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The exterior of the Cambie Surgery Centre is pictured in Vancouver, Nov. 18, 2019.JONATHAN HAYWARD/The Canadian Press

British Columbia’s top court has ruled that a medicare law that prohibits patients from paying for faster access to health care does not violate their constitutional rights, even if they must endure longer waits in the public system and risk poorer health outcomes.

The decision, released on Friday, is the latest in a 13-year legal battle. The plaintiffs in the case say they will appeal to the Supreme Court of Canada.

Lawyers for the plaintiffs – led by Brian Day, an orthopedic surgeon and chief executive officer of Cambie Surgeries Corp. – had argued that provisions of B.C.’s Medicare Protection Act violated the constitutional rights of patients, preventing them from making their own health care decisions. They invoked Section 7 of the Charter of Rights and Freedoms: the right to life, liberty and security of the person.

A three-judge panel with the B.C. Court of Appeal dismissed the challenge in a 142-page decision. Chief Justice Robert Bauman and Justice David Harris said that although the provisions do deprive some patients of their rights to life and security of the person, they do so in accordance with principles of fundamental justice because they ensure public health care is sustainable.

Justice Lauri Ann Fenlon, in a concurring opinion, found it to be “more than incommensurate to ask patients to risk irremediable harm and increased risk of death” to preserve the public health care system. However, she found that the breach of Section 7 is justified under Section 1 – that freedoms set out in the Charter can be subject to reasonable limits.

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While the justices found problems with the earlier decision, they nonetheless ruled against Dr. Day.

“In our view, the judge erred in finding the impugned provisions did not deprive some patients of the right to life, and by underestimating the extent of the deprivation of the right to security of the person,” the justices wrote. “However, we do not think he erred in concluding that any deprivations were in accordance with the principles of fundamental justice. Accordingly, we conclude that the judge did not err in finding that s. 7 of the Charter had not been breached.”

Dr. Day said while his team was disappointed with the decision and felt there were “many errors,” they will take positive aspects of the court’s judgment to the Supreme Court.

In an interview, Dr. Day said his team will focus largely on the fact that the appellate court judges unanimously agreed that the legislation interferes with some patients’ rights to life and security of the person, and Justice Fenlon’s invocation of Section 1 “to override those rights.”

“This Section 1 thing is, according to our lawyers, very unusual,” Dr. Day said.

B.C. Health Minister Adrian Dix said he was “very pleased” with the ruling and that the province will continue working to reduce waits for surgery. His federal counterpart, Jean-Yves Duclos, said the decision validates his government’s belief that Canadians who require medically necessary care should be able to receive it based on need and not the ability or willingness to pay.

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“Patient charges – whether they take the form of charges at the point of service or payment for private insurance – undermine equity,” Mr. Duclos said in a statement.

Melanie Bechard, chair of Canadian Doctors for Medicare, an intervenor in the case, said the decision affirms that privately funded health care is likely to be more harmful than helpful for the vast majority of patients. Still, she acknowledged that wait times are a real problem.

“I really hope that we can work together to focus on things that will actually help to improve the health system, like adopting a centralized wait list and appropriately funding our public health care system to make sure we have the resources we need to care for patients properly,” she said.

Tom McGregor, a patient intervenor who spoke about his struggles with muscular dystrophy, said he was relieved by the decision.

“I’m a difficult case,” he said. “I don’t have the money to get everything I need in the system we have now, never mind a private system.”

Mr. McGregor said he hopes the Supreme Court of Canada will come to the same conclusion, but lamented that the resources for the legal battles could have gone into improving the health care system.

Dr. Day launched the legal action in 2009, and it landed in B.C. Supreme Court in 2016 with support from four of his patients. The court heard from more than 100 witnesses. In September, 2020, B.C. Supreme Court Justice John Steeves released an 880-page judgment upholding the provisions of the act.

At trial, lawyers for the plaintiffs said the government was inhumane for failing to deliver timely access to health care yet making it unlawful for citizens to take matters into their own hands.

They sought to overturn provisions of the Medicare Protection Act that prohibit physicians from accepting pay from both public and private purses, limit extra billing, and ban health insurance for services that are covered under the public plan.

The defendants – the attorney-generals of B.C. and Canada – and intervenor groups argued that the case was about corporate greed, not health care, and said that the very foundation of medicare could be upended if the plaintiffs won.

A public health care system already debilitated by staff shortages would get worse if doctors and nurses were pulled to a private system, they said. The very people for whom medicare was designed – the elderly, the disadvantaged, and those living with mental or complex chronic illnesses – would suffer most.

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