Six days before the B.C. Supreme Court was set to begin a long-awaited trial that could alter the public health-care system in B.C. – in fact, in Canada – the provincial government uncovered new documents in its own files that forced another delay.
These are not just a few errant scraps of paper that were somehow overlooked in the past six years of pretrial wrangling, but thousands of pages of Ministry of Health documents that have just made their way to the surface. They relate to surgical waiting lists and physicians' extra billing – the core of the case about the place of private health care in B.C.
Since 2008, the province has sought to tackle illegal billing practices at two private health clinics run by Dr. Brian Day. All the while, the province has been paying annual penalties to Health Canada for violations of the Canada Health Act related to the practices it has not managed to stop.
Dr. Day has made no attempt to hide the fact that, for years, the Cambie Surgery Centre and Specialist Referral Clinic have been breaking the law by charging patients for medically necessary treatment. What is now before the courts is his Charter challenge that argues British Columbians should be allowed to use their own resources to jump to the front of the queue for medical treatment because waiting lists in the public health-care system are unacceptably long.
The trial was set to begin on Monday but now has been postponed as both sides examine the newly found ministry files.
NDP health critic Judy Darcy says she hopes the government will throw everything it can at Dr. Day, because if he wins, she believes, British Columbia will be opening the door to a new two-tiered health-care system for the country.
She isn't convinced the B.C. Liberals wanted to fight this battle.
"I think the government is under tremendous pressure to defend the Canada Health Act," she said in an interview. But at least at the outset, the province needed some prodding to engage.
The B.C. Nurses' Union led the charge in 2003, challenging the provincial government to enforce the law and stop private clinics from treading on public-health turf.
It was 2008 when the province finally sought an audit of the books of Dr. Day's two clinics. The two sides then spent four years arguing about the scope of the audit. Finally, in 2012, the Medical Services Commission concluded the clinics were extra billing patients and threatened an injunction, which is still up in the air.
The audit was limited to a small sampling of a few hundred cases. "The only thing we saw was a one spot-check audit and it showed $150,000 worth of extra billing in a single month," Ms. Darcy said.
"So we are talking about millions of dollars over the years, and nothing has been done about that."
The B.C. Health Coalition is an intervenor in the case. While the province may have been slow to get started, Steven Shrybman, a member of the group's legal team, says he is impressed with B.C.'s case as it stands now. "The province has demonstrated a very serious commitment to this case," he said.
"I can't fault them for the job they have done in defending the validity of our medicare model under the Charter."
Dr. Day has been angling for this day in court for many years, and all the while he says his case has grown stronger as the province's surgical waiting lists have grown.
"This is a case about patients being able to care for their own health when the government won't provide it," he said.
The B.C. Supreme Court will hear, possibly later this spring, his argument that Canadians have a right, under the Charter, to access necessary and appropriate health care within a reasonable time – something he says does not exist in B.C.
"The only way the government can win, in my view, is if they can show that wait lists are not a problem."
Health Minister Terry Lake told reporters last week that the reason some waiting lists are growing is because the health-care system is doing more surgeries. "But I have asked our provincial surgical advisory committee to look at the situation, because I think we can do better … One of my real desires is to reduce those wait times."
That's why those freshly discovered Health Ministry files may be revealing, and if nothing else, Dr. Day's battle may drive the provincial government to find not just the desire, but the means, to take aim at surgical waiting lists.
Justine Hunter