Judge’s decision expected in constitutional challenge of B.C.'s Medicare Protection Act

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A decision is expected Thursday in a marathon legal battle that could change the future of Canada’s health care system.

B.C. Supreme Court Justice John Steeves is expected to release his judgment in a constitutional challenge of key provisions of B.C.'s Medicare Protection Act, four years after the matter landed in the court.

The plaintiffs, led by Brian Day, a private-medicine advocate and chief executive officer of the for-profit Cambie Surgeries Corporation, have argued that patients have a right to pay out of pocket for swifter access to necessary medical care when wait times in the public system are too long. They seek to overturn provisions of the act that prohibit physicians from accepting pay from both public and private purses, limit extra billing and ban health insurance for services that are already covered under the public plan.

Critics counter that the case is not about health care delivery but money, and that opening the door to a two-tier system would prioritize treatment based on a person’s ability to pay over need, upending the very foundation of Canada’s public health care system.

Whatever the decision, the losing side is expected to appeal the matter at the B.C. Court of Appeal, and potentially at the Supreme Court of Canada. A decision by that court would be binding on all courts and administrative board tribunals, and can only be overturned by subsequent Supreme Court of Canada decisions.

“It’s a really important case, in the context of Canadian medicare as we know it,” said Steve Morgan, a professor of health policy at the University of B.C.

The breadth of grievances brought forward by the plaintiffs make the case bigger than what is commonly referred to as the Chaoulli case, he said. In that landmark 2005 decision, the Supreme Court of Canada struck down prohibitions on private insurance, finding the ban violated the Quebec Charter of Human Rights and Freedoms.

“There is a lot in this case; it’s like Chaoulli for non-Quebec Canada, amplified because it’s got that and a few other things that are arguably bigger than the Chaoulli case,” Dr. Morgan said.

“I think the health policy research community, the health policy scholarship community in Canada, are probably holding their collective breath right now wondering what will happen. I do remember when the Chaoulli decision came down, I remember the gasps. People thought, ‘How could the court have ruled in that way?’”

The Chaoulli decision did not open the floodgates to private insurance in Canada, as some had predicted. This is because it only applied to Quebec, and the court said a prohibition on private insurance could be justified if wait times were not unreasonable. The province allowed private insurance for certain treatments, and the decision prompted provinces to set wait-time benchmarks.

Dr. Day said Wednesday that he is optimistic about the case, while acknowledging it will almost certainly be appealed either way.

“I’m very confident of our case, and I’m very confident that we will eventually win,” he said. “You never know, though, because the law is not a science.”

Rupinder Brar, a Vancouver addictions-medicine physician and member of the board of Canadian Doctors for Medicare, an intervening party in the B.C. case, said she was anxiously awaiting the verdict.

“A lot of the time you hear the plaintiffs talking about this court case being about wait times, and the public, when it has nothing to do with health care delivery at all,” Dr. Brar said Wednesday. “We know from evidence around the world that if the plaintiffs were to win, our wait times would actually get longer, because the same physicians and nurses would be working in a dual practice. People would have less access to care, and not more.

"What this court case is about is physicians' billing, and the money physicians can make.”

Final arguments for the case concluded in February.

“I’m looking forward to completing my judgment and signing my name on it,” Justice Steeves told lawyers at the end of the trial on Feb. 28. “Once I’ve done that, I’ll join the rest of the world in watching the progress of this case with great interest.”

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