COLLEEN M. FLOOD AND BRYAN THOMAS
GUEST OPINION
Closing arguments were made last week in Cambie Surgeries Corporation v. British Columbia, a multi-year trial that seeks to overturn laws that restrict opportunities for two-tier health care.
The claimants, led by orthopedic surgeon and co-owner of the Cambie Clinic, Dr. Brian Day, argue that long wait times in the public system infringe the charter right to “life, liberty and security of the person.”
They ask that the court remedy the problem, not by fixing wait times for all patients, but by clearing the way for doctors to work in both the public plan, and in addition, be able to bill patients and/or their private insurers.
The case builds on a controversial 2005 ruling by the Supreme Court of Canada, Chaoulli v. Quebec, which overturned a ban on private health insurance for medically necessary care. Chaoulli was decided under the Quebec Charter of Human Rights, not the Canadian Charter, so its application to other provinces has, to date, been unsettled. Cambie seeks to change that.
Cambie goes much further than Chaoulli, seeking to overturn all of the B.C. Medicare Protection Act’s restrictions on two-tier care – not only the law restricting the sale of private insurance for medically necessary care, but also provisions that bar doctors billing public medicare from moonlighting in private, for-profit care (what is called ‘dual practice’).
Indeed, even the province’s ban on extra-billing – barring doctors from imposing surcharges on public patients – are swept up in the challenge.
While Cambie says they acknowledge the legitimacy of a ban on extra-billing, that hasn’t stopped them from demanding a sweeping remedy from the court – declaring invalid all of the province’s restrictions on private care, including the prohibition on extra-billing, while temporarily suspending this declaration while government (if it wishes) develops replacement legislation.
As one can see, the stakes are enormous for the future of public medicare.
At the heart of this case are complex question about the interaction of public and private health-care systems. In making the case for more two-tier care, Dr. Day tells an optimistic story – that expanding the private tier will relieve pressure on the public system, or at the very least, do no harm to the public system.
On the other hand, many health economists point to evidence that a flourishing twotier system will worsen wait times, as dual practice doctors prioritize their more profitable ‘healthy and wealthy’ private patients at the expense of patients queuing in the public system, where care is, in principle, rationed according to medical need.
Liberalizing dual practice will also worsen Canada’s stark geographic disparities in access to care, as doctors migrate to urban centers, offering premium care to the worried well. In theory, governments might offer higher remuneration to doctors as an incentive for loyalty to public medicare – but this will likely be expensive and difficult to negotiate, given how Canadian physicians doggedly protect their incomes and professional autonomy.
If Dr. Day succeeds in his challenge, it is likely that the case will be appealed to the Supreme Court of Canada, with potential reverberations for universal health care nationwide. At that stage, governments will face a major choice: either acquiesce to Cambie-style court challenges or act decisively to reassert the principle of access according to need.
For right-leaning governments eager for a rapid growth in privatization, the conditions on the ground are quite favourable. With some two-thirds of Canadians already holding private insurance for goods and services excluded from medicare – things like prescription drugs and dental care – the country is well-positioned for a rapid rollout of private coverage for hospital and physician services.
By the same token, governments committed to preserving the spirit of medicare must approach this constitutional challenge with a sense of urgency. Quebec’s response to the outcome in Chaoulli is instructive: the province liberalized parallel private insurance only for specific categories of care (e.g., cataract, knee and hip surgeries), while establishing wait time guarantees for those same services – a strategy which at least slowed widespread proliferation of two-tier care.
If it comes to be that other provinces are spurred by Chaoulli and now Cambie to tackle the problem of wait times, that will be a silver lining from an otherwise unfortunate judicial adventure into complex questions of health policy.
Colleen M. Flood is the Research Chair in Health Law & Policy at the University of Ottawa. Bryan Thomas is an adjunct professor, Faculty of Law at the University of Ottawa.
