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Future of Public Health Care at Stake in Major New Trial

Private clinics’ constitutional challenge, starting Tuesday, aims to end ban on extra billing.

By Andrew MacLeod 6 Sep 2016 | TheTyee.ca

Andrew MacLeod is The Tyee's Legislative bureau chief in Victoria and the author of A Better Place on Earth: The Search for Fairness in Super Unequal British Columbia (Harbour Publishing, April 2015). Find him on Twitter or reach him here.

A legal battle that begins in Vancouver Tuesday could open the door for doctors to begin extra-billing patients and threatens public health care, says a health policy researcher following the case.

“A lot of the media has pushed the case as a patients’ rights case,” said Colleen Fuller, a board member of the Independent Patient Voices Network. “There is nothing in the court case about the right of patients to pay.”

Canadians already pay a lot privately, including for prescription drugs, compared with many countries with similar public health care systems, Fuller said. “We pay for a lot of health care already and it’s a burden on most families. It isn’t a ‘right,’ it’s a burden.”

The B.C. Supreme Court case, spearheaded by Cambie Surgeries Corporation owner Brian Day, is about whether doctors should be able to extra bill patients or their private insurance companies for services already paid for through the public system, she said. “They want a multi-payer system.”

The Medicare Protection Act, with a few exceptions, prohibits doctors from charging patients directly for services that are insured through the public system. The law says people should have “reasonable access” to care that is universal and unimpeded by user fees or extra billing.

In 2012, a B.C. Medical Services Commission audit stemming from a 2008 complaint found Cambie Surgeries Corporation and the closely related Specialist Referral Clinic (Vancouver) Inc. were guilty of extra billing on a “recurring basis” and had broken the act.

Win would help poor, says Day

The Cambie clinic offers a variety of surgical procedures, including orthopaedic, eye and dental, with fees ranging up to $15,000. The audit found almost $566,000 in allegedly illegal charges, including $500,000 in extra-billing.

Day, who told The Tyee that the audit numbers were “fabricated,” responded to the commission’s steps to stop extra billing at his clinic by launching the constitutional challenge. Besides the clinics, the eight plaintiffs include six patients. Two have died since the lawsuit was filed, Day said.

“The medicare system in Canada is not fulfilling its promise,” Day said. “And I believe our constitutional challenge will allow it to fulfill its promise of access for everyone.”

About 80,000 British Columbians are waiting for surgery and two million Canadians are on wait lists for a wide variety of health care services, he said. “It’s reached critical proportions that have worsened in the almost eight years it’s taken to get to trial.”

Day denied the case is really about doctors being able to charge more for services than the public system pays. “It’s a fight for poor Canadians,” he said. “They’re the ones who are suffering under the health system.”

European countries with hybrid private-public health care systems have seen their wait lists disappear, he said. That helps the poorest people, who tend to have the hardest time getting access to the health system, he said.

Day also said that with 13 provinces and territories each running their own health care systems, Canada spends a lot more on bureaucracy than many other countries. Introducing private competition to end their “monopoly” would force them to become more efficient, he said.

Higher costs, poorer outcomes

But Fuller, in a report on the case published by the Canadian Centre for Policy Alternatives in 2015, found two-tier health care does not improve access. In Cambie Corp. Goes to Court: The Legal Assault on Universal Health Care, she found that wait times were no shorter in countries where the health care system has a parallel private tier.

“In fact, private payment options increase wait times for those who rely on the public system and increase costs overall while providing poorer patient outcomes,” according to the CCPA’s summary of the report.

Fuller said she’s apprehensive about the outcome of the court case, given the Supreme Court of Canada’s decision in the 2005 Chaoulli case that overturned Quebec’s ban on selling private insurance to cover medically necessary care.

“I think Canadians should be really concerned,” she said.

The defendants in the case are three parts of the B.C. government: the Medical Services Commission, the Health Ministry and the Attorney General.

“The priority of the Medical Services Commission, and the Ministry of Health, is to uphold the Medicare Protection Act and the benefits it safeguards for patients in this province,” a spokesperson for the ministry said in an emailed statement. “We expect and require these clinics to come into full compliance with the law, and we remain fully committed to seeing out this case to its resolution.”

The federal government has been granted intervener status in the case and is expected to argue strongly against two-tier health care.

‘Attack’ on public health care: critic

Wait lists for health care are too long, but the Cambie case won’t help, said Adam Lynes-Ford, a campaigner with the BC Health Coalition, which advocates for public health care and also has intervener status in the case.

“If Brian Day wins, the evidence shows many Canadians won’t be able to afford health care and many of us would end up waiting longer for the care that we need,” Lynes-Ford said.

The majority of Canadians believe access to health care should be based on need, not ability to pay, he said. “This case attacks that premise and those values,” he said. “It has such profound stakes for so many people in this country.”

Gayle Duteil, president of the British Columbia Nurses’ Union, said there is already a shortage of operating room nurses in British Columbia and expanding the number of private clinics would draw more nurses from the public system.

The case is a “direct attack on public health care,” Duteil said, and threatens the universal system is the safest, most efficient and most cost-effective.

If Day wins, she said, wait times will increase.

Participants say they expect it will take Justice John Steeves six to eight months to hear the case.

Whoever wins, the decision likely be appealed to the B.C. Court of Appeal and the Supreme Court of Canada.  [Tyee]

Read more: Health, Rights + Justice

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