British Columbia

Westbank First Nation hospital likely unconstitutional, says expert

A B.C. First Nation's plans to build a 100-bed private hospital in the Okanagan will most likely be challenged by the federal government, according to one constitutional expert.

Canada Health Act prevents charging patients for insured procedures

A B.C. First Nation's plans to build a private hospital in the Okanagan will most likely be challenged by the federal government, according to one constitutional expert.

The Westbank First Nation wants to build a $120-million for-profit facility on its reserve near Kelowna. Chief Robert Louie said last week that construction on the 100-bed hospital would begin later this year.

Once complete, Louie said it would serve any patient willing to pay for private treatment and would operate outside Canada's medicare system.

But  Gordon Christie, the director of UBC's First Nations Legal Studies program, says he expects the federal government will take issue with that plan.

"I would assume that they would challenge this in the courts and to say that the Westbank First Nation doesn't actually enjoy the authority to plan and construct this kind of operation."

Louie has said their self-government agreement says the band does not need approval from the province to build and run the hospital.

But Christie says the agreement doesn't deal with issues like a First Nation operating a hospital for profit.

"There's a difference of opinion, apparently, about how far self-government extends. I think the Canadian government is taking a very narrow approach to all this and they're not going to be happy."

"Nothing in the agreement envisions this kind of project," said Christie.

"This is pretty much untested waters. I don't think anyone really knows for certain how things will turn out. I suspect the courts will back the government."

Health Canada says facility could raise concerns

For-profit health facilities do exist in B.C. and Ontario, but Christie says most are the product of years of negotiations with federal and provincial governments.

Private clinics like the Cambie Surgery Centre in Vancouver offer specialized procedures, like cosmetic, laparoscopic and orthopaedic surgeries.

Louie said the Westbank First Nation's hospital would perform various medical procedures, including elective heart surgery, but won't provide emergency services, obstetric or psychiatric care.

In a statement to the CBC, Health Canada said while health care is a provincial responsibility, the federal government could become involved if the hospital begins charging patients for surgeries covered by Canada's medicare system.

"The Canada Health Act requires that all insured persons, defined under the Act as residents of a province or territory, have reasonable access to insured hospital and physician services on a prepaid basis, and on uniform terms and conditions," wrote Health Canada.

"This proposed health facility would raise Canada Health Act concerns if insured persons are charged for insured health services provided there."