Health care battle in judge’s hands but expected to land in Canada’s top court

VANCOUVER — A judge ended the last day of a nearly four-year trial by hinting that no matter which side wins in the fight over the expansion of private health care in British Columbia, the case will ultimately be decided by the Supreme Court of Canada.

“We’ve had some good times and we’ve had some other times,” B.C. Supreme Court Justice John Steeves told lawyers for Canada, British Columbia and those representing a group of plaintiffs led by orthopedic surgeon Dr. Brian Day, who heads Cambie Surgeries Corp.

Steeves said Friday that after he issues his ruling, which could be months away, he’ll “join the rest of the world” in looking forward to the progress of the case.

Day opened the Cambie Surgery Centre in 1996 and launched court action against the B.C. government in 2009 over sections of the Medicare Protection Act. It prohibits doctors from billing the government for work they do in the public system while also earning money from private clinics as well as billing patients or their insurance companies.

The case landed in B.C. Supreme Court in September 2016, with Day maintaining patients have a constitutional right to private surgery or diagnostic tests if they have to wait too long in the public system.

One of his lawyers, Peter Gall, concluded the last of about 200 days of the trial by saying the threshold for when patients should get treatment in private clinics is when they’ve waited beyond wait-time benchmarks established by the province.

“We know there’s a risk when you cross that maximum acceptable wait-time limit,” Gall said, adding the government would be preventing people from protecting their health by not allowing them to seek private treatment.

Health ministers across Canada agreed to reduce wait times in 2004 in five key areas — cancer treatment, cardiac care, diagnostic imaging, joint replacement and sight restoration such as cataract surgery. Benchmarks were set the following year for acceptable wait times.

Figures from the Canadian Institute for Health Information show that in 2018, the benchmark of 182 days for knee replacements, for example, was met 59 per cent of the time in B.C., up from 47 per cent two years earlier.

Robert Grant, another lawyer for Day, said government lawyers failed to provide adequate evidence suggesting wait times would increase for the public system if private clinics were allowed to expand and they also didn’t provide conclusive evidence that doctors and nurses would leave for jobs in the private sector.

He said government lawyers’ assertions that Canada’s health-care system would end up like that of the United States aren’t based on reliable data but that any changes brought on by a successful court challenge may be more in line with the United Kingdom, where private surgeries are done in the public system.

However, Dr. Richard Klasa, a board member of Canadian Doctors for Medicare, one of the interveners in the case, said outside court that Canada’s proximity to the U.S. would suggest an American-style system — complete with multiple insurance companies — is more likely to become a reality in this country if the current legal provisions are struck down.

“For-profit health insurers are salivating to be able to get into the Canadian market,” said Klasa, who’s a retired oncologist. “Basically, they see Canada as a place almost the size and almost the wealth of California, which from their standpoint doesn’t have any health care.”

Klasa, who was also a scientist at the BC Cancer Research Centre, said cancer patients fare much better in Canada compared with either the United States or most of Europe.

“That’s because cancer care is quite comprehensive,” he said, noting drugs are covered for cancer patients under Canada’s universal health-care system.

Day walked out of court on Friday saying he fully expects the case to land at the Supreme Court of Canada because private health care is a right that should be extended beyond B.C.

“Canada is the only country on Earth where a citizen is not allowed to purchase private insurance,” he said. “If you were told it was going to be six weeks before you could get a biopsy you should have the right to have private insurance kick in so you could get that done right away. If there was a cancer growing in any of us, we would want to reserve that right.”

This report by The Canadian Press was first published Feb. 28, 2020.

Camille Bains, The Canadian Press