Next week, a case pitting pieties against realities in Canada’s public health care system and what is necessary to safeguard it will be argued at the B.C. Court of Appeal.
The appeal follows an unsuccessful constitutional challenge to two provisions of B.C.’s Medicare Protection Act. The first prohibits surgeons from working in both the public and private health care systems, and the second forbids private insurance to cover government-insured, medically necessary services. Together, these prohibitions effectively preclude access to private treatment in British Columbia for most residents, including those suffering on long waiting lists for referrals and treatment.
Neither restriction is directly required by the Canada Health Act, and the Supreme Court has affirmed that the federal law “does not prohibit private health care.” Nor is either restriction obviously necessary to protect the public against user fees or other barriers to access in the public health care system. Instead, it appears that B.C.’s government is terrified of any perceived threat to Medicare, deeply suspicious of private health care, and wants to crush it.
The court challenge began in 2009 and the trial took more than four years. The government regularly attended court with ten lawyers present while the plaintiff, Dr. Brian Day, founder and CEO of Cambie Surgery Centre, who was fighting to preserve his business, his calling and his livelihood, was represented by a single lawyer, Peter Gall of Vancouver, and his junior. The government objected to nearly every attempt to introduce evidence by way of patient, physician, or expert testimony. After the first seven months of trial, Day was forced to ask for an adjournment so he could raise more funds to pay his legal bills. (The Cambie Clinichas become virtually a household word across western Canada for its timely and excellent provision of a range of orthopaedic and neurosurgery, colonoscopies and many other procedures.)
Most Canadians would regard the government’s overall objective as laudable: universal health care, free at the point of service to any Canadian who needs it. But B.C.’s Medicare Protection Act goes beyond this goal. With its blanket prohibitions against private-pay insurance and dual practice, the law actively prevents patients who have not been adequately treated by the public system from obtaining the treatment they need outside that system. The government’s litigation position is that it is better for all Canadians to suffer equally than to allow individuals to deploy their own financial resources to exercise choice about their own care.
The research suggests that the government’s goal of equal health care access and provision is poorly served by the current Medicare regime. Those with sufficient resources and determination continue to obtain timely private treatment as needed, whether at a private clinic in Quebec, the U.S. or elsewhere. About 300,000 Canadians per year vote with their feet and seek medical treatment abroad. Those who suffer workplace injuries and automobile accidents enjoy statutory exemptions that entitle them to obtain private treatment within Canada at facilities such as the Cambie itself.
The government’s symbolic assertion that its prohibitions are necessary to secure equity is used as cover for the extensive, real harm which occurs when individuals are left to wait indefinitely, often at peril of serious health deterioration. Asking individuals to endure pain, loss of mobility or capacity, and even death in order to ensure the protection of a social program is an unacceptable instrumentalization of individuals to the prerogatives of the State. Where the State has not even shown convincing evidence that such a sacrifice is necessary to protect the social program in question, it is a cruel tyranny.
It might surprise some to learn that this issue is even being litigated in 2021. The Supreme Court of Canada’s 2005 decision Chaoulli v. Quebec concluded that similar Quebec prohibitions on private-pay insurance violated the Canadian Charter of Rights and Freedoms’ guarantee against government deprivations of the right to life, liberty and security of the person. In that case, then-Chief Justice Beverley McLachlin observed that “access to a waiting list is not access to health care.” Since that time, Quebeckers and visiting patients have enjoyed access to a growing number and modestly enhanced range of private facilities, although its government has acted timidly in response to the decision and it has had little impact on waiting times.
But 2005 was a long time ago, and sensibilities change frequently at the Supreme Court of Canada. More telling than the Chaoulli precedent is the robust line of case law that has emanated from the Court over the last decade concerning the interpretation of the Charter’s section 7 guarantee to life, liberty, and security of the person. These cases include Canada v. PHS Community Services Society, which concerned the federal government’s refusal to provide an exemption to allow safe injection sites for those addicted to narcotics, Carter v. Canada, which dealt with the Criminal Code’s prohibition against physician-assisted suicide, and Canada v. Bedford, looking at the Criminal Code prohibitions against working out of a bawdy house and other restrictions surrounding prostitution.
All of these cases touch on divisive and morally complex social issues, and all entail an individual who is in some peril or suffering which the government has not caused but for which the individual’s preferred course of action – whether that be hiring a security guard to safely engage in sex work in the case of Bedford, seeking assisted death in Carter, or injecting controlled substances with sterilized needles in PHS – is proscribed by the government.
These cases – often referred to as the Bedford trilogy – ask a question which fundamentally goes to the delicate balance between a government’s ability to pursue valid public policies through legislation and an individual’s right to take action to seek relief against harmful effects of that legislation. In other words, these s 7 cases are primarily concerned with what are often called “negative” liberties – situations, relationships, decisions or actions from which the State has to butt out – rather than “positive” rights – where the State has an obligation to act. And in all three cases, the Supreme Court found that s 7 of the Charter indeed obliged the State to butt out.
The rationale has clear application in the Cambie case. Here, the patient plaintiffs, along with thousands of British Columbians, suffer on lengthy waiting lists with physical and medical ailments. The government does not have a constitutional obligation to treat these individuals in the public system in a specific time period. (Waiting times are so baked into public health care that Health Canada even publishes lists of “recommended” waiting times – six months for a knee or hip replacement, for example.) Indeed, it does not have a constitutional obligation to provide health care at all. But it does have a constitutional obligation, having failed to deliver timely treatment, to refrain from preventing them from seeking to alleviate their condition and protect their health.
Waiting for health care causes tangible harm. When she was 16 years old, patient plaintiff Krystiana Corrado, a high school athlete from Vancouver, severely injured her knee. Krystiana was forced to wait for over a year before she received medically necessary surgical treatment for her injury. Waiting this long undermined her chances to receive a soccer scholarship to a Canadian university. Another plaintiff, Walid Khalfallah, was diagnosed with a degenerative spinal condition at age eight. After two-and-a-half years on a waiting list, he sought care privately, but the condition by now was too late to correct and young Walid’s spinal curvature resulted in permanent paralysis.
Why should the right of a drug addict to inject heroin safely be protected under s 7 while the right of a family to seek spinal surgery for their child is not? (To be clear, my view is that both should enjoy s 7 protection.) Somehow, a judge of B.C.’s Supreme Court arrived at this absurd conclusion.
Judge John Steeves found that while waits for health care in B.C. frequently exceeded maximum acceptable times (acceptable under government standards, which most people would already consider far too long), there was insufficient evidence of deaths caused by the long waits. In his 800-page ruling, Steeves also found that while harm caused by worsening health conditions on a long waiting list was sufficient to engage the Charter right to security of the person, such harm occurred “in accordance with the principles of fundamental justice” and thus didn’t amount to an unjustifiable breach of the right.
In addition, the judge found that the purpose of the province’s disputed Medicare Protection Act sections was to prevent formation of a duplicative health care system that would increase demand on and reduce capacity in the public system, raise costs, perversely incentivize physicians and exacerbate inequity in access to care. The provisions achieved those preventative goals, he found, in a way that is neither overly broad nor grossly disproportionate. In Carter the Supreme Court of Canada stated that s 7 “does not promise that the state will never interfere with a person’s life, liberty or security of the person – laws do this all of the time – but rather that the state will not do so in a way that violates the principles of fundamental justice: i.e., are arbitrary, overbroad, or grossly disproportionate to their object.” Thus Steeves found that the provisions, though they breached security of the person, did not violate s 7.
Steeves’ reasoning was extraordinarily circular, however. His assessment of the law’s purpose – to protect the public regime from increased costs and inequity by preventing a private regime – effectively guaranteed his ultimate conclusion. But the entire thrust of Day’s case was to call into question this basic premise about what measures are necessary to safeguard the public system. Through the physicians and health care experts he called as witnesses, Day’s lawyer Gall painstakingly advanced the case that allowing private alternatives to the Medicare system would not increase costs or exacerbate inequity.
First, less overbroad measures, such as legislating minimum proportions of a physician’s time dedicated to the public system, were available. (Instead, the provincial law’s provisions forbid any private practice for doctors also working in the public system.) Second, the experience of B.C. itself, which permitted the operation of Cambie and several other private facilities for decades before the NDP government began enforcing fines against them in the late 90s, showed no correlation between the operation of private options and reduced equity of access and treatment.
If Steeves showed maximum deference to the government’s position, his stance towards the plaintiffs’ assertions was much more skeptical. The judge’s scope of relevant harm was almost cruelly limited. He found no violation of s 7 because, essentially, being left with a permanently damaged spine (in the case of Walid) or losing out on the opportunity to play competitive sports in university (Krystiana) amounted to acceptable collateral damage in the State’s crusade to secure universal care, i.e., was “in accordance with the principles of fundamental justice.”
While he minimized the impact of patient suffering, Steeves wholly accepted the government’s assertion that outright bans on private insurance and dual practice were necessary to preserve the public care system. This was in the face of evidence submitted at trial from the UK, New Zealand, Australia, Ireland, and Quebec following Chaoulli. This evidence clearly demonstrated that jurisdictions with private options all enjoy better outcomes in equity, access and patient care than Canada does.
Canada’s abysmal performance on health care waiting times has to do with the way that care in our system is apportioned: not based on the population’s actual or reasonably projected needs but instead by rationing based on legislative budgets. Governments ration medical services within the public system to such a severe extent that, the evidence at trial demonstrated, many specialists are left with sometimes only a few days per month of allocated surgical time at public hospitals – sometimes not even enough to maintain their professional licensing requirements.
And the evidence clearly shows that although per-capita government spending on health care has continued to rise exponentially over the last few decades, waiting times imposed on Canadian patients have also ballooned. According to Waiting Your Turn: Wait Times for Health Care in Canada, a 2020 report by the Fraser Institute, Canadians were on waiting lists for more than 1.2 million medical procedures last year and their average waiting time had increased by 143 per cent since 1993. The increasing strain on the system should come as no surprise as Canada’s demographics shift and Boomers hit their peak health care “consumption” years. But that little or nothing has been done about the problem over the nearly 30 intervening years remains shocking.
The B.C. government’s position is not, as far as one can tell, being pursued out of malice but instead due to a fundamentally outdated presupposition about the effect of permitting private alternatives to a primarily publicly funded system. Countries which either permit or encourage hybrid private/public care systems consistently rate higher than Canada not merely in treatment quality and health care outcomes, but in terms that should persuade committed advocates of Medicare: access to health care and equitable treatment. A 2017 Commonwealth Fund report ranked Canada ninth in health care outcomes out of 11 OECD countries evaluated.
In fact, Canada and the country we intuitively compare ourselves to most, the United States, are both outliers in health care delivery amongst wealthy countries. True to American exceptionalism, the U.S. is the only OECD country that lacks a universal health care system. Canada, though, is even more of an outlier. We remain the only country in the world – yes, communist China and Cuba included! – that positively forbids all forms of private-pay insurance for medically necessary care. Countries such as the UK and New Zealand are useful role models of a compelling alternative: in those countries, private care constitutes about 10 percent of total health spending and, by expert evidence led at the trial, has ameliorated the public system both by providing a “relief valve” and through the general efficiency-boosting effects of controlled competition.
About a month following closing arguments at trial, the coronavirus pandemic hit, prompting the B.C. government to cancel approximately 32,400 surgeries to free up beds for Covid-19 patients, adding greatly to the province’s existing queue. Following the trial court’s decision in September 2020, the province began to further tighten the screws against private health care and declared its intention to begin to fine private clinics that continued to operate.
Happily for the Cambie and its patients, the plaintiff (now appellant) obtained an injunction against the fines being enforced pending the outcome of the appeal, and private clinics are permitted to treat patients whom the public system can’t accommodate within maximum wait times. In the meantime, B.C. Health Minister Adrian Dix proudly touted a strategy of tapping private clinics to clear the surgical backlog resulting from pandemic-induced cancellations – a deeply ironic strategy of rank opportunism, given that the same clinics would hardly even have the rationale to operate under his government’s crackdowns.
Aside from the legal fight for health care choice, there is hope on the horizon for shifts in policy. Polls show that a consistent, if small, majority of Canadians believe we should have the right to purchase private health care if we cannot receive timely access to treatment in the public system. There is good reason to believe the level of support will continue to increase and that openness to private options within a universal health care system will come from both ends of the age spectrum.
Canadian governments across the political spectrum have been timid about interfering with the status quo given the outsized role of universal health care in the country’s national image. Alberta, for example, has done almost nothing to advance the role of private health care delivery. But the Canada of 2021 – dynamic, multicultural, urbane, constantly growing – bears little resemblance to that of 1966, when Tommy Douglas lobbied for a Medicare system with no private release valve.
Among the witnesses called at the Cambie trial was the late Michael Bliss, one of Canada’s foremost medical historians. In his response to the government’s court submissions, Bliss stated his view eloquently: “A country that as a matter of public policy bars treatment to the sick in the hour of their need and pain has lost its moorings and drifted into the unnecessary acceptance of a bizarre form of social cruelty.” It is safe to say that millions of Canadians – suffering patients who have been denied treatment through sheer delay, or their anguished relatives – would wholeheartedly agree. One hopes the decades-long fight of Day and the Cambie Surgery Centre will finally put an end to this cruelty.
Joanna Baron is Executive Director of the Canadian Constitution Foundation, a legal charity which protects the rights of Canadians in courts of law and public opinion.