B.C. Court of Appeal upholds ruling in private health care case

In a blow to those pushing for private health care, B.C.’s highest court has upheld a B.C. Supreme Court ruling against the Cambie Surgeries Corporation.

The owner of the Vancouver-based private surgery centre, Dr. Brian Day, had argued the province’s Medicare Protection Act violates patients’ constitutional rights, but the BC Court of Appeal has found the province’s ban on extra billing and private insurance do not violate the charter.

But the court’s findings are not identical to the B.C. Supreme Court ruling.

In particular, the appeal court found the Medicare Protection Act does deprive some patients of their constitutional right to security of the person and also of their right to life, which is guaranteed under Section 7 of the Charter of Rights and Freedoms. That’s due to the long wait times in the public health care system, which in some cases lead to poor outcomes or even death for patients.

Despite that, two of the three justices in this case have found that the act does not breach Section 7 because the “deprivations” to patients under the act fall within the principles of “fundamental justice.”

In terms of this case, the question of “fundamental justice” had been over whether the deprivations to patients under the act were “arbitrary, overbroad, or grossly disproportionate.”

The court found that even if patients’ Section 7 rights are violated by the act, it would be justified, writing “[w]e reach the decision we do in this case, constrained by the record, and recognizing that the impugned provisions are upheld at the cost of real hardship and suffering to many for whom the public system is failing to provide timely necessary care.”

This is not necessarily the end of this legal debate on private health care, and Day has the option of appealing this decision to the Supreme Court of Canada.

Protections around health care

The BC Health Coalition had warned that the decision in this case could have widespread implications when it comes to B.C. — and even Canadian — health care.

“We have a large body of evidence that tells us that profit-driven health care leads to worse outcomes. It creates huge inequities in access to care, so those with the ability to pay for care and pay for it faster get access,” Andrew Longhurst, a spokesperson for the advocacy group, explained.

“We know that for many people and the vast majority of Canadians — they simply are going to be left behind.”

Longhurst notes the pandemic shone a light on how pay-for-care systems can affect communities, adding in the U.S., death rates exceeded those in Canada and countries with universal health care systems through the crisis.

“What that clearly tells us is public health care needs to be strengthened rather than dismantled, and what is at the heart of this case is really the foundation of public health care in this country,” he told CityNews.

B.C.’s health care system — as well as many others across the country — is currently stretched thin, with staffing shortages and increased demand for treatment over the past few years only adding to the strain.

Friday’s decision comes at a critical time. Longhurst says the evidence shows that the province and stakeholders need to work with the federal government “to strengthen and build back from the pandemic a better health care system.”

Related article: B.C. Supreme Court dismisses constitutional challenge over private health care

As is the case under B.C.’s Medicare Protection Act, charging patients for publicly paid health services is prohibited under the Canada Health Act.

Longhurst notes the case brought forward by Day is “very significant,” adding the ultimate outcome, should he be successful in any potential appeals, could change the current health care system as we know it.

“It’s often been framed as a case about patients’ right to pay for care faster, but what this is actually about is striking down the legislation in B.C. that protects patients from being extra billed or being charged by surgeons and physicians. Right now, we have protections that mean that patients can access care based on their need and not having to fork out thousands of dollars. What this case is really fundamentally about is allowing much more unrestricted ability for physicians and surgeons to bill patients directly,” he said.

Regardless of Friday’s decision, Longhurst believes B.C. and Canada need to step up to improve the health care system.

“I think it speaks to the urgency and the pandemic has really challenged out health care system. But that said, we’ve come out in a much, much better place than a country like the U.S., where it is driven by profits, it is a system oriented around profitmaking,” he said. “In either case, we need to be working on strengthening our public system.”