Canada's highest court refused to hear an April 6 appeal on access to private healthcare, despite Québecers having such access while other provinces do not.
In 2009, Dr. Brian Day launched court action against the B.C. government because the province's Medicare Protection Act restricted patients from accessing timely care.
The Medicare Protection Act denies doctors the ability to bill the government in the public system while also earning money from private clinics and billing patients or their insurance companies.
The Vancouver-based physician, who opened the Cambie Surgery Centre in 1996, claimed that prolonged wait times for medical procedures violated two Charter rights, including the person's right to life, liberty and security.
But after a 14-year legal battle, the Supreme Court of Canada dismissed Day's appeal filed last September after the B.C. Court of Appeal and B.C. Supreme Court rejected his application. He called the decision "a very sad day for Canadians."
B.C. Supreme Court's Justice John J. Steeves first ruled against the private, for-profit corporation in September 2020 — the B.C. Court of Appeal upheld that decision on July 15, 2022, prompting the final, now unsuccessful appeal to the Supreme Court of Canada.
"[The] Supreme Court decision is disappointing for patients," said Colin Craig, president of the policy think tank SecondStreet.org. "How can the Supreme Court conclude in 2005 that Québecers can pay for private surgery but decide today that the rest of the country cannot?"
"Patients would benefit if we kept the public system but allowed Canadians the option of paying for surgery at private clinics," contends Craig. "Countries with better performing universal health care systems allow this choice."
In 2005, the Supreme Court of Canada famously concluded in the Chaoulli v Quebec case that "Access to a waiting list is not access to health care." Because of this decision, the province of Québec could no longer ration health care to citizens while blocking them from paying for private health care.
Health policy experts long opposed private alternatives in Canada over concerns a two-tier system encouraged "queue-jumping" and favoured wealthy patients. However, Day contends the decision harms middle-class and lower-income Canadians.
"Wealthy Canadians have always gone down to the United States [for care], but where do middle-income and lower-income Canadians go?"
"Only one in five British Columbians referred to an oncologist received a first consultation within the recommended period of two weeks, despite the importance of timely treatment in cancer care," said Day in his arguments.
He also referenced a 2022 survey by One Persuades that showed that nearly 75% of Canadians want private insurance to access alternative care options in the face of long waiting lists.
On the question posed by Day, he said middle-class and lower-income Canadians "suffer and die on wait lists" because of the Medicare Protection Act.
According to SecondStreet.org, government data showed at least 41,620 patients have died while waiting for surgery and diagnostic scans since 2018/19.
The think tank said these patients died while waiting for procedures which could improve their quality of life and also included cases where patients died while waiting for potentially life-saving treatment.
From April 1, 2021, to March 31, 2022, B.C. Interior Health cancelled 224 surgeries due to patient death, with 46% (103 bookings) of them waiting over the benchmark wait time target for surgery at the date of patient death.
During the same period, the Interior Health Authority (IHA) cancelled 1,009 medical imaging bookings citing patient deaths, including 387 CT scans, 196 ultrasounds, and 108 echocardiograms. Nearly one-third (31%) of the 1,009 bookings waited over the priority wait time target.
"The Supreme Court's decision not only leaves Québecers with more health care rights than everyone else in Canada, but provincial governments will continue to be allowed to ration health care in this country while blocking patients from accessing private health care," reads a SecondStreet.org press release.
"No other developed nation on earth does this."
In a written statement, B.C. Health Minister Adrian Dix praised the decision and claimed the application by the Vancouver surgical centre is a "vindication" of the public health care system.
"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 said.
The health minister said the decision affirms ongoing efforts to preserve and uphold the public healthcare system based on the legal arguments at the B.C. Supreme Court and the B.C. Court of Appeal.
"As of March 2, 2023, we have performed surgeries for over 99% of patients whose procedures were postponed during the pandemic's various waves," said Dix. "We continue to make exceptional progress, performing more surgeries than ever."
He added that B.C. ranks first nationally for the percentage of patients meeting clinical benchmarks for cataract surgeries and second for both hip and knee replacements.
"It's a great victory for public health care," Dix told reporters at the provincial legislature on April 6.
B.C. Liberal Kevin Falcon accused the NDP government of "utter hypocrisy" when asked to comment on the ruling. While New Democrats celebrated the decision against the centre, they sent patients to private clinics to undergo surgery, with taxpayers picking up the tap, he said.
"They are doing that right now," he said, adding that the province would have an even bigger health crisis if not for the private clinics.
According to the Canadian Centre for Policy Alternatives BC Office and the B.C. Health Coalition, the province spent over $393 million in public funds for private surgical and medical imaging clinics over the six years from 2015 to 2020 for contracted procedures. The NDP assumed power in 2017.
Dix called these figures "inaccurate" and said the private clinics within the public health care system were consistent with the Medicare Protection Act and the Canada Health Act.