Private health care decision day approaches
Nearly four years to the day after the start of the now-landmark trial over universal medicare, a decision will finally be delivered today in B.C. Supreme Court.
Begun in September 2016, the constitutional challenge should have taken six months, but turned into an interminable squabble over the provision of private health care in B.C. that ended only in February.
Since then, Justice John Steeves has been considering the claims by a handful of patients and private clinics that the B.C. government is trampling on the rights of residents by leaving them stranded on medical waiting lists while effectively prohibiting any meaningful alternative.
Ironically, the legal attack on two specific provisions of the Medicare Protection Act was nearly derailed late last year when Steeves required health care. The toll was obvious.
In the last months he couldn’t remember what prevented the government from enforcing the law and had to be reminded about aspects of the case discussed years ago, so much ground and so much irrelevance had piled up before him.
Essentially the case involves constraints on dual practice by doctors and the provision of private health insurance that would shutter private clinics and diagnostic centres across the province.
No credible evidence or data was offered by either the provincial or federal government to support the bald assertion that private clinics cause harm to the public system.
B.C. hasn’t even measured the impact or effect of the clinics that have existed for a generation.
“The law is clear there’s no positive right to health care,” insisted government lawyer Jacqueline Hughes.
What should have been an intellectual cruise involving a few months of written argument and data from the medical system became a veritable Royal Commission generating a library of evidence — 194 sitting days that mocked timely justice.
The impugned provisions have existed in some form for 20 years, but last year the NDP administration moved to stiffen and enforce them — enforcement held in abeyance by an injunction until Steeves’ ruling.
The B.C. government’s defence of the constraints was shameful: Rather than argue the merits of its position, Victoria attacked the integrity of the doctors while raising technical arguments and scurrilous charges. Ottawa followed suit. Instead of relevant data, federal and provincial lawyers resorted to fervid rhetoric about the prospect of U.S.-style health care and the poor languishing in squalor at the mercy of greedy, unscrupulous physicians. At one point they falsely accused a respected neurosurgeon of having “scaled back public work because he wanted more time to smell the roses and read a book.”
Even in the final days, lawyers for Victoria were saying the judge should throw out the case.
For all the hand-wringing, however, the federal government acknowledged a similar 2005 challenge in Quebec over private health insurance didn’t result in significant change.
The B.C. government failed to call a single doctor or senior administrator to give evidence about problems caused by the existence of private surgeries.
The data, though, indicated tens of thousands of residents waited too long past government-mandated medically maximum acceptable waiting times for their condition, risking progression of disease and in some cases shortened lifespan or death.
In the Fraser Health region alone, in one year 308 patients died waiting for medically necessary surgery — emphasizing a point made by the country’s top court: Access to a waiting list isn’t access to health care.
Vancouver lawyer Robert Grant accused the governments of grossly mischaracterizing and misrepresenting evidence and fearmongering. B.C. has had de facto private health care for 20 years and the sky hasn’t fallen. To end that status quo, Grant added, would make the public health system even more overcrowded as the 65,000 private surgeries done annually join already historically long waiting lists.
COVID-19’s demands on the health care system have only exacerbated the queues.
Patients need a “safety valve” that could be provided by allowing regulated private surgical services and private health insurance, the plaintiffs argued.
“It’s astonishing we’re the only country on earth that outlaws private health insurance,” said Dr. Brian Day of the Cambie Surgery Centre and the face of the dispute. “How can you reconcile that in a free and democratic society?”
I’m not betting on him winning — Steeves is steeped in labour law and arbitration, the bailiwick of administrative law where contract and statutory interpretation are key, rather than constitutional law, where the balancing of state and personal rights is paramount.
How Steeves frames his decision and the principles he enunciates will determine the outcome and form the foundation for any appeal. Regardless, this case was transformed into a complex, multimillion-dollar test of the institutional competence of the court and its ability to efficiently resolve thorny questions of social policy.
It failed mightily.
The proceedings were proof the courts can no longer function as an effective check on government by providing an affordable forum for citizens to oppose what they consider heavy-handed laws. Still, it was always expected this decision would be only the beginning — the case would be appealed by the loser to the B.C. Court of Appeal and the loser there would take it to the Supreme Court of Canada.
Lawyers talked optimistically in 2016 about a final decision by the high bench maybe this year. LOL. Not even close!
Like the legendary ghostly galleon, the case dubbed The Flying Dutchman is doomed to sail on for a few more years no matter Steeves’ verdict.
No credible evidence ... was offered by either ... government to support the bald assertion that private clinics cause harm to the public system.