Feds applaud B.C. Supreme Court decision against private health care

Federal Health Minister Patty Hajdu says a B.C. Supreme Court decision that ruled against a doctor calling for the right to pay for private health care validates Canada’s universal health care system.

In a landmark ruling that’s been a decade in the making, the court decided that private health care is not a constitutional right even if wait times are too long.

The case was launched by Dr. Brian Day, a surgeon who heads Cambie Surgery Centre in Vancouver, which is described as the only “free-standing private hospital” providing surgical care in Canada. While Day’s clinic isn’t illegal, he violated B.C.’s Medicare Act by allowing patients to spend their own money to skip ahead and get procedures done faster, a 2012 audit found.

Day brought his case to the court in 2009, to challenge the sections of B.C.’s Medicare Protection Act that prohibit doctors from charging the government for work they do within the public health care system if they are simultaneously making money through private-sector clinics. It also stops private clinics from enacting extra patient charges and taking private insurance for necessary medical procedures.

Day attempted to argue that long wait times within the public system violated charter rights, and that patients who are willing and able should be able to pay for private care when wait times are too long. The orthopedic surgeon has argued for a hybrid type of health-care system, where the current system stands along with a second-tier that allows patients to pay and skip the waitlist for necessary medical procedures.

In an 800-page ruling, B.C. Supreme Court Justice John J. Steeves said that the claims Day made concerning waiting times “do not deprive the right to life or liberty of the patient plaintiffs or similarly situated individuals.” He added that the plaintiffs Day had on stand to testify on behalf of his claims did not prove that their constitutional rights were violated.

Minister Hajdu celebrated the ruling in a statement released on Friday.

“Access to medically necessary services should be uniformly available to all, based on need rather than ability or willingness to pay,” she said. “Patient charges — whether they take the form of charges at the point of service or payment for private insurance — undermine equity.”

Hajdu said the ruling was especially important in the context of the ongoing COVID-19 pandemic and that Canadian governments would continue to defend universally accessible health care.

Her statement was echoed by the B.C. Health Coalition, a group that advocates for improvements to the health-care system, whose members also intervened in the case.

“This is a victory for everyone who uses health care in Canada,” said Edith MacHattie, a co-chair at the coalition. “Even though the attack had been launched in B.C., it took aim at the very heart of the Canada Health Act and every provincial health care insurance plan.”

Day is expected to appeal the decision. The Canadian Constitution Foundation, a private registered charity that defends “the constitutional rights and freedoms of Canadians in the courts of law and public opinion,” according to their website, announced in a statement on Thursday they are supporting the plaintiffs in Day’s case with going forward with an appeal.

Premila D'Sa / Local Journalism Initiative / Canada's National Observer