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It was once billed as the No. 1 threat to medicare, and perhaps the most important constitutional challenge in Canadian history.

But Dr. Brian Day’s fight to allow Canadians to pay privately for quicker access to health care services has ended with barely a whimper, never mind a society-rattling bang.

After 14 years before the courts, Cambie Surgeries Corporation v. British Columbia (the lawsuit challenging the underpinnings of medicare) was summarily dismissed by the Supreme Court on Thursday.

As is the custom, the top court gave no reasons, but the refusal to hear an appeal implies that decisions by lower courts were sound.

So, let’s review the legal saga briefly.

In 1996, Dr. Day, an orthopedic surgeon, opened the Cambie Surgery Centre – a private, for-profit clinic – in Vancouver alongside colleagues and investors. In 2007, the provincial regulator (the B.C. Medical Services Commission) started investigating the clinic’s “extra-billing” practices, and began an audit in 2008.

In 2009, the Cambie clinic challenged the constitutionality of the law under Section 7 of the Charter of Rights and Freedoms: the “right to life, liberty and security of the person.”

B.C.’s legislation prohibits charging patients for “medically necessary” care, bans the sale of private insurance for that care, and prevents physicians from billing the provincial health insurance plan if they also sell services privately. (Note that private health care is not banned, it is just severely restricted. Every province and territory has some variation of these rules.)

After years of legal manoeuvres, the trial began in 2016 and ended in September, 2020, when Justice John Steeves of the B.C. Supreme Court dismissed the case, saying provisions in B.C.’s Medicare Protection Act did not violate patients’ Charter rights.

In July, 2022, the B.C. Court of Appeal upheld the ruling, and the Supreme Court did the same last week.

The guiding principle of medicare in Canada is that no one should be denied essential care because of an inability to pay.

Dr. Day challenged that, arguing that if waits for essential care are unreasonable, Canadians should be able to pay for quicker access. The lawsuit argued that this was not inequitable because siphoning off paying patients from wait-lists would release pressure on the system and shorten public wait times.

The courts essentially ruled that denying faster access to care did violate rights, but it was a reasonable limit because it ensures more equitable access to care. Judges didn’t buy the “steam-valve effect” argument because the number of skilled surgeons and surgical nurses is finite.

B.C. Health Minister Adrian Dix called the Supreme Court ruling a “great victory for public health.” But it’s more of a pyrrhic victory. Waits for care, including surgery, are longer than they have ever been.

Private, for-profit health care is also expanding faster than ever across Canada – with telemedicine clinics booming and several provinces turning increasingly to private surgical, diagnostic and imaging clinics to shorten wait times.

Even the Cambie clinic is going great guns. Ironically, most of its clients have their bills paid for by government agencies like WorkSafe B.C., Correctional Services Canada, and Indigenous Services Canada. Despite the court ruling, patients can still pay to get surgery, as long as they are not from B.C.

The rules about private delivery and private payment for care are all over the map. For-profit clinics that provide services like hip surgery, cataract surgery, colonoscopies, abortions, and medical imaging like MRIs, exist all over the country, but their services are mostly paid for by public insurance programs. In some provinces, you can also pay privately for these services.

Similarly, some provinces allow doctors to sell “medically necessary” care, as long as they opt out of state-funded insurance plans, while some jurisdictions allow simultaneous private-public practice, and others do not allow opting out. Because the laws that ban extra billing are provincial, the easiest way for a Canadian to buy private care – like that offered by the Cambie clinic – is to travel out-of-province.

In Canada, we don’t clearly define what is covered by medicare and what is not, and private providers exploit the ambiguity. It’s the mishmash of rules about private care and payment across the country that is a far bigger threat to medicare than any one private clinic practitioner, or lawsuit.

In the end, Dr. Day’s legal challenge did not shake the foundations of medicare, but it did expose the widespread illogic (if not hypocrisy) of the regulation of private, for-profit care in B.C. and other provinces.

We get on our moralistic high horse and condemn practices like extra billing and queue jumping – except when it suits us to quietly turn a blind eye.

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