Appeal Court grants relief to private clinics
B.C.'s highest court has granted an injunction that will allow the province's private surgical and diagnostic clinics to remain operational pending an appeal of a landmark constitutional ruling.
In September, the B.C. Supreme Court concluded that while the waits for some medical procedures in the public health care system were too long and violated patients' rights, the deprivation was in accordance with the principles of fundamental justice.
During the trial, which ran for more than three years, the court had granted an injunction to prevent the Medical Services Commission from enforcing the laws against extra billing by the private clinics while the proceedings were continuing.
After the September ruling by Justice John Steeves, the plaintiffs, including the Cambie Surgeries Corporation, sought to extend the injunction until an appeal could be heard.
And in a ruling released Tuesday, B.C. Court of Appeal Justice John Hunter granted an interim order extending the injunction until the appeal in June.
The judge limited the order to privately funded surgeries for patients whose medically necessary surgery had been scheduled for a date beyond the Health Ministry's waiting time benchmarks.
Dr. Brian Day, the president and CEO of Cambie Surgeries and the public face of the constitutional battle, welcomed the ruling.
“The injunction ruling by Justice Hunter puts the focus on this constitutional trial back where it should be: namely the rights of patients to access care and avoid harm when the public system leaves them languishing on a waiting list,” Day said in an email Tuesday. “The constitutional challenge has always been about patients' rights to access care, although the government has tried to portray it as physicians' rights to deliver private care.”
He said that in B.C., tens of thousands of patients are waiting past the government's own mandated maximum acceptable waiting times for their procedures.
“This injunction decision will result in (thousands) of British
Columbians avoiding permanent and irreversible harm, and it will save lives.”
The government had opposed extending the injunction, arguing that Steeves' 823-page ruling upholding the laws against extra billing changed the status quo and the interim order should not be granted.
But the plaintiffs presented the evidence of four patients whose surgeries at Cambie were cancelled following the issuance of the judge's ruling and argued that in the absence of the injunction, they would suffer irreparable harm.
In his ruling, Justice Hunter concluded that it would not be appropriate to issue the broad injunction sought by the plaintiffs, which would have included patients who could receive surgery within a reasonable time but would prefer it more quickly.
But he said the balance of convenience did support a limited injunction that protects those patients whose scheduled surgeries exceeded the maximum recommended waiting time.
“I conclude that a workable order can be crafted to distinguish those persons who are faced with delays beyond the maximum acceptable wait time from those who can be accommodated within a reasonable time in the public system, but would prefer to have their surgery performed earlier.”