Medicare faces constitutional challenge in B.C. court

Lawyer argues universal access does not exist

VANCOUVER• The Great Debate over the future of universal medicare was launched Tuesday in B.C. Supreme Court, although the real issues before the court are more complicated.

Outside the court in downtown Vancouver, demonstrators carried signs protesting for-profit doctors and denouncing the man at the centre of this case.

Inside, in his opening address on behalf of a handful of patients and a private clinic — the Cambie Surgery Centre in Vancouver — lawyer Peter Gall blamed the provincial health-care system for trampling the constitutional rights of British Columbians.

There is no universal equality of access nor timely access to needed health services, he argued.

As a result, Gall said, the provincial government is violating B.C. citizens’ rights to life because medical waiting lists are growing longer.

For a generation, private clinics have provided a necessary safety valve, freeing public resources and shortening those waiting times, Gall said. They should be encouraged, not constrained, he said.

The lawsuit challenges the province’s Medicare Protection Act, its prohibition on doctors operating in both the public and private system and its embargo on the purchase of private insurance for core medical services.

“The public system simply cannot meet the health-care needs of all British Columbians in a timely manner,” Gall said.

“It’s necessary for the health of all British Columbians that private financing and private support in provision of core health services be permitted.”

Dr. Brian Day, co-owner of Cambie Surgeries and a former president of the Canadian Medical Association, denies he is out to scuttle medicare but insists Canada needs more of a hybrid public-private model, such as those found in parts of Europe.

The interveners in the case — the B.C. Health Coalition, and Canadian Doctors for Medicare — fear the legal challenge could create a twotiered, U.S.-style health-care system.

But there are already two tiers, Gall argued — injured workers, prisoners, RCMP officers, athletes, members of the armed forces and some others can all jump the queue and use private clinics under the B.C. law.

For instance, he said, a teacher in this action was able to go a private clinic to repair a knee injured at school while playing with students but was forced to wait for public surgery to his other knee after it was damaged playing in a recreational sports league.

“This distinction is absurd,” Gall said. “It advances no valid public interest ... (and) highlights the arbitrariness of the law.”

Of course, the wealthy can also visit the U.S. or other jurisdictions for aid, he said. About the only people forced to stand in line are Joe and Joan Average.

Lawyers for the B.C. government declined to comment, though B.C. Premier Christy Clark said at a news conference that the province has a legal obligation to defend universal medicare.

“We’re doing that and we’ll see what the court decides,” she said. “Both sides are making compelling arguments.”

Gayle Duteil of the B.C. Nurses’ Union opposes Day’s case and called on the government to increase publichealth spending.

“This is about public health care, the jewel of Canada’s health-care system, a core value of our society, and we have to defend it,” she said.

Gall said decades of evidence about waiting lists establish that the government fails to provide timely access to treatment, which further harms a person’s mental and physical health.

He said that at Vancouver General Hospital, nearly half of patients are waiting longer than the maximum waiting time recommended by medical authorities.

There is a chronic failure by the system to even meet the government’s definition of “acceptable” waiting times, he said.

“There is no doubt people in this province are being harmed every day by the failure to provide timely medical procedures,” Gall said.

Private clinics want the court to strike down provincial prohibitions against doctors in the public system providing private services and people using private health insurance to pay for medically necessary procedures.

The law prevents “British Columbians from protecting their own bodily integrity,” Gall said, especially since most people couldn’t afford private medical care without insurance.

The Supreme Court of Canada in 2005 struck down similar prohibitions in Quebec but the ruling applied only in that province.

After that decision, although it had allowed doctors to work in private clinics for a decade, Gall said the B.C. government barred them from doing private diagnoses and surgeries.

Cambie then spearheaded the constitutional challenge.

Justice John Steeves is expected to hear six months of evidence.