B.C. health care ruling reminds us that courts cannot improve medicare or fix wait times

A victory for medicare? Hardly.

On Thursday, in a much-anticipated judgment, Justice John Steeves of the B.C. Supreme Court dismissed the argument that the constitutional rights of patients and physicians were being violated by limits on access to privately paid surgical services.

Specifically, the decision upholds three provisions of the B.C. Medicare Protection Act that Dr. Brian Day of the Cambie clinic was trying to have struck down: a ban on extra-billing, a prohibition on selling insurance of “medically necessary care” and a prohibition on physicians from practising simultaneously in the public and private systems.

Justice Steeves said all of these restrictions are reasonable.

Within minutes of the 880-page ruling being released, there was a barrage of news releases declaring a “win for medicare” and a “historic victory against profit-driven health care.”

Before we dislocate our shoulders patting ourselves on the back, let’s not forget that medicare is no better today than it was yesterday. More importantly, patients are no better off. (Nor would they have been had the ruling gone the other way.)

After 20 years of legal battles by Dr. Day, including four years on this case alone, we’re left with the status quo.

Waits for surgery are, in many cases, still interminable, and made even worse by the coronavirus pandemic. Claims that more access to private care would solve that backlog problem remain as specious as ever.

But, as Justice Steeves noted, “there is no prohibition on the private delivery of health care” in Canada. In fact, that is one of the principal reasons he rejected the plaintiffs' claims. The six private surgical facilities in B.C. will likely continue to operate.

Canada doesn’t ban private health care. We have among the highest private health spending in the world.

But we also have a bunch of rules that make private medical practice less appealing. Doctors can’t charge more than public rates (no extra billing). In five provinces, there is a prohibition on selling insurance for medically necessary care, so people have to pay out-of-pocket. Some provinces, like B.C., restrict dual practice – doctors can’t bill both public and private insurance.

Dr. Day was trying to eliminate those hurdles. He failed. Again, despite some apocalyptic predictions, it’s not clear what difference it would have made had he succeeded. In 2005, the Supreme Court, in a similar case, struck down Quebec’s law banning private insurance for surgical care, and nothing really changed. This ruling will almost certainly be appealed to the B.C. Court of Appeal and the Supreme Court will likely get another kick at the can.

In Canada, medicare is a philosophy, not a national program.

We have a loose collection of federal, provincial and territorial health insurance programs that are supposed to ensure everyone has equitable access to medically necessary care based on need, not ability to pay.

“Medically necessary” is not well defined, but essentially means hospital care and physician services.

But if care isn’t deemed essential, or if physicians opt out of the public health insurance program (which is allowed in most but not all provinces), then they can charge what they want.

While a publicly funded health system is supposed to provide equitable access to care, access to and navigation of the system can be complicated, which advantages those with education, means and connections.

There are even inequities built into the law. For example, Workers' Compensation clients get preferential treatment and are often treated in private clinics. During the Cambie trial, this was illustrated by the case of a B.C. teacher who injured both his knees, one on the school playground, and the other while skiing on the weekend. Surgery was performed promptly on one knee because it was a workplace, but the teacher had to wait much longer for surgery on the other knee because it was repaired in the public system. One of the great ironies of this case is that many of the clients of Dr. Day’s clinic were publicly funded agencies.

Thursday’s court ruling was welcome. But, above all, it should remind us that the courts cannot improve medicare, or remedy the waiting times problem.

Only forward-looking public policy can ensure timely and equitable access to care, and that’s where we should we be focusing our efforts, not on pesky gadflies like Dr. Day.

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