COURT RULING DELAY MAY LEAD TO PRIVATE SURGERY CANCELLATIONS
Legal fight over amendments to Medicare Protection Act put off for at least a month
Private surgeries in B.C. are being cancelled starting on Monday and hundreds of patients may be forced to suffer on public waiting lists as a result of the NDP’s medicare brinksmanship.
In a surprising move, B.C. Supreme Court Justice Janet Winteringham said she can’t immediately decide whether to issue an injunction against the clampdown on private medical facilities until the law it’s based on survives a constitutional challenge.
The plaintiffs in that trial want her to suspend enforcement of impugned amendments to the Medicare Protection Act that come into force Oct. 1 until the validity of the constraints on access to private care are determined.
“What I’m going to suggest is that the parties determine among yourselves what, if anything, can occur between now and when I render my decision,” Winteringham said, adding at the earliest that would be Oct. 30.
“If you are unable to come to any agreement on that, I invite you to come back and appear before me. I cannot deal with the volume of material that has been presented.”
The lawyer for the plaintiffs, Peter Gall, said that meant surgeries would have to be cancelled.
“I’m going to ask that counsel try to deal with that issue,” the justice said.
“They’re not going to agree to allow surgeries to continue until you render your decision,” Gall told her.
Doctors, he explained, could not risk the hefty fines that could total more than $100,000 a day and other significant penalties under the new provisions.
“Without an injunction, the patients will go back into the public system,” Gall said, insisting that enforcing the law before its legitimacy was determined was costly and illogical.
The clinics could be forced to close and the constitutional trial could be derailed, he feared, and the prospect of the two sides reaching a pact was scant.
Submissions from lawyers for both sides this week were punctuated by caustic jibes of “unclean hands,” jeers of disingenuousness and blatant animus.
Government lawyer Jonathan Penner sat throughout Gall’s submission on the need for an injunction shaking his head, seething.
“This is offensive,” he blurted at one point.
In reply, he called Gall’s comments “reckless,” “irresponsible,” and hyperbole; he suggested anything “his friend” (wink-wink) said unsupported by an authority should be considered dodgy and he minimized the effect of enforcing the law saying only a fraction of the clinics’ business was illegal.
Gall was engaging in speculation and relying on anecdotes, in Penner’s opinion.
“The harm to the public health system that would be caused by the granting of the (injunction) sought would be real and immediate,” he said.
On his way to the private Cambie Surgery Centre Thursday to operate on five patients eager to beat the planned cut-off, the face of the decade-old litigation, Dr. Brian Day, was livid.
In the last quarter of 2017, for all procedures, he explained government documents showed 89,281 patients were waiting for surgery — 39,726 longer than the province’s maximum medically acceptable period.
“That is 44.5 per cent of all patients,” he said, fuming. “For almost a quarter of a century, those patients have had a safety valve.
“That safety valve will be gone after Oct. 1.”
Cambie was established in 1995 and despite the proliferation of such facilities, constraints on access to private care were not enforced, apparently because both NDP and Liberal administrations considered them to be an essential complement to the public system. Yet even with nearly 60 clinics operating across B.C. and increasing government funding of health care, Gall said waiting lists have lengthened and far too many individuals are not receiving timely care.
Day said Cambie reviewed its October schedule and 150 adult procedures — including orthopedic, neurosurgery, cataract and colonoscopy cases — along with children’s dental procedures were threatened.
More will be affected regardless of whether Winteringham grants an injunction Oct. 30 if no deal is reached, he added, because it would take the clinic three to four weeks to start up again.
“There is no better illustration of actual harm than the colonoscopies — the impending forced cancellations of colonoscopy alone at Cambie (and all other clinics) will force patients at a risk of cancer to be added to those already unacceptable waiting lists,” Day said.
He said the clinic was still warning patients about the situation: “Clearly, the loss of this activity will threaten our viability and ability to continue the trial.”
Winteringham urged the two antagonists to resolve the situation, but that she could make herself available Monday.