Major appeal decision coming in constitutional challenge to B.C.'s public health-care law

·3 min read
Dr. Darius Viskontas, left, prepares to remove a cyst from a male patient's knee, with assistance from Dr. Anne Wachsmuth, centre, and Miwa Holm, an operating room registered nurse, at the Cambie Surgery Centre in Vancouver on Aug. 31, 2016. The clinic is at the centre of a constitutional challenge to B.C.'s health-care laws. (Darryl Dyck/The Canadian Press - image credit)
Dr. Darius Viskontas, left, prepares to remove a cyst from a male patient's knee, with assistance from Dr. Anne Wachsmuth, centre, and Miwa Holm, an operating room registered nurse, at the Cambie Surgery Centre in Vancouver on Aug. 31, 2016. The clinic is at the centre of a constitutional challenge to B.C.'s health-care laws. (Darryl Dyck/The Canadian Press - image credit)

B.C.'s highest court is set to rule this week in an appeal of a landmark decision on a challenge to public health care.

On Friday morning, the B.C. Court of Appeal will release its judgment on the constitutional challenge launched by private health-care advocate Dr. Brian Day, the owner of Vancouver's Cambie Surgery Centre.

Day is appealing a 2020 B.C. Supreme Court decision dismissing his claims that patients have the charter right to pay for private care when wait times in the public system are too long.

Justice John J. Steeves found that while some patients are not receiving care in a timely manner, in violation of their right to security of the person, B.C.'s limits on private health care are justified under the principles of fundamental justice.

In reasons for judgment that run more than 800 pages, the judge said the legislation Day objects to is meant "to preserve and ensure the sustainability of a universal public health-care system that ensures access to necessary medical care is based on need and not on an individual's ability to pay."

Steeves went on to write that introducing a parallel system of private health care would seriously damage equitable access to care.

"Further, the evidence suggests that duplicative private healthcare would increase demand and costs overall while also reducing capacity in the public healthcare system. There is a genuine risk that both the sustainability of the universal public system and equitable access to healthcare would be undermined," Steeves said.

The decision was hailed as a "historic win" for public health care, but Day has long said that he expects to fight all the way to the Supreme Court of Canada.

Health-care system strained across the country

When the appeal court's judgment is made public on Friday, it will land in a very different world from when Day began his legal crusade against the province in 2009.

The COVID-19 pandemic has drastically altered the health-care landscape in B.C., and the strains on the public system have become glaringly obvious.

Recent months have seen a slew of reports from across the province about long wait times for cancer treatment, health-care workers burning out and leaving their jobs and hospital emergency rooms closing because there aren't enough doctors and nurses to staff them.

It's not just a B.C. issue though. Earlier this week, Canada's premiers ended a two-day summit in Victoria by calling on the federal government to sit down with them to discuss the future of health-care funding, as resources across the country are stretched thin.

Darryl Dyck/The Canadian Press
Darryl Dyck/The Canadian Press

Day opened the Cambie Surgery Centre in 1996, billing privately for a variety of different procedures, including orthopedic surgeries, screening colonoscopies and oral and plastic surgery. From 2004 to about 2013, the clinic contracted with health authorities to provide some services through the provincial Medical Services Plan.

Day's legal challenge, filed with four patients as co-plaintiffs, sought to have sections of the Medicare Protection Act declared violations of the Canadian Charter of Rights and Freedoms.

The trial lasted 194 days and heard evidence from 17 patients, 36 doctors and 17 representatives of health authorities and the province. A total of 590 exhibits were admitted on the record, including 40 expert reports.

In his 2020 judgment, Steeves wrote that he saw nothing to suggest unrestrained private health care would reduce wait times in the public system.

"There is expert evidence that wait times would actually increase," the judge said. "This would cause further inequitable access to timely care."

He acknowledged that long wait times have caused prolonged pain and suffering for some patients but said a two-tiered system could encourage "perverse incentives and unethical behaviour by healthcare providers" to direct some patients toward private health care.

"There is a real and substantive risk that the public system and its patients would be worse off as a result of allowing duplicative private health care," Steeves wrote.

The B.C. Court of Appeal is expected to post its judgment on the appeal online at about 10 a.m. PT Friday.

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