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British Columbia’s highest court upheld a lower court’s decision effectively concluding that people don’t have a constitutional right to pursue private health care when faced with lengthy wait times in the public system. It’s the latest development in a marathon legal case originally filed 13 years ago by Cambie Surgeries Corp. founder Brian Day, who is attempting to challenge the very basis of medicare.

A three-judge panel with the B.C. Court of Appeal on Friday released a 142-page decision that ultimately sided with the B.C. and federal governments’ arguments that allowing private care would endanger the public system.

Here’s what you need to know about the ruling, why the court sided with the governments, and what happens next.

Who is Brian Day and why did he file this lawsuit?

Dr. Day is an orthopedic surgeon and president of the Cambie Surgery Centre, which openly flouts the province’s medicare law by allowing patients to pay out-of-pocket for surgical procedures. In 2009, he filed a legal challenge against the B.C. government in which he argued that patients have the right to pay out-of-pocket for necessary procedures if wait times in the public system are too long. The centre sought to overturn provisions of B.C.’s Medicare Protection Act, including bans on extra-billing and private insurance, by invoking Section 7 of the Charter of Rights and Freedoms: the right to life, liberty and security of the person.

The B.C. government has threatened Dr. Day with fines, but he won a court injunction that prevents the province from enforcing the law until the constitutional case is decided.

André Picard: A court has affirmed access to health care should be based on need, not ability to pay, but this is no time for a medicare victory cry

What is extra-billing?

Extra-billing is when a patient is charged by a medical practitioner for services covered under provincial health insurance. Physicians are prohibited from dipping into both public and private purses for work. This is because B.C.’s legislation states clearly that every resident must have equal access to medicare services regardless of income. There are similar laws across Canada and this principle is enshrined in the Canada Health Act.

What happened at the lower court?

In September, 2020, the B.C. Supreme Court dismissed the constitutional challenge. Justice John Steeves, in an 880-page judgment, said provisions in B.C.’s Medicare Protection Act did not violate patients’ charter rights. He said there was no evidence that anyone died from long waits, but that some patients were deprived of their right to security because of harms caused by excessive waits. However, he ruled this deprivation was in accordance with “fundamental justice” because it was not grossly disproportionate, over-broad or arbitrary. The trial lasted 194 days with testimony from 17 patients, 36 physicians, 17 health authorities and 75 lay witnesses.

Why did the B.C. Court of Appeal uphold that ruling?

The panel of judges were tasked to determine whether errors were made in the application of the law and did not review evidence presented at trial. They found issues with Justice Steeves’s ruling in that he “erred in finding the impugned provisions did not deprive some patients of the right to life” and underestimated deprivations to a person’s right to security. But the group ultimately concluded that the trial judge was fair in his assessment that the Charter had not been breached.

What did the court hear about the state of B.C.’s health-care system?

There was no dispute that wait times in B.C. can be excessive and increase risks to patients. As of March, 2018, almost 33,500 adults were waiting for necessary medical care beyond the maximum wait time. The situation has grown worse during the COVID-19 pandemic. Colleen Flood, the University of Ottawa Research Chair in Health Law and Policy, said this case makes clear that improvements need to be made in the public system, but she argued that privatization is not the answer.

“A private tier would take away essential manpower from the public system, and right now we’re experiencing huge shortages,” she said.

The court found the law does violate certain sections of the Charter. Why did it uphold the law anyway?

Chief Justice Robert Bauman and Justice David Harris wrote that the impugned provisions do deprive some patients of their rights to life and security of the person, but also said they are in accordance with “fundamental justice” and serve to protect the public-health system.

While Justice Lauri Ann Fenlon disagreed with this analysis, she said the breach of Section 7 can be justified under Section 1 of the Charter, which states that freedoms can be subject to reasonable limits if government can show it to be demonstrably justified in a free and democratic society. Prof. Flood said the judges in their analysis underscored how complicated the Canadian medicare system is but ultimately concluded you can’t just “go shopping around for another health care system.”

What happens next?

Applicants say they will take the 13-year legal battle to the Supreme Court of Canada, whose decision would ripple across the country. John Whyte, a former deputy attorney-general of Saskatchewan and an expert in the Charter, said he believed it’s unlikely they will be successful in their challenge. He said while the case has galvanized some opponents of Canada’s health care, it has overwhelmingly revealed frustrations with the public system.

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