Doctor’s right to pay for private health care appeal dismissed by BC court

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British Columbia’s highest court has rejected an appeal of a landmark decision upholding the province’s public health care laws.

A three-judge panel of the British Columbia Court of Appeal on Friday rejected Dr. Brian Day’s argument that a lower court judge made critical errors of fact in dismissing his constitutional challenge to a law that prevents patients from accessing private care when wait times in the public system are too long.

In their majority reasons for judgmentChief Justice Robert Bauman and Justice David Harris have written that while long waits for treatment have deprived some patients of their rights to life and security of the person, such violations are permitted under the principles of fundamental justice.

The justices said the laws Day opposes seek to ensure fair delivery of health care and prevent the creation of a two-tier system where access to potentially life-saving treatment is dependent on wealth.

“We accept the self-interest of British Columbians to avoid a long wait when they have the resources to seek private care to avoid an increased risk of death. We are not minimizing the seriousness of this problem”, indicates the judgment.

“But we also recognize that the purpose of the GPA [Medicare Protection Act] involves ensuring that people who lack the ability to pay are not thereby deprived of medically necessary care.”

British Columbia Health Minister Adrian Dix applauded the ruling in a written statement, saying he was “extremely pleased” with the outcome, promising to “vigorously defend” the public system.

Dr. Melanie Bechard, president of Canadian Doctors for Medicare, an intervener in the court case, acknowledged that the public system is under strain, but said there are fair solutions to the issues of wait times and quality of care.

“Allowing doctors to bill patients as much as they want and forcing patients to pay out of pocket or buy private insurance are not among them,” she said in a statement.

The challenge should land in the Supreme Court

The appeals court ruling closes another chapter in a legal saga that began in 2009, but the story is likely far from over. Day has long said he expects to make his case all the way to the Supreme Court of Canada.

Day opened the Cambie Surgery Center in 1996, privately charging for a variety of different procedures, including orthopedic surgeries, screening colonoscopies, and oral and plastic surgery.

Dr. Brian Day, a self-proclaimed champion of privatized health care, is pictured at his office in Vancouver August 31, 2016. (Darryl Dyck/The Canadian Press)

His constitutional challenge, filed with four patients as co-plaintiffs, challenged two sections of the MPA that prevent doctors in British Columbia from charging patients more than the rate paid through the Medical Services Plan (MSP) and which prohibit the sale of private insurance that covers treatment provided under the MSP.

British Columbia Supreme Court Justice John J. Steeves dismissed the challenge in September 2020 in a judgment of more than 800 pages. He said he saw nothing to suggest that unrestricted private health care would reduce wait times in the public system, and in fact, most experts testified that wait times would actually increase.

In their reasons for upholding that judgment, Bauman and Harris acknowledged that much had changed in the past two years and that pressures on the health care system had only increased.

“We acknowledge the crisis caused by the COVID-19 pandemic, resulting in the cancellation or postponement of elective surgeries and other procedures. We are also mindful of the current shortage of family physicians, which limits readily available primary care,” the judges said. wrote.

But they said the current challenges could not be factored into the court’s analysis of the facts.

Dr. Darius Viskontas, left, prepares to remove a cyst from the knee of a male patient, with assistance from Dr. Anne Wachsmuth, center, and operating room registered nurse Miwa Holm, at the Cambie Surgery Center in Vancouver on August 31. 2016. The clinic is at the center of a constitutional challenge to British Columbia health care laws. (Darryl Dyck/The Canadian Press)

Although the appeals court upheld the B.C. Supreme Court’s overall decision to dismiss Day’s challenge, superior court judges said Steeves erred in finding that the MPA does not interfere with the right to life guaranteed by the Charter.

“The risk of death has increased for an unknown number of individuals with life-threatening conditions who wait beyond the benchmark for certain procedures and who, but for the disputed provisions, would otherwise have been able to access care private and lessen the expectation,” they wrote.

Even so, Bauman and Harris stated that violation of Rights guaranteed by section 7 of the Canadian Charter of Rights and Freedoms was justified in order to protect those who cannot afford private care.

The 3rd judge offers different reasons to dismiss the appeal

The third appeals court judge, Judge Lauri Ann Fenlon, agreed with the decision to dismiss Day’s appeal, but found that the long wait times in the public system are “grossly disproportionate” to the purposes of the British Columbia law.

“A system that provides care three years after it is needed could not, except by the most stretched definition, be described as a system that provides access to medical care,” she wrote.

However, she said that this violation of the principles of fundamental justice is justified under Article 1 of the charterwhich allows for “reasonable limits prescribed by law that can be demonstrably justified in a free and democratic society”.

Fenlon wrote that if the current system prolongs suffering and harms those who would be able to afford private treatment, it must consider the common good.

“The negative consequences of removing the contested provisions and allowing private care would cause those who could not access private care – the most vulnerable in society – to wait even longer for care, potentially increasing their risk of harm – beyond that, we have to exist under the current regime,” she said in her concurring reasons.

The initial trial in the Supreme Court of British Columbia lasted 194 days and heard testimony from 17 patients, 36 doctors and 17 health and provincial officials. A total of 590 exhibits were admitted to the file, including 40 expert reports.

The first edition13:16Dr. Brian Day on his efforts for private health care

The owner of the Cambie Surgery Center in Vancouver is talking about his constitutional challenge arguing that Canadians should be allowed to pay for access to private health care.

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