Four things you should know about the pending Charter challenge against medicare

By Colleen Flood and Kathleen O'Grady

A version of this commentary appeared in the Globe and Mail, the Medical Post and the Windsor Star

Four things you should know about the pending Charter challenge against medicareA long-running dispute between Dr. Brian Day, the co-owner of Cambie Surgeries Corporation and the British Columbia government may finally be resolved in the BC Supreme Court next year — and the ruling could transform the Canadian health system from coast to coast.

The case emerged in response to an audit of Cambie Surgeries, a private for-profit corporation by the BC Medical Services Commission.  The audit found from a sample of Cambie’s billing that it (and another private clinic) had charged patients hundreds of thousands of dollars more for health services covered by medicare than is permitted by law.  Dr. Day and Cambie Surgeries claim that the law preventing a doctor charging patients more is unconstitutional.

Dr. Day’s challenge builds on the legacy of a 2005 decision by the Supreme Court of Canada overturning a Quebec ban on private health insurance for medically necessary care.  But this case goes much further, not only challenging the ban on private health insurance to cover medically necessary care, but also the limits on extra-billing and the prohibition against doctors working for both the public and private health systems at the same time.

A trial date was set to begin in 2012, but was adjourned until March 2015 so that the parties could resolve their dispute out of court and reach a settlement.  It now appears such a resolution has not been reached and the court proceedings resume in September 2016.

Here’s why this case matters:

1. Legal precedent: Whatever way the case is decided at trial, it is likely to be appealed and eventually reviewed by the Supreme Court.  A decision from this level will mean all provincial and territorial governments will have to revisit equivalent laws.  The foundational pillars of Canadian medicare — equitable access and preventing two-tier care — could well be vanquished in the process.

2. Wait times: Dr. Day will likely argue that Canada performs poorly on wait times compared to other countries, and that other countries allow two-tier care; thus, if Canada is allowed two-tier care, our wait times would improve.  But this approach is too simplistic.

Common comparisons to the English health system, for example, fail to recall that despite having two-tiers, they have in the past suffered horrendously long-wait times.  Recent efforts to tackle wait times have come from within the public system, with initiatives like wait time guarantees and tying payment for public officials to wait times targets. 

By looking to England we are not measuring like to like but apples to oranges.  English doctors are generally full-time salaried employees while most Canadian physicians bill medicare on a fee-for-service basis.  Consequently, the repercussions for permitting extra billing in Canada could eviscerate our publicly funded system, whereas this is not the case in England.  Imagine if most doctors in Canada could bill, as those at the Cambie clinic have done, whatever they want in addition to what they are paid by governments?

3. Conflict-of-interest incentives: Evidence suggests there is a danger in providing a perverse incentive for physicians who are permitted to work in both public and private health systems at the same time.  Wait times may grow for patients left in the public system as specialists drive traffic to their more lucrative private practice.

Sound improbable? Academic studies have noted this trend in specific clinics that permit simultaneous private-public practice.  And recent UK news reports have profiled a case where a surgeon bumped a public patient in need of a transplant for his private-pay patient. 

4. Competition: Proponents of privatized health services often claim that it would add a healthy dose of competition, jolting the “monopoly” of public healthcare from its apathy.  But free markets don’t work well in healthcare. Why? Because public providers and private providers won’t truly compete if the laws Dr. Day challenges are struck down.  Instead, those with means and/or private insurance will buy their way to the front of queues.  Public coverage for the poor will likely suffer, as is clearly evident in the U.S., with many doctors refusing to provide care to medicaid (low-income) patients in preference for those covered by higher-paying private insurance.

Of course, this is all based on an outcome that is not yet known.  It may be that the Charter challenge in BC is unsuccessful but clearly the stakes for ordinary Canadians are very high.  Sadly Dr. Day is not bringing a challenge for all Canadians.  Isn’t it long past time our governments and our doctors work to ensure all Canadians — and not just those who can afford to pay — receive timely care? 

Colleen M. Flood is Professor and University Research Chair in Health Law & Policy at the University of Ottawa and an expert advisor with EvidenceNetwork.ca.  Kathleen O’Grady is a Research Associate at the Simone de Beauvoir Institute, Concordia University and Managing Editor of EvidenceNetwork.ca.

February 2015

Listen to our interview with Colleen Flood

March 2015

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