British Columbia

Private Vancouver clinic loses constitutional challenge of public health-care rules

The B.C. Supreme Court has dismissed a years-long court challenge of public health-care rules in B.C. that claimed the province's health-care system denies patients the right to timely care. Dr. Brian Day had argued patients have the right to pay for private care if the public system is too slow to accommodate them.

Dr. Brian Day had argued patients have the right to pay for private care if public system is too slow

Dr. Brian Day, a self-described champion of privatized health care, is pictured at his office in Vancouver on Aug. 31, 2016. (Darryl Dyck/The Canadian Press)

The B.C. Supreme Court has dismissed a years-long court challenge of public health-care rules in B.C. that claimed the province's health-care system denies patients the right to timely care.

The constitutional challenge launched by private health-care advocate Dr. Brian Day, the owner of the Cambie Surgery Centre in Vancouver, claimed that prolonged wait times for medical procedures violated two charter rights, including the right to life, liberty and security of the person.

Day argued patients have a constitutional right to pay for private care when wait times in the public system are too long.

Day opened the Cambie Surgery Centre in 1996 and launched court action against the B.C. government in 2009 over sections of the Medicare Protection Act. It prohibits doctors from billing the government for work they do in the public system while also earning money from private clinics as well as billing patients or their insurance companies.

Justice John J. Steeves dismissed both charter claims, noting that B.C.'s Medicare Protection Act is focused on medically necessary care, not ability to pay.

Opponents have said a two-tier system would favour patients who are wealthy enough to pay for "queue-jumping'' private insurance, as well as doctors who could bill both the public and private systems.

Dr. Darius Viskontas, left, prepares to remove a cyst from a male patient's knee, with assistance from Dr. Anne Wachsmuth, centre, and Miwa Holm, an operating room registered nurse, at the Cambie Surgery Centre in Vancouver on Aug. 31, 2016. (Darryl Dyck/The Canadian Press)

Lawyers argued universality of health-care at stake

Lawyers for both the B.C. and federal governments have argued such a system would erode Canada's universal health-care system and negatively impact patients with complex chronic conditions and the elderly.

While the court ruled against Day, Steeves did find that surgical patients are not receiving care in a timely manner, and that these lengthy wait times for surgery result in prolonged pain and suffering for patients.

"Some of these patients will experience prolonging and exacerbation of pain and diminished functionality as well as increased risk of not gaining full benefit from surgery," Steeves wrote.

Day says the trial is about patients' access to affordable treatment, while his opponents accuse him of trying to 'cherry pick' a key act of the medical system. (Darryl Dyck/The Canadian Press)

Day has not commented on the decision but has said in the past he anticipated an appeal.

At a news conference Thursday, B.C. Health Minister Adrian Dix said the province is delighted with the decision.

"The ruling emphasizes the strength and the importance of public heath care, which is a cornerstone of our identity in British Columbia," he said.

Dix pointed to one section of the 800-page ruling highlighting testimony from physicians who declared surgical wait times have been improving in recent years, and that the province has implemented measures to successfully reduce them.

A report released last year suggests that wait times have been improving in B.C. since 2014 —  although it also found B.C. patients wait longer for key medical procedures than other Canadians.

B.C. Health Minister Adrian Dix responds to the landmark court ruling that dismissed claims that surgery wait times were a violation of B.C. charter rights. The province is delighted with the decision, he said. (Michael McArthur/CBC)

'A historic win'

The B.C. Health Coalition was among the intervenors in the case. Edith MacHattie, co-chair of the coalition, said she started crying once the decision was released.

"[The case] has been the most serious attack against our public health-care system that we've ever seen," she told CBC News. "What [Steeves] has really done is uphold our existing medicare laws and really confirming that they're in the best interest of everyone in B.C."

Dr. Danyaal Raza, Chair of Canadian Doctors for Medicare, another intervenor in the case, suggests had the decision gone the other way, wait times for public health care would have gotten longer — not shorter.

"We don't have an unlimited supply of doctors and nurses, so if you take some of them out of the public system, and reserve them just for small number of people that can pay to get care at the front of the line, then there's fewer folks left over to care more people waiting in the public health care system," he said. 

In a statement, the Canadian Federation of Nurses Unions called the ruling "a historic win for Canada's public health- care system."

Looking to the future

While the decision marks a significant moment in the history of Canadian health care, some members of the community say there is still much more work to be done to improve treatment.

In response to the judgement, the B.C. Anesthesiologists' Society said it's time for the province to commit to Patient Wait Time Guarantees.

Meanwhile, the Canadian Medical Association says healthcare funding has not kept pace with efforts to improve funding for an aging population.

"An increased investment to address these issues would ensure that Canadians have wide-ranging access to the health care they need, when and where they need it," said Dr. Ann Collins in a statement.

With files from The Canadian Press

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