By: Morgan Martel
Just this September, the British Columbia Supreme Court upheld a ruling from a lower court that deemed B.C.’s ban on private insurance and extra-billing in medicine to be withstanding the Canadian constitution. This ruling comes from a Charter challenge put forth by Dr. Brian Day claiming that extensive wait times in public health care violate a person’s s.7 Charter rights to life, liberty and security of the person. The court battle began thirteen years ago in the BC lower courts driven by cases of Canadians dying in emergency waiting rooms due to overcrowded hospitals and lengthy wait times. Both the lower court and the BCSC have upheld the constitutionality of the Medicare Protection Act that bans private insurance and extra-billing despite agonizing wait times that have only intensified during the COVID-19 pandemic.
Background of Canadian Health Law
Given these strenuous wait times in Canadian healthcare facilities, there is intense debate surrounding to what extent patients should be able to pay for doctor's services directly and skip over lengthy public sector waiting lists. Health care law in Canada is complex with regulations differing among provinces, thus, for ease, we will only discuss private insurance and extra-billing; those items challenged in Cambie Surgeries Corporation v. British Columbia (Attorney General) (Cambie Surgeries).
Extra-billing refers to a physician charging additional costs for a service that is already covered by the public health plan. The Canada Health Act, which every province must adhere to, requires provincial bans on extra-billing (Flood and Archibald, 2001). If a province does choose to engage in extra-billing, the federal government must “claw back” its funding support, dollar for dollar, from that province (Flood and Archibald, 2001). The British Columbian government directly prohibits extra-billing for opted-in physicians (those who are paid by the province) which Dr. Day challenges in Cambie Surgeries.
Bans on private insurance involve forbidding the use of private insurance on publicly funded medical services (Flood and Archibald, 2001). Six out of ten provinces directly prohibit this method of private insurance billing, including British Columbia (Flood and Archibald, 2001). By banning the use of private insurance and extra billing for publicly funded hospital stays and medical procedures, the demand for private doctors is heavily dampened given that only those with enough money to pay for these operations out-of-pocket can use these services.
Case for Privatized Health Care in Canada
There is no doubt that the current public health care system in Canada is flawed. Long wait room times and a shortage of general practitioners has left Canadians frustrated with their barriers to access medical care. Thus, the question begs to be asked, what is the best policy to remedy this situation? Some, like Dr. Brian Day, argue that the solution is a private-public system where extra-billing and private insurance can be used to re-direct those with a higher ability to pay away from the publicly funded system freeing up resources for those most in need. In Cambie Surgeries, Day and other private-option supporters argue that by banning accessible private health-care options Canadians are being deprived of their rights to life, liberty, and security of the person since they are forced to wait in sometimes fatally long wait times (Cambie Surgeries, para.30). Via a case study of the health care system in Spain, research suggests that a public-private health care system can successfully decrease health-care wait times and reduce public health expenditure (Cantarero-Prieto et al., 2017).
Case Against Privatized Health Care in Canada
Despite these considerations, many, including the B.C. Supreme Court, remain vehemently against a two-tiered system. Via that same study in Spain, research finds that the use of a public-private healthcare divide does in fact widen the inequality gap for disadvantaged social groups and classes (Cantarero-Prieto et al., 2017). Bringing the inequality gap is precisely the goal of the bans on extra-billing and private insurance in the Medicare Protection Act. As well, the two-tier system fails to address complications in Canadian health care that arise from professional shortages for roles such as doctors and nurses.
Can the Ban Be Said to Offend S.7?
Given the above, the BCSC ultimately ruled that the challenged provisions do in fact violate a person’s right to security of the person for those who have degenerative or deteriorating conditions and are harmed by the delays in the public system (Cambie Surgereies, para 1884). However, the Court ultimately invoked the Oakes Test to find that the Medicare Protection Act can be upheld in a free and democratic society. The Court found that the provisions are not arbitrary, are not overbroad and are not grossly disproportionate to the s.7 right being violated. This case is set to be appealed to the Supreme Court of Canada whose decision on the public vs. private debate will ultimately shape the future of Canadian health care for generations to come.
References
Cambie Surgeries Corporation v. British Columbia (Attorney General), 2020 BCSC 1310, paras 30-. https://www.canlii.org/en/bc/bcsc/doc/2020/2020bcsc1310/2020bcsc1310.pdf
Cantarero-Prieto et al. (November 13, 2017). Effect of having private health insurance on the
use of health care services: the case of Spain. BMC Health Services Research.
4.
Flood, C.M. and Archibald, T. (March 20, 2001). The illegality of private health care in
Canada. PubMed Central.
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