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The plaintiffs – representing Dr. Brian Day, the CEO of the Cambie Surgery Corporation – argue that patients have a constitutional right to pay out of pocket for swifter access to necessary medical care when waiting times in the public system are too long.JONATHAN HAYWARD/The Canadian Press

British Columbia’s health-care system would be “radically altered,” allowing those with money to buy their way to the front of waiting lists, should a legal challenge led by a private medicine advocate succeed, says a lawyer for the federal government.

Hanna Davis on Tuesday told B.C. Supreme Court Justice John Steeves that such a situation would undermine the very foundation of medicare: that health services be allocated on the basis of need and not the ability to pay.

“A system designed to equalize health outcomes across different social and economic groups would be replaced by one [in which] individuals of means would be able to buy their way to the front of the line, regardless of need,” she said.

A group of patients led by Vancouver orthopedic surgeon and private-medicine advocate Brian Day is challenging the constitutionality of key provisions of B.C.’s Medicare Protection Act.

The plaintiffs argue that patients have a constitutional right to pay out of pocket for swifter access to necessary medical care when waiting times in the public system are too long.

They seek to overturn key provisions 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, called duplicative health insurance.

In closing arguments Tuesday, Ms. Davis said duplicative health insurance violates the Canada Health Act by giving preferential access to insured health services to those who can afford to pay for private health insurance, while reducing access to publicly funded insured services for those who cannot.

“So, this is a discrimination in access issue,” she said.

As well, duplicative health insurance violates the act, she said, because some individuals would not be eligible for private health insurance coverage because of either their health condition or inability to pay, which amounts to discrimination in entitlement to insurance coverage.

“As you know, these two criteria are considered by Health Canada to be the twin pillars of the Canada Health Act that serve to preserve equity in Canada’s health care system,” she said.

Earlier in the day, Jonathan Penner, a lawyer representing the attorney-general of B.C., concluded his arguments by painting a picture of a public health system that would crumble should the provisions be struck down.

“Physician remuneration at private clinics is significantly higher than the remuneration in the public system,” Mr. Penner said. “The incentive, in my submission, for physicians to shift their effort from the public system to the private system is plain, as is the allure of such an incentive.”

A resulting migration of physicians, nurses and other health professionals to the private system would worsen the standard of care in the public system, he continued.

And the current difficulties of improving B.C.’s health care system “would just be magnified and rendered more impractical” should physicians be allowed to charge patients for the provision of insured services, he said.

“Their motivation not only for remaining in, but improving, the public system would be weak,” Mr. Penner said.

“The inevitable result would be that further improvement of wait times and other aspects of the public health-care system would become more difficult, with the perverse result that granting the relief the plaintiffs seek would exacerbate the very problem that they say entitles them to that relief.”

Lawyers for the plaintiffs had previously invoked several of Canada’s most pivotal constitutional challenges – such as those that struck down Canada’s prostitution laws, opened the door to medical assistance in dying and ordered Ottawa to stop interfering with the Insite supervised drug consumption site – in contending that government has no right to deprive citizens of the right to protect themselves from harm.

“The key difference between this claim and [those]," Mr. Penner said, "is that those claims were brought by individuals who sought relief for themselves, not by corporations who sought the freedom to profit from those individuals.”