British Columbia’s highest court has dismissed the appeal of a BC Supreme Court decision on whether patients waiting for care have a right to pay privately to receive healthcare services.
"We accept the personal interest British Columbians have in avoiding a lengthy wait when they have resources to avail themselves of private care to avoid an increased risk of death. We do not minimize the seriousness of that issue," B.C. appeal court justice Robert Bauman wrote in a 142-page judgement released today.
"But we also recognize that the objective of the MPA [Medicare Protection Act] includes ensuring that individuals without the ability to pay are not thereby deprived of medically necessary care."
Justice Bauman, along with Justice David Harris, agreed with the lower court that the ban on private insurance and extra-billing rights for doctors did take away the rights of some people to life, liberty, or security, but the restrictions were in accordance with fundamental justice.
The third judge on the panel, Justice Lauri Ann Fenlon, went a step further in saying the restrictions were “grossly disproportionate’ to the concept of fundamental justice.
In a decision separate from Bauman’s, Justice Fenlon wrote that the majority ruling doesn’t address the problems in Canada’s healthcare system. However, under Section 1 of the Charter, the provincial healthcare act can be justified as a reasonable violation of rights.
She wrote: “The conclusion we are compelled to reach is far from a satisfactory one. The record establishes that thousands of patients every year are waiting beyond medically acceptable wait times for care. Those thousands include many, perhaps even a majority, who could afford private insurance and private care if the impugned provisions did not effectively prevent a private system from emerging.
She added that “even without private insurance, many could and would choose to pay for basic surgeries for cataracts, hips, knee replacements, and for diagnostic tests. It is this broad range of British Columbians of relatively ordinary means who are being denied a remedy by the application of s. 1 [of the Charter].” Justice Fenlon also noted the “truly wealthy will simply cross the border to avail themselves of the private care available in the United States.”
Wrote Fenlon: “We 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.”
Colleen Flood, a professor in the Faculty of Law at the University of Ottawa and the University Research Chair in Health Law and Policy, notes that the appeal court was “very cognizant of the fact that their ability to review the trial judge’s decision was limited in some very important ways.”
She adds that thee 800-plus-page decision was very comprehensive, “leaving no stone unturned.” And regardless of their own ideological viewpoints, Flood, who is also co-author of the book Is Two-Tier Health Care the Future? says all three judges were “very respectful of the trial judge’s findings.”
Colleen Flood
Dr. Brian Day, the owner of Vancouver's Cambie Surgery Centre, and a former president of the Canadian Medical Association, has for more than 13 years been challenging the law limiting private healthcare, arguing that patients have a constitutional right to pay for healthcare services when if wait times are too long.
Day's legal challenge argued that parts of the province’s Medicare Protection Act violated the Canadian Charter of Rights and Freedoms, specifically violated Section 7, which guarantees the life, liberty and the security of the person.
However, Supreme Court justice John J. Steeves ruled in a 2020 decision following a 194-day trial that the current limits on private healthcare are justified, even if some patients don’t receive care quickly. He wrote that the laws limiting private healthcare are meant to “preserve and ensure the sustainability of a universal public health-care system that ensures access to necessary medical care is based on need and not on an individual's ability to pay."
He wrote “I have found that the impugned provisions do not deprive the right to life or liberty of the patient plaintiffs or similarly situated individuals,” And while the patient plaintiffs’ rights to security of the person were limited by the wait times, the plaintiffs “have not demonstrated that this limit . . . is not in accordance with the principles of fundamental justice.
Specifically, the provisions in question “are not arbitrary, overbroad or grossly disproportionate,” he wrote. “There is a rational connection between the effects of the impugned provisions and the objectives of preserving and ensuring the sustainability of the universal public healthcare system and ensuring access to necessary medical services is based on need and not the ability to pay.”
As well, the effects of the provisions on patients whose security of the person may have been violated, “is not grossly proportionate to the legislative purpose.
Flood says that theoretically the Canadian public healthcare system could disintegrate to a level where patients’ rights would be violated, “but we aren’t there yet,” and for now, “the evidence is pretty clear that having a two-tier healthcare system would generally only benefit the wealthy.”
It therefore becomes a policy decision on the part of the federal and provincial governments to improve the current system to reduce waiting times, Flood says.
“The BC appeal court has upheld the notion that allowing a two-tier healthcare system with private options is a bad idea in that it would provide incentive for more physicians, nurses and other healthcare professionals to divert their time from the public system to the private system.”
Day has said today’s ruling will likely be appealed to the Supreme Court of Canada, and Flood says that the SCC would probably want to look at the lower court decisions, especially as they pertain to Section 1 of the Charter.
She notes that the majority judgement stays within the confines of Section 7 and doesn’t go to Section 1 for an answer. “The majority decision says, look, we’ve got a trade-off on competing rights: rights of patients having to wait too long who might be able to buy private care, and the rights of all the people who are left back in the public health care system.” The majority decided in favour of protecting the public system.
Justice Fenton took a different stand, saying the rights of some have been violated, but that Section 1 could override that.
“So, the Supreme Court of Canada may have something to say about the Section 7 analysis, and Dr. Day will likely want his day in that court.”
