Government hits back, defends medicare enforcement

Lawyers urge court not to issue injunction blocking clampdown on private health care

B.C. government lawyers testily denied in B.C. Supreme Court on Tuesday that the NDP administration was being disingenuous about its motives for its announced Oct. 1 clampdown on private health care.

They urged the court to not issue an injunction that would block new medical policing measures because it would endorse the continued flouting of the law at a significant cost to the public interest: $15.9 million in recently withheld federal health transfer payments.

The plaintiffs in a two-year-old constitutional challenge to the constraints on access to private services in the Medicare Protection Act accuse Victoria of trying to put them out of business before the trial can finish.

“For 25 years, (the act) hasn’t been enforced. Why is it in the public interest now to enforce it?” their lawyer Peter Gall fumed.

“It’s a fiction, an absolute fiction. The federal government didn’t say do this now in the middle of the trial to get a refund. Never said it.”

He maintained Ottawa said the changes to how health transfer payments were determined — the government’s ostensible rationale for the changes — would not apply until April 2019.

The NDP concluded “we’re going to drive these clinics out of business before there is a decision in the trial,” Gall said.

Government lawyer Jonathan Penner sprang from his chair exclaiming: “My friend is making things up.”

Gall ignored him and continued his attack on April 4 amendments to the act that included stiff fines and punitive measures for doctors and clinics providing private care contrary to the impugned legislation.

“Really, what the defendant is seeking to do by the mid-trial proclamation of these heavyhanded, oppressive new enforcement provisions is to effectively intimidate enrolled doctors from doing what they have been doing for nearly a quarter-century, without allowing the constitutionality of the substantive prohibitions in the MPA to be determined; and not incidentally, to likely put the businesses of the private clinics in serious jeopardy,” Gall complained.

“One has to wonder whether this is a strategy of the defendant to render moot the important constitutional issues presently being litigated.”

Government lawyer Jacqueline Hughes, however, accused him of casting aspersions and glossing over facts.

“Doctors felt they were at liberty to breach the MPA,” she said. “The underlying conduct is unlawful and has always been unlawful.”

The bottom line, Hughes insisted, was the new enforcement provisions will end “extra billing ” — a term that is under dispute.

She said there was no need for an injunction until the constitutional trial ended because the enforcement provisions were not part of that litigation.

“What is being sought is a sweeping suspension of the bringing into force legislation that is not challenged in the underlying action.”

None of the plaintiffs would suffer irreparable harm if the amendments were enforced, she added. It’s not a representative claim, not a class proceeding, she reiterated.

“The question is not whether third parties may suffer irreparable harm, but whether the party seeking the injunction will suffer irreparable harm,” Hughes said.

“They have to prove irreparable harm to themselves, the plaintiffs, to obtain an injunction.”

She said at most they would suffer perhaps “inconvenience.”

Many of Gall’s assertions were in dispute, Hughes continued, many inadmissible as tendered and others hearsay.

She said there remained no agreement over the meaning of “wait list,” “benchmark,” or when waiting causes harm and the impact of “extra billing ” on waiting times. Hughes claimed Gall was dumping extraneous material on the court, and was incredulous that the new regime would cause economic hardship for the roughly 60 private facilities.

“(The illegal work) is a small portion of what the clinics do,” Hughes argued, the bulk of their work was on patients (exempt individuals such as clients of WorkSafeBC or out-of-province residents) permitted under the act. Regardless, she said there was no corporate right at issue protected by the charter.

“There is no right to earn income by unlawful means . ... There is no right to health care on demand.”

In her opinion, there was no reason the injunction application couldn’t be dealt with in the three days set aside.

“Maybe for you,” Justice Janet Winteringham quipped. She said she wouldn’t be able to read the voluminous submissions and supporting affidavits until her writing week Oct. 30.

Gall asked if she would issue an interim injunction until she renders her decision to protect doctors and the clinics after Oct. 1 when they are liable to substantial fines and penalties.

“Let’s address that tomorrow,” Winteringham said.

The hearing continues.