After several years of legal maneuvering and actual court time spanning over 17 months, final arguments are set to proceed in the Charter challenge against public health care this month. The government of British Columbia, The Attorney General of Canada and a coalition of interveners representing patients, Canadians Doctors for Medicare and the BC Health Coalition have been defending public health care against Brian Day under the guise of Cambie Surgical Corporation along with some of his patients. Day is charging that the BC Medicare Protections Act has denied Charter Rights to some individual patients with the bans on physician extra-billing and duplicate private insurance for medically necessary procedures. His challenge is seeking to have these regulations eliminated, opening the door for the creation of a second private tier of health care in British Columbia. In order to succeed, Day’s lawyers need to prove that the individual patients named in the Charter challenge have suffered directly from the regulations they seek to eliminate. The plaintiffs have not proven their case.
Second, they have not proven that the regulations that exist to protect public health care are a cause of lengthy wait times for medical procedures.
The final argument from Day’s legal team does not address the claim of individual plaintiff rights directly. They seek to expand their claim to a broad indictment of the public health care system’s inability to deliver timely care. Their arguments rest on wait time statistics and generalizations about the negative impact of waiting for surgery. They do not address the specifics of the patient plaintiffs whose rights are claimed to have been denied.
The plaintiffs also claim that allowing the development of a private tier for health care will not harm the public system which is not their case to prove but a rear-guard action against the section 1 protection in the Charter (which allows the state to enact public policy in the interests of the entire population, even if it overrides some individual rights.) And, in fact they argue that private health care has been operating in BC for over 20 years without harm to the public system. Yet they argue wait times have deteriorated in that same time period. Either private care cannot alleviate wait time problems and it does harm to the public system – or their claim that there already is two-tier is bogus.
Finally, there are no absolute rights denied by the MPA. The ban on extra-billing and duplicate private insurance are not bans to private health care. Patients are free to seek private care and physicians are free to opt out of the public system. What is banned are taxpayer subsidies to private profits. Day has argued that these bans effectively eliminate the development of a private tier because it is not economically viable without extra-billing, higher fees and private duplicate insurance. Therefore, he has to prove that these regulations themselves have caused suffering of his patients, which is not proven.
Most importantly, at issue is the protection of the public health care system where care is delivered to all on a universal plane – based on need and not on the ability to pay.
The defendants have demonstrated through a series of expert witnesses that two-tier health care will harm public health care allowing those with the most resources to seek and access faster, better care. The defendants have also proven that two-tier health care leads to a drain of resources from the public system. Two-tier health care will cost the government more money in maintaining a public health care system both with higher administrative costs and the costs of additional regulation of private players. Looking at evidence around the world, two-tier health care has demonstrable and measurable negative impacts on public care; particularly for the most vulnerable.
On the crucial issue of wait times, the defendants have shown that there are solutions within the public system. The BC government has made progress on wait times, while in systems with two tiers such as Australia and Britain wait times in the public system have worsened, while wait times for only the wealthy have improved.
Finally, the defendants have shown that the regulations that Day seeks to get rid of are crucial to protecting the integrity and fiscal sustainability of public health care. And further, that Day (the corporate plaintiff) have a vested financial interest in striking down the regulations that protect public health care.