the final determinant of the meaning of the Charter in Canada.”¹³

As the spectre of an American-style health care for our country remains, we applaud and encourage those who are vigilant, who speak up for our public health care system, and who carry on the battle to maintain universal Medicare for all Canadians.

~ By JoAnn Lauber, October 28, 2020

President, ACER-CART, 2014 – 2016
Director, BCRTA, 2003 – 2019

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1. 1. Cambie Surgeries Corporation v. British Columbia (Attorney General), 2020 BCSC 1310 www.bccourts.ca
   2. Mushtaq, Husman, Coordinator, BC Health Coalition, Remarks to the Annual Action Assembly, a Zoom Conference Organized by the Ontario Health Coalition, October 24, 2020.
   3. Canada Health Act 1984, c. 6, s. 3.
   4. “The Legal Attack on Public Health” www.bchealthcoalition.ca
   5. Mushtaq, Usman, Coordinator, BC Health Coalition, Remarks to the Annual Action Assembly, a Zoom Conference Organized by the Ontario Health Coalition, October 24, 2020.
   6. Cambie Surgeries Corporation v. British Columbia (Attorney General), 2020 BCSC 1310
   7. When Dr. Zachary Sussman went to his employer-owned Physicians Premier ER in Austin for a COVID-19 antibody test, the free-standing emergency room charged his insurance company $10,984 for the visit — and got paid every penny, with no pushback. Those dollars come from people who pay insurance premiums. Dismayed, knowing the testing materials cost about $8, Dr. Sussman quit his job. www.problica.org
   8. Dr. Danyaal Raza, Chair of the Canadian Doctors for Medicare, Remarks to the Annual Action Assembly, a Zoom Conference Organized by the Ontario Health Coalition, October 24, 2020.
   9. “Plaintiffs will appeal landmark court case challenge of universal Medicare”. Vancouver Sun. Sept 11, 2020.
   10. “Plaintiffs will appeal landmark court case challenge of universal Medicare”. Vancouver Sun. Sept 11, 2020.
   11. “13 things you need to know about the people trying to end Canadian health care as we know it”. Sept. 2016. PressProgress www.pressprogress.ca. Accessed Oct 28, 2020.
   12. https://theccf.ca/going-forward-with-the-fight-for-healthcare-freedom/
   13. https://www.theglobeandmail.com/canada/article-a-look-at-the-bc-supreme-court-ruling-and-where-brian-days/ Sept 10. 2016