Doctor’s appeal over right to pay for private health care dismissed by B.C. court

B.C.’s highest court has dismissed an appeal of a landmark decision upholding the province’s public health care laws.

A panel of three justices at the B.C. Court of Appeal on Friday rejected Dr. Brian Day’s argument that a lower court judge had made critical errors of fact in denying his constitutional challenge to legislation that prevents patients from accessing private care when wait times in the public system are too long.

In their majority reasons for judgment, Chief Justice Robert Bauman and Justice David Harris wrote that while long waits for treatment have denied some patients their charter rights to life and security of the person, those violations are permitted under the principles of fundamental justice.

The justices said the laws that Day objects to are meant to ensure equitable provision of health care, and prevent the creation of a two-tier system where access to potentially life-saving treatment depends on wealth.

“We accept the personal interest British Columbians have in avoiding a lengthy wait when they have resources to avail themselves of private care to avoid an increased risk of death. We do not minimize the seriousness of that issue,” the judgment says.

“But, we also recognize that the objective of the MPA [Medicare Protection Act] includes ensuring that individuals without the ability to pay are not thereby deprived of medically necessary care.”

B.C. Health Minister Adrian Dix applauded the judgment in a written statement, saying he was “extremely pleased” with the outcome, vowing to “vigorously defend” the public system.

Dr. Melanie Bechard, the chair of Canadian Doctors for Medicare, an intervenor in the legal case, acknowledged that the public system is under severe strain, but said there are equitable solutions to problems with wait times and quality of care.

“Allowing doctors to charge patients as much as they want, and forcing patients to pay out-of-pocket or purchase private insurance is not one of them,” she said in a statement.

Challenge expected to land in Supreme Court

The appeal court judgment closes another chapter in a legal saga that began in 2009, but the story is likely far from over. Day has long said he expects to fight his case all the way to the Supreme Court of Canada.

Day opened the Cambie Surgery Centre in 1996, billing privately for a variety of different procedures, including orthopedic surgeries, screening colonoscopies and oral and plastic surgery. 

Dr. Brian Day, a self-described champion of privatized health care, is pictured at his office in Vancouver on Aug. 31, 2016. (Darryl Dyck/The Canadian Press)

His constitutional challenge, filed with four patients as co-plaintiffs, took issue with two sections of the MPA that prevent doctors in B.C. from billing patients above the rate paid through the Medical Services Plan (MSP) and that prohibit the sale of private insurance that covers treatment provided under MSP.

B.C. Supreme Court Justice John J. Steeves dismissed the challenge in September 2020 in a judgment that ran more than 800 pages. He said he saw nothing to suggest unrestrained private health care would reduce wait times in the public system, and in fact, most experts testified that wait times would actually increase.

In their reasons for upholding that judgment, Bauman and Harris acknowledged that much has changed in the last two years, and the strains on the health-care system have only become more pronounced.

“We take judicial notice of the crisis caused by the COVID‑19 pandemic, resulting in cancellation or postponement of elective surgeries and other procedures. We are also aware of the current shortage of family doctors, which limits readily accessible primary care,” the justices wrote.

But they said the current challenges could not factor into the court’s analysis of the facts.

Dr. Darius Viskontas, left, prepares to remove a cyst from a male patient’s knee, with assistance from Dr. Anne Wachsmuth, centre, and Miwa Holm, an operating room registered nurse, at the Cambie Surgery Centre in Vancouver on Aug. 31, 2016. The clinic is at the centre of a constitutional challenge to B.C.’s health-care laws. (Darryl Dyck/The Canadian Press)

Although the appeal court upheld the B.C. Supreme Court’s overall decision to dismiss Day’s challenge, the higher court justices said Steeves had erred by finding that the MPA does not interfere with the charter right to life.

“The risk of death has increased for an unknown number of individuals suffering from life‑threatening conditions who wait beyond the benchmark for certain procedures and who, but for the impugned provisions, would otherwise have been able to access private care and mitigate the wait,” they wrote.

Even so, Bauman and Harris said that breach of Section 7 rights under the Canadian Charter of Rights and Freedoms was justified in order to protect those who can’t afford private care.

3rd justice offers different reasons for dismissing appeal

The third appeal court judge, Justice Lauri Ann Fenlon, concurred with the decision to dismiss Day’s appeal, but found that long wait times in the public system are “grossly disproportionate” to the objectives of B.C.’s law.

“A system that provides care three years after it is needed could not, except by the most strained definition, be described as a system that provides access to medical care,” she wrote.

However, she said this violation of the principles of fundamental justice is justified under Section 1 of the charter, which allows for “reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

Fenlon wrote that while the current system prolongs suffering and causes harm for those who would be able to pay for private treatment, she had to consider the common good.

“The negative consequences of striking the impugned provisions and allowing private care would cause those who could not avail themselves of private care — the most vulnerable in society — to wait even longer for care, thereby potentially increasing their risk of harm — beyond that we have found to exist under the current regime,” she said in her concurring reasons.

The original trial in B.C. Supreme Court lasted 194 days and heard evidence from 17 patients, 36 doctors and 17 representatives of health authorities and the province. A total of 590 exhibits were admitted on the record, including 40 expert reports.

The Early Edition13:16Dr. Brian Day on his push for private health care

The owner of the Cambie Surgery Centre in Vancouver speaks about his constitutional challenge arguing Canadians should be allowed to pay for access to private healthcare.

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