Courts are main threat to Canadian medicare

The biggest challenge to medicare comes not from rightwing politicians who would openly dismantle Canada’s public health insurance system.

Even former Conservative Prime Minister Stephen Harper, who in his early days was one of those critics, came to understand that Canadian voters would punish any government seen to be attempting this gambit.

Rather it comes from the courts. Over the years, they have shown little interest in strengthening the laws that uphold medicare, but considerable sympathy for taking them apart. That’s what makes a case now before the British Columbia Supreme Court so important.

Seven years in the making, it pits Vancouver private clinic owner and orthopedic surgeon Brian Day against the B.C. government. But it has national implications.

Day is challenging two elements of B.C. law. One prohibits the sale of private health insurance for medically necessary services. The other prevents B.C. physicians from so-called double dipping — that is, operating in both the private and public systems at the same time.

B.C. doctors can opt out of medicare and charge their private patients more. But if they do so, they are barred from treating medicare patients at all, a restriction that puts much of their income at risk.

The two rules are part of B.C.’s effort to design a healthcare system in line with the requirements of the Canada Health Act, the federal statute authorizing medicare.

Other provinces take slightly different approaches. Ontario, for instance, requires all physicians to operate inside medicare.

But all are aimed at the same goal: creating a situation in which all residents have equal access to medically necessary services offered by physicians and hospitals through a single, universal and comprehensive medicare system.

Medicare defenders argue B.C.’s rule against double dipping is necessary to discourage physicians — particularly specialists — from moving private patients willing to pay more to the front of the queue. And they say the ban on private insurance prevents the well-to-do from getting preferential access to medically necessary services.

Day argues both rules are in conflict with the charter of rights and freedoms, in that they prevent patients from using their own money to protect their own health.

His is an argument that has appealed to Canada’s activist Supreme Court before. In a similar case involving Quebec, the top court came close to buying it.

In that 2005 case, three judges, including Chief Justice Beverley McLachlin, dismissed out of hand the government’s contention that a ban on private insurance was necessary to preserve medicare. They said instead that such a ban infringed on patients’ charter rights and was therefore unconstitutional.

Luckily, three other judges took a contrary position (the seventh offered no opinion) and this particular pillar of medicare was not ruled unconstitutional.

But it did give a taste of where the courts were heading, as did two other rulings. One, in 2004, was another Supreme Court decision written by McLachlin. It overturned lower court rulings that had found B.C.’s refusal to provide effective care for autistic children unconstitutional.

The Supreme Court unanimously ruled that provincial governments were required under the Canada Health Act to provide patients only with “core” services and that their failure to offer more did not violate anyone’s charter rights.

In effect, the top court was saying through these two decisions that while it was not willing to expand the scope of medicare, it was willing to limit it.

A 2004 Federal Court ruling came to a similar conclusion. In that case, brought by various pro-medicare groups, including the Canadian Union of Public Employees and the Council of Canadians, the judge ruled he had no authority to make the government monitor and enforce the Canada Health Act. That, the judge wrote, was a political not a judicial matter. None of this bodes well for the future of Canada’s universal public health insurance system.

When it comes to expanding collective rights connected to medicare, the courts are cautious and deferential. But when it comes to expanding individual rights at the expense of medicare, they are far bolder.

This is the disturbing context in which the Day case is being heard. We shall see what the Supreme Court justices have to say about that case when it finally reaches them, as it almost certainly will.