Insights (Essays)

Insights (Essays) September 2020

Limits on Privately Financed Healthcare Upheld by the BC Supreme Court

Lorian Hardcastle

BC Supreme Court 

On September 10, Justice Steeves of the BC Supreme Court released his decision in Cambie Surgeries Corporation v. British Columbia (2020), which has significant implications for the future of Canada’s public healthcare system. The driving force behind this case is Dr. Day, an orthopedic surgeon and the founder of a private surgical clinic in Vancouver. In response to allegations that his clinic illegally billed patients, Day unsuccessfully argued that BC’s limits on private healthcare were unconstitutional.

As with other provinces, BC limits the emergence of a two-tier healthcare system whereby patients could pay to jump public queues. For example, BC prohibits private insurance for publicly insured services. Because many people cannot afford to pay for services entirely out-of-pocket, eliminating insurance significantly reduces the market for private care. BC also prohibits extra billing, which typically occurs when a doctor bills the public plan for providing a service and charges the patient an additional fee. As the Canada Health Act requires the federal government to withhold funds from provinces that permit extra billing, BC lost over $32 million due to extra billing by private clinics (Government of Canada 2019, 2020). 

Dr. Day argued that the combination of long wait times in the public system and laws limiting private finance violated the Charter rights to life and security of the person. His argument was based on a Supreme Court of Canada case, which challenged Quebec’s prohibition on private insurance (Chaoulli v. Quebec 2005). While one judge resolved the Chaoulli case based on Quebec law, the remaining six judges were split on whether the prohibition was arbitrary and whether the government could justify it as a reasonable limit on rights. While three judges concluded that the prohibition was “a rational consequence of Quebec’s commitment to the goals and objectives of the Canada Health Act”, the others stated that there was not a “real connection” between the prohibition and “the goal of a quality public health system (Chaoulli v. Quebec 2005).” Since Chaoulli did not resolve the question of whether the combination of wait times and limits on private finance violated the Charter, it left the door open to cases like Cambie.

In Cambie, Justice Steeves rejected the plaintiffs’ contention that BC’s laws infringed the right to life, concluding that “when patients face risk to life or limb they are provided with timely and high quality care.” However, he found that limits on private finance engaged the security of one’s person, given that some patients waited beyond provincial benchmarks for surgery, which “may cause prolonging of pain and suffering and deterioration” and increase “the risk of reduced surgical outcomes.” However, the right to the security of one’s person is not absolute. The plaintiff must also show that the infringement on the security of one’s person is inconsistent with “the principles of fundamental justice”, which require laws not to be arbitrary, overbroad, or grossly disproportionate (Cambie Surgeries Corporation v. British Columbia 2020). 

According to Justice Steeves, the purpose of BC’s laws is “to preserve and ensure the sustainability of a universal public healthcare system that ensures access to necessary medical care is based on need and not on an individual’s ability to pay (Cambie Surgeries Corporation v. British Columbia 2020).” After canvassing the comparative evidence, he found that the laws were not arbitrary, given that the government had a rational basis for concluding that private finance could reduce capacity and increase wait times in the public system, increase costs, exacerbate inequities, incentivize doctors to prioritize private patients and erode public support for medicare.

The plaintiffs argued that the law was overbroad because it captured activities that did not threaten the public healthcare system, such as physicians, who had maximized the available operating time in public hospitals, providing care in private facilities. Justice Steeves rejected this argument, finding that private operating room time could take doctors away from other essential activities, such as consultations and follow-up care. He also concluded that the plaintiffs’ argument only addressed human resource issues and neglected to consider the other risks of privatization such as increased demand for health services, increased costs and inequity.

With respect to gross disproportionality, Justice Steeves rejected the plaintiffs’ argument that the laws deprived them of the ability to “save their own lives, or avoid serious physical and psychological harm, by accessing timely private care (Cambie Surgeries Corporation v. British Columbia 2020)”. Although he acknowledged the seriousness of waiting, he found no evidence that patients were dying while awaiting elective surgery and noted that patients who deteriorated while waiting would advance on wait lists.  On the other hand, he was concerned that without these laws, those with the most urgent medical needs would be “dependent on a public system struggling with reduced capacity due to competition with a parallel private system over the same pool of healthcare professionals (Cambie Surgeries Corporation v. British Columbia 2020)”.

Although this case preserved BC’s limits on private finance, an appeal is already planned and many feel this case is destined for the Supreme Court of Canada. Furthermore, while this case addresses private finance, several provinces are expanding the private delivery of health services. Although these services are publicly funded, they can undermine the healthcare system in a manner similar to private finance. For example, if finite health professional hours are reallocated to private facilities that tend to treat the least complex cases, sicker people may end up waiting for longer for care in public hospitals (Longhurst et al 2016). Therefore, while Cambie represents a victory for proponents of medicare, privatization may still threaten the public healthcare system.

About the Author(s)

Lorian Hardcastle is an associate professor in the Faculty of Law and Cumming School of Medicine at the University of Calgary, Calgary, AB.

References

Cambie Surgeries Corporation v. British Columbia (Attorney General), 2020 BCSC 1310. Retrieved September 15, 2020. <http://canlii.ca/t/j9kpw>.

Chaoulli v. Quebec (Attorney General), [2005] 1 S.C.R. 791, 2005 SCC 35. Retrieved September 15, 2020. <http://canlii.ca/t/1kxrh>.

Government of Canada. 2019. Canada Health Act Annual Report 2017-2018. Retrieved September 15, 2020. <https://www.canada.ca/en/health-canada/services/publications/health-system-services/canada-health-act-annual-report-2017-2018.html>.

Government of Canada. 2020. Canada Health Act Annual Report 2018-2019. Retrieved September 15, 2020. <https://www.canada.ca/en/health-canada/services/publications/health-system-services/canada-health-act-annual-report-2018-2019.html>.

Longhurst, A., M. Cohen and M. McGregor. 2016, April. Reducing Surgical Wait times: The Case for Public Innovation and Provincial Leadership. Canadian Centre for Policy Alternatives. Retrieved September 15, 2020.  <https://www.policyalternatives.ca/sites/default/files/uploads/publications/BC%20Office/2016/04/CCPA-BC-Reducing-Surgical-Wait-Times.pdf>.

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