A Charter challenge to the foundations of Canada’s health-care system is finally scheduled to begin hearing closing arguments on Monday, 10 years after the pugnacious private-medicine advocate Brian Day asked the courts to undo a law that effectively bars patients from paying for necessary medical care.
At stake in the unusually long British Columbia trial – which has already consumed 179 days of court time over nearly three years – is nothing less than the survival of medicare’s central organizing principle that hospital and physician care should be doled out first to those who need it most, not to those who can pay the most.
“It absolutely could set a precedent for the rest of Canada,” said Rupinder Brar, a Vancouver addictions-medicine physician and member of the board of Canadian Doctors for Medicare, an intervening party in the case. “I think all Canadians should be very concerned because it’s in the very fabric of who we are as a nation that we provide care for one another when we need it.”
Dr. Day argues there is another, equally important principle at play: the Charter-protected right to life, liberty and personal security, which he argues is violated by interlocking legal provisions that effectively prohibit patients from buying private insurance or paying out of pocket to relieve their suffering when the public system can’t help them in a timely way.
In an interview, the 72-year-old orthopedic surgeon said he has never been interested in dismantling Canada’s public health-care system.
The marathon legal battle, he said, has always been about adding more private options to the public system, not unlike many European countries that provide faster access and spend less per capita on health care than Canada.
That stance has made the Liverpool-born chief executive officer and medical director of the private Cambie Surgery Centre in Vancouver something of a bête noire to medicare’s defenders and their political allies.
Two political parties under three premiers in B.C. have fought Dr. Day’s claim; the federal government joined the case as an intervenor after Justin Trudeau’s Liberals won the 2015 election.
“The only good thing about the trial process," Dr. Day said, "has been that it has moved it out of the realm of politicians. It’s now in the hands of a judge. And that’s that.”
The question soon to be in the hands of B.C. Supreme Court Justice John Steeves is whether a handful of provisions in B.C.'s Medicare Protection Act violate Canada’s Charter of Rights and Freedoms.
The B.C. law doesn’t explicitly prohibit well-off patients from buying their way to the front of the queue. Rather, it dampens the market for private care by prohibiting physicians from “enrolling” to work in the public and private systems at the same time; by forbidding enrolled doctors from charging patients for publicly covered services; and by barring the sale of private insurance for medically necessary hospital and doctor care. (Private insurance is, of course, widely available for care not covered by Canada’s “universal” system, which does not include prescription drugs, most dental care, home care and other services provided outside hospitals and physicians’ offices.)
For more than two decades, the B.C. government looked the other way while Dr. Day’s Cambie Surgery Centre, which opened in 1996, and other private surgical clinics bucked the law. The clinics did a brisk – and perfectly legal – business operating on patients exempt from the law, mainly injured workers whose care was paid for by the workers’ compensation system. But the private clinics also treated regular patients who paid out of pocket for swifter diagnostic testing, specialists’ assessments and surgeries, violating a law that Gordon Campbell, B.C.'s Liberal premier from 2001 and 2011, said in an affidavit his government chose not to enforce – just like its NDP predecessors.
“Allowing British Columbians to obtain private medically necessary services would not result in any harm to either the accessibility or viability of the public health-care system, as demonstrated by the experience over the past 20 years in British Columbia, when the prohibitions on access to diagnostic and surgical services were not enforced,” Dr. Day’s lawyers say in their final arguments, already submitted in writing. “Further, the government cannot justify imposing severe mental and physical harm on some residents on the basis of an ideological commitment to perfect equality in access to treatment, which is neither created by the legislation in question nor obtained in practice.”
Although Cambie Surgeries Corp., along with a sister clinic and four patients, are technically the plaintiffs in the case, Dr. Day is undoubtedly its face.
The B.C. government, in its written closing arguments, said the history of the proceedings – which include an unsuccessful campaign by Dr. Day to block a provincial audit of his clinics – make it apparent that “the plaintiffs do not conceive of this as an actual bona fide constitutional challenge, but rather as a form of political theatre, and an attempt to force change on the health-care system for the financial benefit of the corporate plaintiffs.”
That view is shared by Canadian Doctors for Medicare, the BC Health Coalition and a group of patients backed by the British Columbia Nurses’ Union (BCNU,) all of which are intervenors in the case. The BCNU set the stage for the case more than 15 years ago when the union agitated for the government to enforce the law against private clinics charging patients out of pocket for medically necessary care. Contrary to Dr. Day’s view that private clinics act as a release valve for an overburdened public system, BCNU president Christine Sorensen fears that, if Dr. Day triumphs, public wait times will get worse, with private clinics cherry-picking uncomplicated patients and luring away health-care workers. “And at the end of the day," Ms. Sorensen said, “the physicians and nurses and other health-care professionals who work in these facilities can’t be in two places at one time.”
The BC Health Coalition, Canadian Doctors for Medicare and the patients and doctors who intervened with them, described in their written closing arguments how they believe shortages of anesthesiologists, nurses and doctors contributed to waiting lists in the public system. One doctor who testified in the case made $965,826 in 2016-17 working for Cambie and the Specialist Referral Clinic, another plaintiff in the case – about four times as much as what he usually earned in public billings.
The question of how private, paid-for options affect waiting lists is one of many that have been hashed out as more than 100 witnesses, including Dr. Day and patients on both sides of the case, testified in Justice Steeves’s courtroom.
Exactly how much public money has been spent fighting the case, the B.C. government refuses to say.
The Canadian Constitution Foundation, a legal charity that describes itself as a defender of constitutional liberties, filed an access-to-information request to find out how much the provincial government had spent fighting the case from 2009 to 2017.
When the Office of the Information and Privacy Commissioner for British Columbia ruled the information should be released, the NDP government appealed to the B.C. Supreme Court and won, meaning the figure will stay secret.
The Canadian Constitution Foundation has raised more than $5-million for Dr. Day’s side of the case since 2011, said Joanna Baron, the foundation’s executive director. She said more than 1,000 people have contributed, some of them small donors who give $50 a month, others high-net-worth individuals who’ve given large sums to the cause.
One of those high-net-worth supporters is Anthony Fell, a former chairman of RBC Capital Markets who helped organize a fundraising lunch for the case at the Toronto Club last month.
Dr. Day and the plaintiffs’ lawyer, Peter Gall, flew in to address the Oct. 8 gathering, which included co-host Prem Watsa, the billionaire chief executive of Fairfax Financial Holdings Ltd., and former B.C. premier Gordon Campbell, among others.
“Our system is high-cost and mediocre at best,” Mr. Fell said during an interview, after retrieving a binder about Dr. Day’s case from among the tidy rows in a glass case in his office at Toronto’s Royal Bank Plaza. “The population is aging and the government can’t afford to keep up. We see the major hospitals across this country – including on [Toronto’s] University Avenue – doing what they call hallway medicine or hallway treatment. And that’s not good enough.”
It’s true that Canada spent more on health care per person ($6,448) and as a percentage of GDP (10.7 per cent) in 2018 than the Organization for Economic Co-operation and Development average ($5,175 per person and 8.8 per cent of GDP) and that Canada is often ranked poorly on wait times and access to physicians in comparative international research. However, there are deep divisions about whether Dr. Day’s prescription for more privately paid-for care would cure would ails the system.
Debbie Waitkus waited 27 months for a date for spinal surgery for her son, Walid Khalfallah, at BC Children’s Hospital, before she gave up and took the teenager to the Shriners Hospitals for Children in Spokane, Wash. He suffered a stroke on the operating table in 2012 and wound up paralyzed from the belly button down, a heart-breaking outcome his mother attributes, in part, to how severely her son’s spine deteriorated while he languished in a Canadian queue.
Mariël Schooff, meanwhile, was told that she could wait as long as five years in British Columbia’s public system for an endoscopic surgery to relieve the chronic sinus infections that had left her in excruciating pain. Fearing she couldn’t wait that long, Ms. Schooff borrowed money against her home to pay $6,125.75 to have the procedure performed in a private clinic in 2002 (not Cambie) by the same doctor who would have, eventually, operated on her for free at a public hospital.
Although Ms. Waitkus and Ms. Schooff both faced long waits in the public health-care system, they wound up testifying on opposite sides of the case. Dr. Day invited Ms. Waitkus to become one of the plaintiffs in the case, while the BCNU recruited Ms. Schooff, now 73, to become a patient intervenor. She testified that her sinus surgeon shouldn’t have asked her to pay out of pocket for faster access at his private clinic.
For Ms. Waitkus, a community nurse in Kelowna, the case is not something she dwells on daily as she cares for her son, who is now 23 and attending a college program for adults with special needs.
Testifying on Oct. 4, 2016, she sobbed as she described the panicked months she spent begging anyone who would listen to schedule a surgery to correct her son’s kyphosis, a dramatic forward bend in his spine.
Ms. Waitkus is deeply upset at those who suggest that Dr. Day’s case could wind up undermining the public health-care system. She said in an interview that she only wants more options for patients like her son. “We do have a strong public health-care system right now, we really do,” she said. "But waiting has become part of our health-care system.”
For his part, Dr. Day said he wishes he had never started Cambie or his long war with the B.C. government. The experience has contributed to turning all six of his children, who range in age from 20 to 42, off careers in medicine. Two of three of his younger children would like to be lawyers, he said, laughing.
“I would have been personally much better off, both financially and family-wise, if I’d never gotten into this,” he said. “But now that we’ve come this far, we’re not going to quit.”
However Justice Steeves rules, the case is expected to be appealed to the Supreme Court of Canada.
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Editor’s note: (Oct. 14, 2019) An earlier version quoted The Canadian Constitution Foundation executive director from an interview in which she estimated that nearly 200 people have contributed to the clinic’s legal case. She later said that, in fact, there were more than 1,000 donors.