MEDICARE IS STILL LEGAL; NOW IT MUST IMPROVE
Our health care system a great idea that is far too inefficient, Steven Lewis says.
Medicare is legal in British Columbia! After a trial that dragged on for four years, B.C. Supreme Court Justice John Steeves dismissed Dr. Brian Day's claim that the province's medicare legislation and rules unreasonably abridge charter rights. The decision affirms the government's entitlement to discourage the expansion of a parallel system that provides faster care for people with money. Its medicare legislation is not overreach, and its restrictions on what physicians can bill are justifiable to preserve the core principles of the system.
Steeves was unmoved by Day's attempt to paint the lipstick of concern for patients on the pig of greed. He also discerned the difference between a desire to make more money and selfless commitment to ordinary folks pitilessly consigned to eternal waiting list purgatory.
Nothing ever prevented Day from opting out of medicare to fast-track patients willing to pay 100 per cent of the costs of care out of pocket. What infuriates him is the law that forbids charging them more than the fee paid to doctors in the public system.
Unfortunately for his case, neither upselling nor price-gouging are enumerated charter rights.
The decision acknowledges that some patients wait too long and suffer as a result. But Steeves gives the system a performance pass on the grounds that at times there is not enough capacity to address need, no system is perfect, and a private and duplicative system catering to the well-off would make the system even less fair.
He's right about two-tier. Elsewhere his assessment is too forgiving. Canadian health care is hardly minimalist. Only if every service is demonstrably useful and efficient, and there is still not enough care to go around, is there persuasive evidence of lack of capacity. According to expert physicians, up to 30 per cent of health care is either harmful or without value. Most knee arthroscopies are useless. So is a lot of back surgery. So are many diagnostic tests.
Urologist “A” may suggest watchful waiting to a 75-year-old man with prostate cancer. Urologist “B” may urge an immediate radical prostatectomy. There are evidence-based clinical practice guidelines for hundreds of procedures, but physicians rarely have to follow them. The one certainty is that if you install another MRI or open up another operating room, demand will rise to soak up the supply.
According to Steeves at paragraph 2,926 of his judgment, physicians are uniformly devoted to ensuring that no British Columbian lies neglected on a waiting list: “The evidence of the experts and physicians in this case was that physicians are constantly re-evaluating their patients' needs and adjusting their coded diagnosis and corresponding priority codes and wait time benchmarks when necessary. If a patient's condition deteriorates he or she will be advanced on the specialist's waiting list. This is not a naive view of the public health care system, but what all physicians described in their evidence as an appropriate and necessary medical practice that is in place throughout the system.”
Forgive me, but that's naive as hell. If such vigilance and attention to detail were “in place throughout the system,” how is it that some patients wait three weeks and others with similar needs wait eight months for the same procedure? Expert evidence submitted by Dr. Dennis Kendel, former registrar of the College of Physicians and Surgeons of Saskatchewan, found that physicians failed in their duty of care to all five patients on whom Day hung his case by not informing them of their options in the public system that in Kendel's view had ample capacity to meet their needs in a timely manner.
I hoped — sort of — that Steeves would find in Day's favour but propose a medicare-friendly remedy. Declare that the public system too often and needlessly compromises the charter right to “security of the person.” Then issue an ultimatum to government: Act quickly to fix the problems or I will strike down your legislation. Here's what you need to do at a minimum:
■ Centralize and co-ordinate waiting lists where all patients are in one pool, and health care teams apply objective criteria to sort them in order of need and to weed out low-value care. Where surgeons maintain their own waiting lists without oversight, deciding independently who needs a procedure, and where hospitals reward those with the longest lists with more operating room time, it is inevitable that waiting times will vary widely.
■ Negotiate a new contract with organized medicine. Physicians must be full partners in the system, engaged in efforts to improve quality, fairness, and efficiency, and accountable like everyone else.
■ Specify what patients have a right to expect with respect to waiting times, information about options, and review and appeal mechanisms.
■ Ensure that patients approaching the maximum acceptable waiting time are identified, monitored and given every option for accelerated care.
■ Create processes that can rapidly shift resources to respond to real-time information on mismatches between need and capacity.
Steeves laid down the law, but not to governments.
I wish he had, but it shouldn't take a court decision to shake the system out of its lethargy. It's great that the idea of medicare has survived another legal challenge. But a great idea badly executed is hardly cause for unbridled celebration. By international standards Canadians wait too long, the public system is focused too narrowly on hospitals and doctors, and we don't get good value for the money spent.
As long as the mediocrity persists, there will be hucksters at the gates eager to exploit anxious people convinced the public system won't be there for them and the credulous rich who assume anything public and universal must be second rate.
The best defence of medicare is not successful litigation, but excellence. Governments should act as if medicare is on probation, its legitimacy and public support conditional on major improvements long overdue.
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(B.C. Supreme Court Justice John) Steeves laid down the law, but not to governments.