Hearings have begun at the British Columbia Supreme Court in a long-anticipated legal challenge to the publicly funded Canadian health system. The plaintiffs -- led by Dr. Brian Day of Cambie Surgery Centre -- allege that medicare violates the Charter by forcing patients onto long wait lists for care.
By way of remedy, Day and his colleagues are not asking the government to reduce wait times for all patients. Too bad.
Instead, they are asking the court to overturn the law that stops the sale of private insurance covering medically necessary care. They are also asking the court to overturn the law against dual practice that requires doctors to choose whether to work for the public system or unenroll from medicare and work for the private sector. They also want to overturn prohibitions on extra-billing so that physicians can charge whatever they wish for the care they provide, whether in public hospitals or in private clinics.
In thinking through what this legal challenge could mean for ordinary Canadians, the standard investigative question, "who benefits?" is a good place to start.
The physicians spearheading these challenges certainly stand to benefit handsomely.
If the Cambie case succeeds, scores of private buyers will join the bargaining table, driving up prices for physician services.
Under the status quo, most physicians are locked into fee-for-service rates negotiated with the provinces. If the Cambie case succeeds, scores of private buyers will join the bargaining table, driving up prices for physician services and diverting resources to the highest bidder irrespective of medical need.
The physicians involved in the Cambie trial protest that they have only medicare's best interests at heart. They point to the many western "European" nations that have two-tier health systems which are purportedly the envy of the world. If only Canada would allow greater private payment, we are told, the invisible hand of the market would lead us to join their ranks.
Unfortunately, it's not that simple.
Proponents of the "European" model of health care never tell us if it's the French, Irish, English, Dutch, German or Italian model we are meant to be following -- they are all distinct.
Doctor Brian Day. (Photo: Darryl Dick/CP)
In England, for example, specialists working in the public system are salaried and contractually bound to a full-time, 40-hour work schedule, leaving them very little time to moonlight in the private sector.
A contract binding specialists to 40 hours a week in the public system is a viable option in England, where physicians are salaried. It is not a viable option in Canada, where physicians have grown accustomed over a half-century to a much higher level of independence.
Indeed, any Canadian government that attempted to forcibly move large numbers of physicians from fee-for-service payment to salary would find itself in the middle of physician strikes and further constitutional challenges.
The rub is that private health insurers must offer coverage to everybody and cover almost everything.
A superficial look suggests that private insurance now plays a very large role there and so it must be the kind of two-tier system we are looking for. But in fact, there is no separate public system with a private tier: in the Netherlands, the private health insurance system, heavily regulated, is the public system.
The law requires that all Dutch citizens over 18 buy private health insurance (and their employers contribute to the cost). The market is heavily regulated in an attempt to achieve access and equity goals. The rub is that private health insurers must offer coverage to everybody and cover almost everything. This means private insurers can't cherry pick the healthy and wealthy.
When the Cambie challengers and proponents of privatization speak of a two-tier health care system, they insist there would be a free public health-care system left behind with just a small private tier on the top. That is clearly not the Dutch model.
In a complex system like health care, it is purposefully naive to suppose that Canada can easily go shopping among the health-care models of western Europe. Selecting particular features from European health systems and pasting them into Canadian medicare will not magically give us a "European" model.
It is certainly true that Canadian medicare is in need of improvement. On that point all sides agree. And Canadians need to be assured that medicare can deliver timely care to them when they are in greatest need.
A Patient Ombudsman in each province -- with real teeth -- would be an important start to help patients that fall through the cracks get timely, quality care.
As Canadians, we pay a great deal of taxes towards our publicly funded health-care system. We deserve timely care and we shouldn't have to throw ourselves at the mercy of the markets to get it.
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Former President Theodore Roosevelt champions national health insurance as he unsuccessfully tries to ride his progressive Bull Moose Party back to the White House. (Photo by Topical Press Agency/Getty Images)
President Franklin D. Roosevelt favors creating national health insurance amid the Great Depression but decides to push for Social Security first. (Photo by Keystone/Getty Images)
Roosevelt establishes wage and price controls during World War II. Businesses can't attract workers with higher pay so they compete through added benefits, including health insurance, which grows into a workplace perk. (Photo by Hulton Archive/Getty Images)
President Harry Truman calls on Congress to create a national insurance program for those who pay voluntary fees. The American Medical Association denounces the idea as "socialized medicine" and it goes nowhere. (Photo by Keystone/Getty Images)
John F. Kennedy makes health care a major campaign issue but as president can't get a plan for the elderly through Congress. (Photo by Keystone/Getty Images)
President Lyndon B. Johnson's legendary arm-twisting and a Congress dominated by his fellow Democrats lead to creation of two landmark government health programs: Medicare for the elderly and Medicaid for the poor. (AFP/AFP/Getty Images)
President Richard Nixon wants to require employers to cover their workers and create federal subsidies to help everyone else buy private insurance. The Watergate scandal intervenes. (Photo by Keystone/Getty Images)
President Jimmy Carter pushes a mandatory national health plan, but economic recession helps push it aside. (Photo by Central Press/Getty Images)
President Ronald Reagan signs COBRA, a requirement that employers let former workers stay on the company health plan for 18 months after leaving a job, with workers bearing the cost. (MIKE SARGENT/AFP/Getty Images)
Congress expands Medicare by adding a prescription drug benefit and catastrophic care coverage. It doesn't last long. Barraged by protests from older Americans upset about paying a tax to finance the additional coverage, Congress repeals the law the next year. (TIM SLOAN/AFP/Getty Images)
President Bill Clinton puts first lady Hillary Rodham Clinton in charge of developing what becomes a 1,300-page plan for universal coverage. It requires businesses to cover their workers and mandates that everyone have health insurance. The plan meets Republican opposition, divides Democrats and comes under a firestorm of lobbying from businesses and the health care industry. It dies in the Senate. (PAUL J. RICHARDS/AFP/Getty Images)
Clinton signs bipartisan legislation creating a state-federal program to provide coverage for millions of children in families of modest means whose incomes are too high to qualify for Medicaid. (JAMAL A. WILSON/AFP/Getty Images)
President George W. Bush persuades Congress to add prescription drug coverage to Medicare in a major expansion of the program for older people. (STEPHEN JAFFE/AFP/Getty Images)
Hillary Rodham Clinton promotes a sweeping health care plan in her bid for the Democratic presidential nomination. She loses to Obama, who has a less comprehensive plan. (PAUL RICHARDS/AFP/Getty Images)
President Barack Obama and the Democratic-controlled Congress spend an intense year ironing out legislation to require most companies to cover their workers; mandate that everyone have coverage or pay a fine; require insurance companies to accept all comers, regardless of any pre-existing conditions; and assist people who can't afford insurance. (Alex Wong/Getty Images)
With no Republican support, Congress passes the measure, designed to extend health care coverage to more than 30 million uninsured people. Republican opponents scorned the law as "Obamacare." (Mark Wilson/Getty Images)
On a campaign tour in the Midwest, Obama himself embraces the term "Obamacare" and says the law shows "I do care." (BRENDAN SMIALOWSKI/AFP/Getty Images)
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