09/10/2020 19:26 EDT

B.C. Supreme Court Rules Against Legalizing Private Health Care

The judge wrote that lawyers failed to provide evidence that patients’ constitutional rights are being violated.

British Columbia Health Minister Adrian Dix speaks during an announcement about a new regional cancer centre, in Surrey, B.C., on August 6, 2020. THE CANADIAN PRESS/Darryl Dyck

VANCOUVER — British Columbia’s health minister says a judge’s decision against a surgeon advocating for patients’ rights to pay for private care highlights the significant role of the public health-care system as a cornerstone of Canada’s identity.

“Our defence in the case was successful in its entirety,” Adrian Dix said Thursday.

Dr. Brian Day challenge the province’s Medicare Protection Act, which bans extra billing and private insurance for medically necessary procedures.

Justice John Steeves said in a written ruling after a four-year trial that Day and other plaintiffs failed to show patients’ rights are being infringed by the act, adding its focus is on equitable access, not ability to pay.

“Equal or identical care between patients is not part of the purpose of the (Medicare Protection Act) and nor is it achievable,” Steeves said.

Lawyers also failed to provide enough evidence that patients’ constitutional rights are being violated, he said.

Wait times

However, he noted some patients are waiting for elective surgery beyond established wait-time benchmarks because of a lack of capacity in the public system, which deteriorates their condition and reduces surgical outcomes.

Provinces have made attempts to reduce wait times in specific areas, such as cardiac and other surgical care, with the most significant development in 2003 when all the provinces affirmed Canadians should have timely access to insured health services on the basis of need, he said.

Provincial priority codes on what are reasonable maximum wait times for a number of procedures were developed in B.C. with input from medical experts and specialists, Steeves said, adding they are intended to guide the triaging process.

Duplicative private health care “would not decrease wait times in the public system and there is expert evidence that wait times would actually increase,” he said. “This would cause further inequitable access to timely care.”

Day, CEO of Cambie Surgeries Corp., argued wait times in the public system are too long and sometimes exceed those established by provinces in 2005.

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.

Lawyers for both the B.C. and federal governments argued such an approach would erode Canada’s universal health-care system and hurt patients with complex chronic conditions and the elderly.

In April 2018, Dix announced that starting in October of that year, doctors who bill patients extra for services covered by the Medical Services Plan could face initial fines of $10,000 as part of amendments to sections of the Medicare Protection Act that had not been enforced for 15 years.

Dix said the new punishments were necessary because Ottawa had withheld $16 million in health transfer payments over extra billing by private clinics.

However, Day sought and won an injunction in November 2018, when another judge stopped enforcement of parts of the act until their validity could be determined with the trial decision.

Dix said Thursday that a decision on whether fines would be levied will be made after a review of the nearly 900-page ruling.

Private clinics are not illegal, but billing for medically necessary services is a violation of the Canada Health Act.

Dix said private clinics have played a small role when they are contracted to do day surgeries and last year performed about 12,000 procedures out of 300,000 done in the public system.

“The issue here is extra billing and undermining the basis of public health care,” he said.

This report by The Canadian Press was first published Sept. 10, 2020.