By Danyaal Raza
The Supreme Court of British Columbia is now hearing closing arguments in an historic legal challenge to the fundamental principles of Canada’s health care system.
The corporate plaintiff — Cambie Surgeries Corporation — seeks to overturn key provisions in B.C.’s Medicare Protection Act that stand in the way of generating higher incomes for physicians who work in private for-profit clinics.
The plaintiffs are challenging the core principle of Canada’s health care system as enshrined in the Canada Health Act: that care should be provided based on need, not on ability to pay.
Evidence clearly shows that letting patients buy their way to the front of the line would make wait times longer for those who could not afford to pay privately. Yet that is exactly the solution Cambie Surgeries Corporation is fighting for in court.
B.C.’s law prohibits extra billing, meaning doctors enrolled in medicare can’t charge patients extra, on top of what B.C.’s Medical Services Plan (MSP) pays them. It bans private duplicative insurance that covers the same services as the public plan. And it bans dual practice, preventing doctors from being paid from both the public purse and privately.
These three provisions protect equitable access for patients, ensuring that care is provided first to those who need it most, rather than to those who can pay for faster access. The trouble for some is that these provisions also restrict corporate profits.
The trial itself is not about the mere existence of private clinics. It is not unlawful to operate a private, for-profit, investor-owned health care facility. So long as the doctors who work there are not enrolled in BC’s MSP, they can charge patients whatever the market will bear. What enrolled doctors can’t do is charge patients for medically necessary hospital and physician care.
For years, Cambie Surgeries Corporation has unlawfully charged patients "facilities fees.” In doing so, they have persistently violated the B.C. Medicare Protection Act. In response, and for more than two decades, the province has been amending, strengthening, and expanding the enforcement provisions of the law in an effort to stop them from breaking the law.
If the court rules in favour of the corporate plaintiffs, and declares the B.C. Medicare Protection Act unconstitutional, then the Canada Health Act could be rendered unenforceable. Evidence in the trial from U.S. experts makes clear that this could unravel medicare across Canada and open the door to an inequitable and inaccessible American-style health care system.
The corporate plaintiffs are not the first to call for expanding private payment in the health care sector. On the contrary, whenever health care systems in other countries have moved towards such an approach, the result has been an increase in wait times for patients who can’t afford to pay.
Australia introduced private duplicative health insurance in an attempt to reduce wait times by generating new revenue without raising taxes. Yet, wait times grew even longer for those who couldn’t afford to buy private insurance. A very recent private-pay MRI scheme in Saskatchewan yielded similar results; waitlists doubled.
There’s another way.
Consider ReBalanceMD in Victoria, an interdisciplinary orthopaedic care clinic. Using a triage system called FAAST — First Available Appropriate Specialist Triage — to address long wait times for patients with musculoskeletal issues, evidence in the trial shows that by streamlining the patient experience, they dramatically reduced wait times.
Similarly, a pilot project in Ontario that has since scaled province wide, has improved access for patients with chronic back pain. By providing coordinated consultations and team-based care, it has reduced wait times to see a specialist from 18 months to as little as two weeks.
An E-Consult service in eastern Ontario built around virtual access to specialists that has also since scaled, has also reduced family physician waits for specialist advice to less than two days, while saving money and avoiding unnecessary specialist consultations.
These are but a few of the many public innovations that have successfully reduced wait times without expecting patients to “choose” private payment.
Our health care system is imperfect, but reforms proposed by the plaintiffs would benefit only those who could afford to pay for the privilege of faster access, at the expense of millions more who would wait longer for publicly-funded health care.
Dr. Danyaal Raza is a family physician in Toronto, Assistant Professor at the University of Toronto, and the Chairperson of Canadian Doctors for Medicare.
