SCC won’t hear appeal of failed Charter challenge to restrictions on private health care in B.C.

By Cristin Schmitz

Law360 Canada (April 6, 2023, 3:23 PM EDT) -- The Supreme Court of Canada has denied leave to appeal to litigants who unsuccessfully pursued a bid in British Columbia’s courts to strike down restrictions that effectively prevent health-care providers from privately offering publicly insured medically necessary services at an additional cost.

On April 6, the top court declined to hear an appeal from Cambie Surgeries Corporation and other would-be appellants who urged that provincial prohibitions on the supply of private services, which make delivery of medically necessary services in private facilities economically non-viable for enrolled physicians, violate patients’ constitutional rights by increasing the patients’ risk of negative outcomes, due to the lengthy wait times for health-care services in the public health-care system.

The private surgical clinic in Vancouver, along with Specialist Referral Clinic, a medical clinic that provides speedy medical assessments, and several patients had argued unsuccessfully in the B.C. lower courts that because the impugned provisions effectively prevent patients’ access to private medical treatment when the public system cannot provide timely necessary care, there was a violation of patients’ s. 7 Charter right to life, liberty and security of the person, and the right not to be deprived thereof except in accordance with the principles of fundamental justice.  

The impugned ss. 17, 18 and 45 of the B.C. Medicare Protection Act effectively bar physicians from extra-billing patients via out-of-pocket payments, or through private insurance that covers what is already covered under the public medicare plan, and from working in a both a public and a private practice — a bar aimed at blocking preferential access to medical services by patients who can pay privately.

Dr. Brian Day of Cambie Surgeries Corporation told Law360 Canada that the top court “failed to even hear a case that is vitally important to all Canadians who live outside of Quebec. Over 11,500 died on wait lists in one year in 2021.”

“Canadians have been refused their constitutional right to life and told that the government has a right to subject us to a poorly performing monopoly, without any safety valve through the expansion of current extended health plans held by 70 per cent of Canadians that already cover medications, dentistry, ambulances etc.,” he said by email. “It’s now clear to all that medically unacceptable wait times have become forcibly embedded, and represent government policy in the publicly funded medicare system. The courts have endorsed this approach.”

Day added, “I believe the governments of Canada must bring our system into line with other, better-performing publicly funded medical systems throughout the world and, like them, make use of the desperately needed complementary healthcare available through private insurance that is legal in every other country and in Quebec.”

He said that the restrictive legislation does not exist in any other country and “even the B.C. appeal court had ruled that patients were suffering and dying as they wait.”

“Our healthcare system is in a crisis,” Day said. “Millions of Canadians suffering on wait lists understand that government is failing to provide timely care based on need.

“As a result of the Supreme Court’s failure to even consider the rights of Canadians suffering on wait lists, Canadians, such as the patient plaintiffs in our case who suffered such outcomes as permanent paralysis and death as they waited for care and justice, are being denied access to both.”

The Supreme Court’s dismissal of the leave application was hailed by Canadian Doctors for Medicare and the BC Health Coalition, who were among several groups that intervened to oppose the Charter challenge.

“As a group of patients, doctors and health care advocates, we joined this court case more than a decade ago because we believe in defending a public health care system premised on the understanding that care should be based on need, not the ability to pay,” the two groups said in an April 6 statement. In denying leave, the Supreme Court of Canada “upholds two previous decisions made by the BC Supreme Court on September 10, 2020 and the BC Court of Appeal on July 15, 2022 which both found that the evidence before the court showed that a duplicative private-pay health care system would increase wait times in the public system and cause harm to all who depend on it,” the interveners said.

“Allowing doctors to charge patients as much as the market will bear and forcing patients to pay out-of-pocket or purchase private insurance to access care are not innovative ideas and will do more harm than good,” the groups added. “Although this legal attack on our publicly-funded health care system has finally come to an end, the work to strengthen and improve our health care system is far from over. We will continue to uphold a publicly-funded health care system that is there for everyone when they need it and where no one is forced to pay for timely access to medically necessary care.”

B.C. Health Minister Adrian Dix said he is “pleased” by the court’s denial of leave to appeal.

“It sends a strong message that our nation’s highest court supports the principles of universal health care where access to medical care is determined by a patient’s needs, not their ability to pay their way to the front of the line,” he contended in a statement. “The decision rendered today bolsters our public health-care system and reaffirms the shared values that bind us as Canadians who deserve fair and equitable access to the public health-care system.”

Dix vowed that the B.C.government “will continue increasing operating room time and capacity, expanding training opportunities and bringing more private clinics under public control to ensure all people in B.C. receive the care they need, when they need it most.”

The Canadian Medical Association (CMA) said, “We are seeing growing discussion on privately funded care as patients struggle to gain access to care and health professionals continue to bear the burden of exhaustion and burnout. A wider public discussion on this matter is necessary.”

The group, with more than 75,000 physician-members, reiterated its position that “patients across Canada deserve to receive high quality health care in a timely fashion, regardless of their ability to pay. With an increase in federal health care funding, we urge governments across the country to continue to collaborate with each other, with health providers and with patients to implement innovations to improve access to care for Canadians.”

Legal analysts have predicted that, regardless of the outcome of the Cambie litigation, challenges to private health care prohibitions will continue “given the ever-increasing strains — and wait times — under our current system” — as will political debate and public pressure.

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