Brian Day, a crusader for greater private health-care access, will be in a Vancouver courtroom next week for the start of a lawsuit challenging provincial rules that pertain to his clinic's practice of billing patients for procedures offered in the public system.
While the hearing challenging B.C. regulations that ban private care for medically necessary services is expected to last six months, a bullish Dr. Day said in an interview on Tuesday that victory is inevitable "because we're right."
The hearing begins next Tuesday in B.C. Supreme Court. On one side is the Cambie Surgery Centre, which describes itself as Canada's only free-standing hospital of its kind, as well as patients who are listed in the lawsuit as plaintiffs.
On the other side is British Columbia's Medical Services Commission and the provincial Health Ministry.
The case promises to reignite a debate whose last major legal test occurred in 2005, when the Supreme Court of Canada ruled that a Quebec ban on private health care was unconstitutional.
Dr. Day is the medical director at the Cambie clinic, which specializes in anthroposcopic surgery and allows patients to pay out-of-pocket rather than wait for care in the public system. The provincial government has previously audited the clinic and alleged its billing practices were illegal, though for years it did little to actually intervene. Dr. Day and his patients argue that restrictions on private care are unconstitutional.
The orthopedic surgeon and past-president of the Canadian Medical Association said he is motivated by a key belief. "You should not suffer or die because of a wait list," he said. "Access to a waiting list is not access to health care."
The B.C. government says it is simply enforcing the law.
"The priority of the Medical Services Commission and the Ministry of Health is to uphold the Medicare Protection Act and the benefits it safeguards for patients in this province," the Health Ministry said in a statement Tuesday.
"We expect and require these clinics to come into full compliance with the law, and we remain fully committed to seeing out this case to its resolution."
The ministry said it could not comment further because the case is before the courts.
But the federal government is also watching the proceedings closely and has sought intervenor status in the case.
In a statement from Ottawa, Health Canada said many provisions of the B.C. legislation mirror those of the Canada Health Act, "making this case of significant importance not only to British Columbians, but to all Canadians."
Given that Canadians "overwhelmingly" support universally accessible health care, "any challenge to a principle so fundamental to our health-care system is of significant concern to the Government of Canada."
During a federal Liberal caucus retreat in Saguenay, Que., last week, Health Minister Jane Philpott said the case and the prospect of health-care privatization are a cause of "concern" for her.
"I think I have made it very clear on repeated occasions that our government is committed to firmly upholding the Canada Health Act. The Cambie case deals specifically with that, with the provision of services," she told reporters.
"It's fundamentally important to the health-care system in the entire country, not just in British Columbia, that we make sure that medically necessary services are universally insured and there are no barriers to access of those services."
Ms. Philpott acknowledged that some health-care services in Canada are delivered privately, citing physiotherapy, which is largely carried out in private clinics because it is not included under the Canada Health Act. But she said anything similar to a user fee is a barrier to people being able to receive medically necessary care.
Ultimately, Dr. Day said, the law, facts and evidence are on the side of his argument that Canadians would best be served by a "hybrid" health-care system.
"I kind of hope the judge doesn't hear that, and our lawyers would be nervous to hear that, but that's what I believe," he said.
Within that system, public hospitals would offer private services and private hospitals would offer public services. He said he also wants to see competition between and within the systems.
"Competition breeds excellence," Dr. Day said.