MEDICARE PROHIBITIONS WILL CAUSE ‘SUFFERING’
NDP’s planned clampdown is destructive, plaintiffs in B.C. Supreme Court trial say
B.C. residents will suffer and some may die if the NDP government enforces prohibitions against private medical care, those behind a long-running constitutional challenge to the law claim.
At the start of proceedings to block enforcement of the impugned legislation, the plaintiffs in the two-year-old B.C. Supreme Court trial on Monday alleged there was no justification for the NDP clampdown set for Oct. 1.
“What the government is attempting to do has nothing to do with the interests of patient health — nothing,” lawyer Peter Gall asserted.
“It is an ideologically driven campaign to drive out of business the private clinics before this trial is complete.”
Gall insisted the heavy-handed fines and other punishments to enforce newly proclaimed constraints on private care will cause the roughly 60 clinics to stop servicing tens of thousands a year.
“They say this is illegal and has been happening for 20 years,” Gall explained.
“We don’t disagree with that, but it’s a fact it has been happening for 20 years and it continued to be the status quo after the commencement of this action and during the course of this trial. There is no doubt about that.”
The April 4 amendments to the Medicare Protection Act included enhanced enforcement mechanisms that impose hefty fines and other penalties on doctors if they privately provide necessary care to British Columbians not exempt from the act.
There are numerous individuals exempt, Gall complained — including federal prisoners, RCMP members, residents of other provinces, tourists, those injured while covered by WorkSafeBC, maybe even federal judges — and that’s one reason the law should be found unconstitutional.
In its submissions, Victoria disputes the need for an injunction to block enforcement until the constitutional questions are answered because those specific changes were not challenged.
Gall scoffed, saying if the law was upheld, no one opposed enforcement; if it was unjust, it should not be enforced.
“Everything turns on the constitutionality of the impugned prohibitions,” he said.
Previous rulings and judicial commentary connected with the case make it clear there should be no enforcement during the course of the constitutional trial, he emphasized, citing Justice Daphne Smith, Court of Appeal Chief Justice Robert Bauman and Supreme Court Associate Chief Justice Austin Cullen.
Gall argued the private assessments and surgical services doctors have provided through the clinics were essential to the health-care system.
“There is no reason to be doing this in the course of the trial. Why are we doing this? This was not done for health reasons, and indeed, if allowed, will result in additional suffering for thousands of British Columbians.”
Gall said government data show adult patients aren’t waiting a few days only but “often weeks and even months beyond their maximally acceptable wait time.”
In 2017, only 42 per cent of patients with severe dental disease received care within the waiting time of four weeks, only about 30 per cent of those with “severe biliary colic — severe daily pain” — received care within their two-week benchmark, only 36 per cent of patients with severe debilitating endometriosis, requiring narcotics, received surgery within the six-week acceptable waiting time, only 40 per cent of those unable to function without assistance due to cataracts received surgery within the six-week benchmark, only 35 per cent of those with carotid stenosis — progressive over 70 per cent — received surgery within an acceptable waiting time of 12 weeks, only 30 per cent of patients with shoulder degeneration “moderate to severe pain with significant or severe functional limitation and threat to role and independence” were seen within the six-week limit ... the list went on and on. “That is across the board for surgeries for all conditions — there is no dispute about that,” he said. It was equally dire for children. In Gall’s opinion, the government was asking the court to ignore the irreparable harm patients will suffer if the law is enforced by asserting it should only consider the effects on the constitutional trial plaintiffs.
“This case was brought on behalf of all British Columbians and the focus must be on all British Columbians,” he underscored.
Gall called the government’s excuse for proclaiming the amendments — the withholding of some $15 million in healthtransfer payments from the federal government — utter fiction.
“There was no need to proclaim the newly enhanced enforcement mechanisms during the course of the trial in order to get the refund,” he insisted.
Moreover, he added the government recently cancelled a long-standing contract to do public surgeries at the private False Creek clinic that will exacerbate waiting times.
“We say it is a punitive action taken by the government for no health-care reason but to inflict harm on the private clinics during the course of this trial into the constitutionality on the prohibitions on access to private health care.”
The NDP can’t point to any harm to a resident or the public system that would result from waiting for the adjudication of the constitutional issue, he said.
“We would hope for a decision before Oct. 1 — how practicable is that?” Gall asked.
Justice Janet Winteringham was noncommittal: “We haven’t even dealt with all the objections yet.”
The hearing continues.