OPERATION INJUNCTION
Private clinics seek reprieve
An injunction application was filed Monday asking the B.C. Court of Appeal to prevent the provincial government from closing down private surgical and diagnostic clinics while it considers their case.
The plaintiffs, who lost the recently concluded marathon constitutional trial, claim B.C. Supreme Court Justice John Steeves misstated, misunderstood or disregarded much of the evidence in upholding provisions of the Medicare Protection Act that constrain the delivery of private medical services.
Steeves repeatedly used the wrong legal standards and tests under Section 7 of the Charter of Rights and Freedoms, which protects “life, liberty and security of the person,” lawyer Robert Grant said.
Although some private facilities have provided services for a quarter-century, he explained they would have to shutter without an order temporarily suspending the landmark Sept. 10 ruling — which endorsed the law and terminated a previous injunction preventing its enforcement.
“The history of private clinics and of this proceeding clearly demonstrates that there is no public interest, much less an urgent public interest, in enforcing the provisions that would outweigh the harms that would result,” Grant argued.
The application included affidavits from patients suffering from painful, debilitating and in some cases life-threatening conditions who had their private surgeries cancelled.
One from a Vancouver police officer said: “Every day, I experi
ence stress, anxiety, depression and feelings of helplessness due to the fact that I have no choice but to suffer through the relentless and negative side effects of my sinus condition. I am desperate to get my surgery rescheduled ... so that I might obtain some relief from my chronic sinus illness.”
A 64-year-old from Comox insisted he too couldn't endure the wait in the public system: “If I am not able to have my surgery performed at Cambie, I plan to explore options for knee surgery in Seattle. Going to the U.S. will be difficult for my family and me, in terms of the risks associated with COVID, the requirement to quarantine for 14 days, and the financial burden of both paying for my surgery in the U.S. and paying for travel and accommodation.”
A 77-year-old confided that facing a one-year wait in the
public system had brought him anxiety, stress and fear: “At my advanced age and with the threat of COVID-19, I feel I may not have many good years left.”
Grant maintained the ability of these patients to obtain private diagnostic and surgical procedures on a private-pay basis had been critical to their ability to protect their own health.
“The prohibition of private surgeries will have devastating consequences for these patients, unnecessarily prolonging their pain and disability, increasing their risk of deterioration and possible permanent harm.”
Grant emphasized evidence at the trial established that many patients in the public system were queued up well beyond the maximum acceptable time for their surgery.
Doctors also provided statements supporting the motion saying that the patients who filed
affidavits represented just a few of many who are being and will be harmed if private diagnosis and surgery are not available pending the outcome of the appeal.
“Allowing private clinics and physicians to continue to provide private, medically necessary services within B.C. reflects the long-standing status quo,” Grant concluded. “As previous court orders have confirmed, preserving this status quo during this litigation would in no way harm the public interest — it will protect it, by maintaining a vital and necessary part of the health care system in this province, pending the outcome of this appeal.”
The Ministry of Health identified 62 private surgical facilities in the province, Steeves said in his judgment.
“In the weeks since the decision came down, many patients at Cambie (Surgery) and other centres, including cancer patients in need of further surgery and others who may have cancer but are awaiting diagnosis and treatment, have been cancelled,” said Dr. Brian Day, the face of the challenge.
“Many cataract patients are being forced to live with impaired vision. They are known to suffer from risks of falling and suffering serious injuries. At trial it was revealed that, pre-COVID, 308 patients in the Fraser Health Region alone died on their wait lists in just a single year. Evidence heard from a government witness was that Canada is the only country on earth that outlaws the safety valve of private health insurance.”
The province has until Nov. 6 to respond to the injunction application, which will be heard Nov. 17 and 18.