A LEGAL REMEDY?
THE FUTURE OF OUR HEALTH CARE IS BEING DECIDED IN THE COURTS
The legal battle for private medicine being conducted by Vancouver’s Dr. Brian Day in the case of Cambie Surgeries Corporation vs. (the attorney general of ) British Columbia is a heroic struggle Day has been leading for many years to improve Canada’s healthcare system. He founded the plaintiff company and it is one of the largest private medical facilities in Canada. He has 100 doctors and dental surgeons and he owns almost 10 per cent of it. Cambie Surgeries performs over 5,000 surgical procedures a year and has revenues of over $10 million a year. Day says that private clinics do more than 60,000 operations in B.C. and save the provincial government $300 million each year. Day dismisses the government arguments of the need for uniform treatment as piffle: there are exemptions for workers’ compensation, the armed forces and RCMP, and even federal prisoners, and others. To the charge of only favouring private medicine to make more money himself, Day replied that he could make much more if he took one of many offers to move to the United States to practice medicine, but has chosen to continue “improving the provision of surgical services in B.C. and not maximizing (his) financial well-being.”
Day, a Liverpool (U.K.) native, is 71, and was brought up in a tough district where his father was eventually killed by hooligans and he went to the same secondary school as Beatles Paul McCartney and George Harrison. He and his family were far-left socialists, until he became disillusioned by the sloth and incompetence of Labour Party and union officials in the U.K. health service. Day moved to Canada in 1973 and became a leading orthopedic surgeon, and in 2006, the president of the Canadian Medical Association. Day traces the failings of the Canadian health-care system to the Canada Health Act of Pierre Trudeau and Monique Bégin in 1984, which strongly discourages private health-care payments by withholding an equivalent amount from federal cash transfers to the provinces.
The federal government’s share of medical expenses is now down to about 22 per cent, so its ability to enforce its will has diminished somewhat. But it has already become a porous system. The Supreme Court of Canada in the Chaoulli decision in 2005 upheld Quebec’s right, under the Quebec Charter of Human Rights and Freedoms, based on the British North America and Constitution Acts’ allocation of property and civil rights to the provinces, to resist the federal ban on private health insurance. That decision makes the British Columbia government’s attempted suppression of Day precarious when the matter gets to the Supreme Court seeking a decision applicable to the whole country. (There is no obvious reason for a different treatment of British Columbia from Quebec.)
In 2012, the British Columbia Medical Services Commission acknowledged what was widely known, that for 16 years, it has been allowing patients to spend their own funds to escape the lengthening public queues and go to private clinics. The system has been a Swiss cheese and a fraud for decades, rationing health service as Canada became less and less competitive in doctors per thousand of population, and trying to stifle, while in fact indulging private medicine. Almost all the while, Canadians have preened themselves that they had a better health-care system than the United States; (for the lower economic third of the population, but not for the rest). B.C.’s Medical Services Commission asked Cambie Surgeries Centre to reject applications for earlier treatment than the public service could provide, even after the Chaouilli decision. In the present case, Day and others are challenging the prohibition against patients using their own funds for medical care, and the ban on private health insurance generally as well as the ban on doctors acting in both the private and public health fields.
Naturally, the B.C. government is swaddling itself in the usual socialist claptrap that it is the champion of equal treatment, even though the Supreme Court determined in the Chaouilli case that Canadians were suffering and dying on the waiting lists that were steadily accumulating. The precise argument of Day and his clinic is that British Columbia is violating the rights to life, liberty, and security of the person under Section 7 of the Canadian Charter of Rights and Freedoms; and that because patients are compelled to wait their turn, they should have the right to private-sector medicine. They seek to vacate the provisions of the B.C. Medicare Protection Act prohibition on private insurance, the limits to extra billing, and the ban on dual practice by the medical profession. The government replies that admitting the complainant’s objectives will damage the spavined beast of the provincial health-care system. They will cling to the crumbling ramparts of the argument that there is no connection between the B.C. discouragement of private payment and the alleged deprivation of life, liberty and security. They naturally claim that overturning the existing law will change health care from a basis of need to one of wealth. And they claim that as physicians move from the public to the private sphere, it will force an increase in public health costs.
Day has made himself the principal spokesman in the entire country for rolling back the prohibition on private medicine (a condition that in the entire world, Canada shares only with North Korea). As he advised the Romanow Commission in 2009, he seeks a multipartisan consensus on the repeal of the Canada Health Act, the implementation of private-sector efficiencies, competition, choice, accountability, introduction of user fees for those who can afford them, in a mixed, public-private sector system and a sharp reduction in the influence of public-sector health unions. Day makes the point that he relieves the public system of the terrible overloading that generates long waits for many critical services.
This case, in which Day testified lengthily through very hostile cross-examination, has seen a full airing of two radically different concepts of public health care. Day has made the point very tellingly, in evidence and in a lengthy affidavit the province tried for two years to reduce and keep from the public, that standards of health care in British Columbia have deteriorated steadily for many years and that health care is effectively being rationed.
Day is regularly denounced as the Great Satan of Medicare. He is alleging that the provincial and federal governments are not only unconstitutionally intruding on the rights of Canadians to health care, but are piling on the legal bills at the public’s expense to try to make the case financially unsustainable for him, which would be a gross abuse of their official status and public revenue sources. Day must win this case, either now or on appeal to the Supremes in Ottawa. And he must not be allowed to lose through inability to pay counsel as the B.C. government tries to spend him to the mat. There is a mechanism for assisting this cause financially. Canada’s healthcare system is in shambles and the idea that it is better than that of the United States is largely a fable, and is in any case irrelevant. This could ultimately be one of the most important judicial questions in Canadian history.
DAY IS REGULARLY DENOUNCED AS THE GREAT SATAN OF MEDICARE.