Access to quality health care is a fundamental right that should not be determined by one's ability to pay.
And yet, 14 years ago, the CEO of a BC-based for-profit clinic launched a legal battle that aimed to dismantle key protections in the BC Medicare Protection Act ensuring equitable access to care. On April 6, 2023, that battle came to a close when the Supreme Court of Canada released its decision to dismiss Cambie Surgeries Corporation’s application for leave to appeal.
The Supreme Court of Canada’s dismissal means that the concurring decisions at the BC Supreme Court and BC Court of Appeal stand. This affirms the principle, enshrined in the Canada Health Act, that we are all entitled to health care based on need, regardless of our ability to pay.
What does the Supreme Court’s dismissal mean?
At the heart of the case was an attempt to strike down provisions in the BC Act that prohibit physicians from extra billing patients (whether out-of-pocket or through private duplicative insurance that covers what’s already covered under the provincial health plan) and working in “dual practice” (billing both patients and/or the province for the same medical services). Enabling extra billing and/or dual practice would have created strong incentives for a parallel profit-driven health care system, giving preferential access to patients who can afford to pay privately to jump the queue.
The appellants argued that a duplicative system was necessary to reduce surgical wait times. In fact, studies across the world and in Canada have shown that wait times in the public system increase as physicians and allied health professionals are drawn away from the public system. The landmark BC Supreme Court decision in the case found that the evidence overwhelmingly showed a strong connection between duplicative private healthcare and increases in wait times in the public system.
While the appellants argued that this case was about an individual's right to access private health care, the reality is the case was always about how physicians bill for their services and protecting the profits of investor-owned corporations by enabling them to effectively be subsidized by the public system. There is no ban on private, for-profit clinics operating in BC. In fact, doctors in BC have always had the option to not enroll in the provincial plan (MSP).
Non-enrolled physicians in BC can charge patients out of pocket (even for services and procedures that would normally be covered under the public plan) so long as those services are not provided in a hospital or community care facility. But for years, doctors working at Cambie Surgeries Corporation opted not to unenroll and contravened the law by billing both the province and their patients.
With the Supreme Court of Canada’s dismissal, access to care based on need and not ability to pay remains the law of the land and the province can finally begin to enforce the law and crack down on illegal extra billing.
Where do we go from here?
The end of this decades-long legal battle is a victory for the Canadian Doctors for Medicare, the BC Health Coalition, as well as our members, allies, and the broader public who have supported the savemedicare campaign over the years.
But, the end of this case doesn’t shut the door on for-profit health care altogether.
We need to continue advocating for public solutions and public health policies that strengthen our health care system. At the same time, we continue to raise the alarm in other areas of our health care system where for-profit interests are draining staffing capacity and resources.