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Despite what you may have heard, a judge of the British Columbia Supreme Court did not just rule against private health care.

In upholding the constitutionality of certain provisions of the province’s Medicare Protection Act, Justice John Steeves did not rule against private health care, because private health care is not banned under the law. Neither is it banned by any other law in B.C., or in any other province.

Almost one-third of all spending on health care in Canada is private, and the part that is publicly funded is mostly privately delivered. Doctors, for starters, are for the most part small business operators, who happen to have the government as their only client. Private clinics, likewise, are permitted in most provinces to offer services on contract to the public system.

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For non-essential services like cosmetic surgery, not covered by medicare, doctors can charge patients directly, based on what the market will bear. They may even charge for services that are covered by medicare, provided they opt out of the system altogether, meaning neither they nor their patients are reimbursed by the province. Private insurance companies, meanwhile, are permitted to cover a broad range of services not covered by medicare, from drugs to dental care to private hospital rooms.

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

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

The law, then, does not ban private care. Neither were the plaintiffs in the case, led by the former president of the Canadian Medical Association, Brian Day, demanding the right to deliver or to receive private care, as such. What they wanted was the right to mix the two, private and public. The provisions under challenge were those that forbid doctors from charging patients an extra fee, on top of what they bill the province; that forbid insurance companies from covering services that are covered by medicare; and that forbid doctors from working in both systems.

There are good reasons, from efficiency to personal freedom, to allow private providers to work within a publicly funded system, or to work outside it. But there are equally good reasons to forbid combining the two. It’s one thing to say that patients have a right to pay for care, if they are not satisfied with the treatment they are receiving from the public system, out of their own pocket: only the most blinkered ideologue would prevent people from doing what is best for themselves and their families, or from spending their own money.

But when patients are permitted to pay, and doctors to charge, fees in addition to what the public system provides – or what amounts to the same thing, if patients can pay privately for services such as diagnosis in return for preferred access to other, publicly provided services – that is not people spending their own money for private care. That is people buying their way to the front of the line for public care. That is giving first claim on public dollars to those rich enough to supplement them with their own – when the whole purpose of public funding is to ensure, as the judge wrote, that “access to necessary medical services is based on need and not ability to pay.”

Private insurance, likewise, is notoriously difficult to reconcile with universal coverage. Providers have an incentive to screen out those who are likely to make claims: the problem known as “adverse selection.” Consumers, for their part, have an incentive to put off buying insurance until they fall ill: the problem of “moral hazard.” One way of addressing these twin problems is to make both the provision of insurance and the purchase mandatory; this was the solution adopted under Barack Obama’s reforms to U.S. health care, and is the system in use in many other countries. The other way is to make government the sole funder.

If you don’t, and if consumers and insurers remain free to pick and choose which services they will purchase or provide, then the problem becomes one of “cream-skimming.” Private insurers will provide superior services to those with the means to pay for it, leaving the public system to those without. The best doctors will gravitate to the private system – or, if they are required to keep one foot in the public system, will reserve their best efforts for the system that pays them better. The danger – and the result, the evidence shows, in countries where this is allowed – is erosion of the public system, and of popular support for it.

Which is not to say that all is well with the system as it is. Medicare costs are drowning governments, accounting for close to one half of most provinces' budgets, and were even before the tide of aging Baby Boomers began to come in. Yet, even with all this spending, waiting times for many elective surgeries have grown to levels that can pose a threat, if not to people’s lives, then at least to their “security of the person,” in the language of the Charter of Rights.

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That was the heart of the plaintiffs' argument in this case, as it was in the 2005 Supreme Court of Canada case known as Chaoulli, after the Quebec physician who brought it: If governments are to impose a monopoly over the funding of health care, they have an obligation to see that it is provided in a timely fashion.

That Justice Steeves declined, unlike the Supreme Court in Chaoulli, to find that this amounted to a violation of Charter rights (yes, he ruled, the law infringed upon the security of the person, but not in a way that was inconsistent with “fundamental justice”) is probably just as well: these are complicated issues of public policy that are best left to the political arena rather than the courts.

Litigating the matter, indeed, suggests a conflict between the rights of the individual and the interests of the majority that is more apparent than real. User fees and private insurance may not be the answer to wait times, but it is not impossible that the system could be reformed in such a way as to make more efficient use of resources, without harm to the principle of universal public funding.

In fact, given what we know of how inefficiently resources are currently being used, I’d say it’s almost a certainty.

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