A rather fierce and highly significant battle is raging in the courts of British Columbia. At stake is the future of private payer medical care in Canada. Many feel that what’s really at stake is the future of universal health care in Canada. Pragmatically, the issue boils down to whether decisions about when and how patients get care should be determined solely by need, or whether those with resources should be able to access alternative routes, and whether physicians should be allowed to provide those alternatives.

The Globe and Mail

At the centre of all this is Dr. Brian Day, an orthopedic surgeon and former president of the Canadian Medical Association, who is the Medical Director and Chief Executive Officer of the Cambie Surgery Centre in Vancouver, which opened in 1996 and has been offering and providing services to insured and privately paying patients. It has been doing so despite (in the case of the privately paying patients) being in violation of the B.C. Medicare Protection Act, which prohibits physicians from working in public and private systems at the same time or, more precisely, from charging patients for publicly covered services. It also prohibits the sale of private insurance for medically necessary hospital and physician care (insurance is permitted for care not covered by the public system). It seems that for the past 20+ years the government has either made only half-hearted attempts to enforce the law, or simply “looked the other way”.

It appears that current governments are much more committed to enforce the letter of the law, and Dr. Day has mounted a challenge based on the Charter of Rights and Freedoms. He and his lawyers argue that the Charter-provided right to pursue life, liberty and personal security extends to the right to pay for care when someone feels the public system doesn’t provide it to their satisfaction. They make it clear that they are not opposed to medicare or interested in dismantling it. They point to effective blended public/private provision in many countries, claim no evidence of harm and opine that it may actually benefit the public system by “off-loading” some patients. In their closing arguments (as reported in the Globe and Mail November 13, 2019) his lawyers claim:

“Allowing British Columbians to obtain private medically necessary services would not result in any harm to either the accessibility or viability of the public health-care system, as demonstrated by the experience over the past 20 years in British Columbia, when the prohibitions on access to diagnostic and surgical services were not enforced.”

“Further, the government cannot justify imposing severe mental and physician harm on some residents on the basis of an ideological commitment to perfect equality in access to treatment, which is neither created by the legislation in question nor obtained in practice.”

There is, as one might imagine, considerable opinion to the contrary. It comes from groups such as the BC Health Coalition, Canadian Doctors for Medicare, and many individual physicians and patients who have put forward rather strongly worded counter-arguments. They feel the presence of condoned private care in BC will set precedents for the rest of Canada and undermine the principle of universal care by siphoning physicians, nurses, therapists and technicians to potentially more lucrative opportunities in the private sector. In the case of physicians, they feel this is a betrayal of the publicly financed education they’ve been provided.

The case, which has been ongoing for several months, is now in the hands of BC Supreme Court Justice John Steeves who must decide whether the BC Medicare Protection Act indeed violates Canada’s Charter of Rights and Freedom.

This impending decision, indeed this very issue, is highly significant not only for those in the medical community, but for every Canadian. Medicare has taken on a special place in Canadian cultural identity. It has become a defining element of the national character, and a source of pride of all citizens. If there are any “sacred cows” in Canadian politics, Medicare would certainly be one. But its introduction and maintenance have been far from easy.

Chief among the challenges has been the division of federal and provincial responsibility and, therefore, funding. The British North America Act of 1867 establishes among the exclusive powers of provincial legislatures,

“the Establishment, Maintenance, and Management of Hospitals, Asylums, Charities and Eleemosynary Institutions in and for the Province, other than Marine Hospitals.”

The provision of so-called comprehensive Medicare began in a piecemeal fashion in the 1940s, but gained momentum in the 1960s, largely through the efforts of the then premier of Saskatchewan, Tommy Douglas. A key step along the way was the passage in Saskatchewan in 1961 of the Saskatchewan Medical Care Insurance Act which basically guaranteed health coverage to all citizens. That included physician fees, and so Section 18 of the act includes the following:

“No physician or other person who provides an insured service to a beneficiary shall demand or accept payment for that service.”

Thus, direct physician billing to patients was essentially outlawed. Mr. Douglas turned his attention to the federal scene as he became leader of the New Democratic Party and his efforts were instrumental in the passage of the Medical Care Act of 1966, which obligated the federal government to provide half the provincial and territorial costs for medical services provided for a doctor outside hospitals. By 1972, all the provinces and territories had some form of plan to reimburse for physician services. The Canada Health Act of 1984 states in its preamble the primary objective:

to protect, promote and restore the physical and mental well-being of residents of Canada and to facilitate reasonable access to health services without financial or other barriers.”

Like British Columbia, the provinces have developed legislation designed to ensure universal and funded provision of care. In Ontario the Health Care Accessibility Act of 1986 essentially outlawed billing of patients outside the provincial insurance plan, and has been subsequently reinforced by versions of the Commitment to Future of Medicare Act.

And so, what are the considerations that are likely going through Justice Steeves mind as he ponders this momentous decision?It seems obvious that government-supported medicare has the considerable advantage of ensuring a standard level of care to all patients regardless of their economic means, and of ensuring physicians are compensated.

  • It seems obvious that government-supported medicare has considerable advantage of ensuring a standard level of care to all patients regardless of their economic means, and of ensuring physicians are compensated for their services.
  • There seems little doubt that a decision in favour of privately funded clinics will give rise to many similar operations throughout the country, particularly in large urban centres.
  • The risk of an exodus of talent from the public to private system seems real.
  • There are, indeed, many examples from other countries supporting the concept that the two systems can co-exist. However, it would seem that’s only true if there is some provision for mandatory participation of physicians in the public system.
  • It’s becoming apparent that the ability to fully fund “universal” care solely through the public coffer is not sustainable. We’re seeing examples of this almost daily. Hospitals, despite best efforts, are going beyond budgets to provide care, and there are clearly insufficient options for the care of needy outpatients.   Not only is the population getting larger and older, but highly effective (and very costly) therapies have emerged and are continuing to emerge for the treatment of conditions that previously had no options other than palliation. Wait times are certainly lengthening, and “hallway medicine” becoming the norm.
  • There’s no question that for many procedures with very long wait times, such as hip and knee surgeries, the critical bottleneck is not the availability of qualified physicians, but rather access to hospitals and operating rooms which could, theoretically, be at least partially addressed by providing privately funded facilities.
  • What effect a private system would have on public system wait times is, we must honestly admit, unknown and can’t be reliably projected. It will depend, to a large extent how many private facilities emerge, what services are provided, and what constraints are put on the providers.  

A critical and rather sobering consideration in all this is that the success or failure of any blended private/public model may hinge on the willingness of physicians to continue to provide care to patients regardless of ability to pay. It will test and expose their motivations and priorities. It will test their allegiance to the principles the profession has always espoused, expressed in the words of the World Health Association Oath, and taken in by most medical students, including those at Queen’s:

“I will not permit considerations of religion, nationality, race, gender, politics, socioeconomic standing, or sexual orientation to intervene between my duty and my patient”

Those who so vehemently oppose privately funded care apparently believe physicians will abandon these principles in favour of personal income. I believe, and hope, that they’re wrong. Whatever the outcome of this court case, I choose to believe that physicians will continue to use their training and skills as they were intended, for the benefit of all.   

The issue of whether well-resourced citizens have a charter-assured right to more expeditious health care, and whether that privilege impinges on the rights of the less-well-resourced, seems beyond objective analysis and, in my view, is best left in the hands of a fair- minded and impartial judiciary. In the end, our system for deciding such dilemmas has been well thought out, and is worthy of our trust.

Godspeed, Justice Steeves.