When British Columbia's Health Services Minister George Abbott responded to news private surgery clinics are suing him, as well as the Medical Services Commission and the attorney general, he vowed to fight vigorously to defend public health care and oppose extra-billing.

But the last time a clinic charging fees received public scrutiny (the Copeman Health Care Centre, which charges an annual membership fee), the government appeared to roll over, allowing the clinic to continue with a business many observers say they believe breaks Canadian health care laws.

"There is a pattern," said Lew MacDonald, co-ordinator of the B.C. Health Coalition. The surgical clinics do business very differently from how Copeman's clinic does, he said, and it is good that the government was set to audit them in February, which is what the statement of claim says spurred the legal action.

But looking at how Copeman was handled, he said, "It does raise a lot of skepticism for us."

It has so far been unclear how the government made the decision on Copeman, with results of the audit process kept secret by law and neither the government or the clinic releasing the details. To get answers, the BCHC filed a series of freedom of information requests. While the released documents are heavily severed, and questions remain, they do fill in key gaps in the story.

No evidence found

In a Nov. 28, 2007, letter to Don Copeman, then chair of the Medical Services Commission Tom Vincent wrote that the audit was completed and the government had found no evidence the clinic was breaking the law. The commission had decided at its meeting two weeks earlier that no further steps would be taken, he wrote.

The audit team found no evidence the clinic was extra billing patients for insured services, no evidence paying a fee got patients "enhanced" insured services and no evidence the fees created a barrier to access insured services, Vincent wrote.

To reach its conclusion, the letter said, the team "conducted a comprehensive, detailed, examination of a random sample of patient files and related documentation" during a two-day visit to the clinic.

A few weeks earlier, once the audit report was in, in the days before the MSC made its decision, Vincent sent an e-mail to the audit team asking a key question: "Does the Centre's fee afford those who pay it more timely access to specialist medical practitioners?"

David Anderson, the director of audit and investigations, answered, "We found no evidence that the Centre's fees afforded those who paid them a more timely access to the services of specialist medical practitioners."

No evidence sought

In an earlier exchange with the province, Copeman had said doctors at the centre will take patients who walk in to the clinic and treat them free of charge, but it never happens because they don't advertise their services that way.

The BCHC's MacDonald said the auditors obviously wouldn't find out about people who had been refused care by looking at the records of people who had been accepted as patients. They took Copeman's statements at face value, he said, and didn't look deeper.

"There's no evidence because they didn't look for the evidence," he said. "That to me would seem like a real big lack of due diligence on the part of the Medical Services Commission and the audit committee in particular."

The BCHC had tested that question itself. Three different volunteers called the clinic and asked if they could make an appointment, MacDonald said. "They all got the same response. You have to be a member."

Conducting a similar test not long after the MSC had cleared the clinic, The Tyee got the same answer. A reception person said, "You do have to be a member." For a non-member, she said, the fee to see a doctor would be $175.

Admitted violation

The MSC's lack of diligence on Copeman doesn't necessarily mean the Cambie Surgeries Corporation and the other clinics suing the government will get a free ride, MacDonald said. "Let's give them the benefit of the doubt as much as possible."

The questions and concerns about the surgical clinics are different from the ones around Copeman, he said. "Our concerns with Copeman are particular to Copeman," he said. "We're very aware Copeman and Cambie, and other surgical clinics like Cambie, are really different animals."

Where Copeman charges a membership fee, insisting that it covers all the non-insured services the clinic offers bundled together, the surgery clinics freely admit to charging facility fees. As the surgery clinics' statement of claim puts it, "Independent private surgical facilities receive facility fees for the use of their facilities for the purpose of operations and other procedures."

If Copeman is in a grey area of the Medicare Protection Act, the surgical clinics are in a clear violation, MacDonald said. "Facility fees are prohibited. It's fairly clear about that."

That the province was taking action, with an audit planned for February until the clinics filed their lawsuit, is a good sign, MacDonald said. "We need a provincial government that will proactively enforce the rules," he said. "It's high time we see some movement on the part of the government. Some folks were wondering what took so long."

Related Tyee stories:

• Doctors Double Dipping
  Clinic doctors got $500,000 in public funds, but walk-ins must pay for basic visits.
• Copeman Clinic: The Tipping Point?How long before every Canadian pays to see a family doctor? A special report.
• Independent clinics launch lawsuit based on Charter
• Dr. Day's Doublespeak
  How Canada's top MD views medicare.