Doctor Prepared to Take Challenge of BC’s Public Health-Care Rules to Canada’s Top Court

BC Supreme Court rejects constitutional challenge to have laws that make up BC's single-payer health insurance system struck down

Dr. Brian Day
Dr. Brian Day, medical director of the Cambie Surgery Centre, at his office in Vancouver in a file photo. (The Canadian Press/Darryl Dyck)

A Vancouver surgeon who spent 11 years battling the ban on private health care in British Columbia is not giving up. The B.C. Supreme Court rejected Dr. Brian Day’s constitutional challenge, but he says he’s ready to fight the issue all the way to the Supreme Court of Canada.

An 880-page ruling by Justice John Steeves of the B.C. Supreme Court on Sept. 10, 2020 upheld that the province’s Medicare Protection Act (MPA) did not violate the Charter rights of patients who wished to pay for private care when they were forced to wait in the public system.

Day, owner of the for-profit Cambie Surgery Centre, led plaintiffs in the legal challenge to overturn MPA provisions that prohibit physicians from earning income from both the publicly funded system and private clinics and that also limit extra billing and ban health insurance for services already covered under the public plan.

In 2005, Dr. Jacques Chaoulli successfully challenged Quebec’s ban on private health care because the public system rationed the amount of care offered while legally banning the alternative of paying for services. In 2009, Day, who later became head of the Canadian Medical Association, launched a similar challenge in B.C.

“It sounds extreme, but it was literally about giving citizens in this province the same rights that Quebecers have under the Charter of Rights and the same rights that citizens in every other country already have,” Day said in an interview.

“One of our plaintiffs was a young man who waited 27 months for his surgery on the spine at the age of 15 or so. And he has ended up in a wheelchair paralyzed for life. His time that he waited was four times the maximum medically accepted time for surgery, and that has been condoned by the decision.”

Advocates for the status quo fear that the private system will take resources away from the public system and make it worse. The B.C. Health Coalition and Canadian Doctors for Medicare, which were intervenors in the case, applauded the decision.

“As a group of patients, doctors, and health-care advocates, we became involved in this case in order to defend and protect public health care,” said Edith MacHattie, co-chair of the BC Health Coalition.

“This is a victory for everyone who uses health care in Canada. Even though the attack had been launched in B.C., it took aim at the very heart of the Canada Health Act and every provincial health care insurance plan.”

BY LEE HARDING

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