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Colleen M. Flood is the director of the Centre for Health Law, Policy and Ethics and University Research Chair at the University of Ottawa.

Jane Philpott is a former federal health minister and the dean of the Faculty of Health Sciences, Queen’s University.

After 193 days of argument and 101 witnesses, B.C. Supreme Court Justice John Steeves ruled at last on the Cambie case on Thursday, declaring in a whopping 880-page judgment that provincial laws putting limits on a two-tiered health care system do not contravene the Charter of Rights and Freedoms.

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A look at the B.C. Supreme Court ruling and where Brian Day’s challenge may go from here

The arguments in the case centered on whether allowing doctors to be paid by public medicare and simultaneously bill patients directly, or through private insurers, or all three, is a good idea. Should people be able to pay or use private insurance to jump the queue for hip or knee operations, regardless of their medical urgency? Should doctors be able to “extra-bill” – that is, to bill the public plan as well as charging an additional fee to the patient, who might be allowed to buy private insurance to cover that cost?

Much hinged on whether such practices are likely to make things worse for the majority of Canadians who would be left behind in the public system, and after reviewing a tremendous amount of evidence, Justice Steeves concluded that giving license to doctors to bill on top of billing medicare would not free up resources to improve wait times; instead, he wrote, “there is a strong connection between duplicative private health care and increases in wait times in the public system.”

B.C. health care ruling reminds us that courts cannot improve medicare or fix wait times

The landmark Charter challenge over private health-care wasn’t about what you thought it was

This decision has the potential for far-reaching effects on the public health care system in British Columbia and beyond. The outcome is so important for the future of medicare it may well be appealed, potentially all the way up to the Supreme Court – whether by the private clinics or the doctors spearheading the challenge, who have much to gain financially from a two-tier system.

Regardless of this positive outcome for public medicare, however, the public system must improve wait times.

Before COVID-19, many Canadians were already concerned about the long waits for some kinds of care. Now, with so many procedures having been cancelled during the first wave of the pandemic, these concerns have become even more acute for some.

Of course, there is nothing like a pandemic to remind us all of the critical need for a strong, well-funded public health care system that takes care of every single Canadian based on need, rather than ability to pay. But the worries about wait times are real and must be addressed.

Such concerns undoubtedly fuel a misguided sense that more private pay will be the cure – a sense that is too often capitalized upon by those seeking to make a profit. Canadian governments, health system leaders, providers, and even communities have, for far too long, done far too little to respond to concerns about wait times fuelling the fire of the Cambie litigation.

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Part of the problem is the pervasive assumption that the only way to fix wait times is to pour more money into the system: More doctors, more hospital beds, more expensive equipment. At times, it can feel like the resource needs can never be met.

Of course, sometimes more money is what’s needed. But the evidence is clear that fixing wait times, including for the kinds of procedures at issue in the Cambie trial, does not require endless new resources.

Successful projects such as e-consult services, the youth mental-health efforts at two Ottawa hospitals, and Dr. Cy Frank’s wait-time initiative for orthopaedic procedures in Alberta show that when specialists come together to share a wait list rather than each keeping separate lists, patients are seen faster. Teams that involve non-physician professionals, such as nurses, pharmacists, physiotherapists and more, can also see people more quickly. Across the country, innovative approaches have been very successful at reducing wait times without sacrificing the value of equity that Canadians hold so dear.

The Canada Health Act speaks to “reasonable” access to health care; most Canadians would surely believe this also means “reasonably timely” care. The work of getting there will be tough; it requires leadership on the part of governments, system leaders, doctors and more. But allowing wealthy Canadians to pay for faster care will not change that.

It is time for provinces and territories working with health care providers to step up and spread and scale all the good solutions we already know about so that patients' needs are coordinated through central triage structures and no patient falls through the gaps.

Private payment is no real answer, as Justice Steeves has definitively concluded. Solving wait times is.

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