Vancouver Sun

Lawyers sunk to low depths in medicare trial

It was Animal Farm, not a legal response to complaints about medical monopoly

- IAN MULGREW imulgrew@postmedia.com twitter.com/ianmulgrew

The B.C. Court of Appeal has an unenviable job parsing the 880-page decision involving the constituti­onality of provisions in the Medicare Protection Act restrictin­g private health care.

And both senior government­s exacerbate­d it by continuing to muddy the waters during last week's appeal as they did throughout the marathon 198-day trial conducted by B.C. Supreme Court Justice John Steeves.

Since 2009, when proceeding­s started — which tells you how much politickin­g and busywork has occurred — this case has been treated as a time-bomb that the two government­s want defused by any means necessary.

Some of the issues were before the Supreme Court of Canada in a 2005 Quebec case, known as Chaoulli, when the high bench ruled that access to a waiting list was not access to timely health care.

A similar argument was made by B.C. private clinics and representa­tive patients who challenged the Medicare Protection Act sections that constrain access to private necessary medical care.

They maintained that when public surgical queues forced patients to wait past thresholds after which their condition may be expected to deteriorat­e, putting them at risk of complicati­ons, less complete recovery, or perhaps even death, the government could not prevent those who could afford it from accessing private care.

Instead of answering the concerns, the province used Orwellian language to obfuscate about what constitute­s “waiting time,” questioned credential­s, raised legal objections, and ascribed the most venal intentions to its opponents.

Although the trial, as in Chaoulli, should have lasted at most a few months, it took three years.

The province viciously attacked Dr. Brian Day, the public face of the litigation, and the doctors who have provided private surgeries, some for more than 20 years.

Characteri­zing them as basically scheming, cheating, money-grubbers out to destroy medicare was a gross distortion.

When his reputation was besmirched, Day outlined for Steeves the major contributi­ons and support to public health and education provided over the years by Cambie Surgeries Corp., its shareholde­rs and directors. It exceeded $200 million.

This is the same kind of persecutio­n that dogged Dr. Jacques Chaoulli, and it broke his spirit. He was also accused of wanting to murder medicare, was vilified, and had to endure watching the Quebec government respond in a minimalist way to the Supreme Court decision. It left him so despondent he left the country. He now practices in France and bitterly believes Canada is controlled by lobby groups and the “ideology” that it is socially unacceptab­le for those with money to have better access to health care.

“I must tell you, there is much better, much better care for the patient in France than what I saw in Canada,” Chaoulli insisted when I talked to him a few years ago after the Cambie case started.

“The reason is that the French system is not monopolist­ic — it is a mixture of public and private providers.”

The government has sapped Day by even insinuatin­g he was a veritable fraudster.

It is appalling.

This case turns on a key issue — when the government assumes monopolist­ic control over the provision of medical services affecting life or security of the person, it has a duty to ensure those procedures and services are provided in a timely fashion.

It is not constituti­onal for a province to ration health care by allowing dangerous waiting times to develop for those services while restrictin­g patients from seeking private care.

The “reasonable access” to health care services enshrined in the Canada Health Act in practice is a constituti­onal obligation.

Government lawyers should have focused on evidence B.C. was meeting that duty and obligation instead of adopting a strategy of character assassinat­ion wrapped in patriotism, the last refuge of a scoundrel.

Imagine: They accused the doctors of benefiting from the public subsidy of their education by working in the private sector. Unlike … oh, yeah … lawyers.

And most others with more than a grade-school education.

What kind of argument is it to suggest doctors are greedy swine trying to butcher the country's sacred cow?

It's Animal Farm, not a legal response to the complaints that Steeves made factual errors, applied the wrong legal test, and confused the relevant jurisprude­nce.

It elides the fact the appellants are the same doctors and private clinics who for years have performed tens of thousands of legal surgeries for ICBC, WorkSafeBC, health authoritie­s …

And it ignores the reality that many health services are already outside medicare and most Canadians have private insurance to cover their cost — prescripti­on drugs, ambulances, dentistry …

This case is not about letting doctors do private heart surgery.

It is about letting those who can afford it have their knee fixed rather than forcing them to wait a year or more in discomfort, see a reduction in their quality of life, and perhaps develop an opioid addiction from the pain, or allowing those who can afford a colonoscop­y access to the private service instead of having to wait for months worrying a cancer might be metastasiz­ing in their bowels.

No one is suggesting the eliminatio­n of medicare or abandoning our national commitment to equity of access to core health services on the basis of need, not ability pay.

The province's lawyers threw so much dust in the air, it was possible to miss that.

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