The most significant trial in recent Canadian history began this week in B.C. Supreme Court. The litigants are Dr. Brian Day, who runs two private clinics in Vancouver, and the provincial Medical Services Commission, which accuses Day of breaking the law.
The matters at stake are of critical importance — they go to the heart of our public health-care system. Although the losing party will likely appeal the decision, the outcome will have national reverberations.
Two principal issues lie at the heart of this dispute. The first is an allegation that physicians at Day’s clinics were extra-billing — charging the Medical Services Plan for an insured service while billing the patient an add-on fee. The Canada Health Act forbids this, and if the facts are as the commission alleges, this might be the easier of the two issues to resolve.
The second is that some physicians at Day’s clinics have failed to opt out of the public system. That is contrary to provincial legislation.
B.C. law makes it legal for doctors to de-enrol from MSP if they wish. If they do so, they can charge patients whatever they choose. However, they have to leave the public system entirely. They cannot retain a foot in both.
This option was offered in the expectation that few physicians would actually take it, because of the financial risks involved. And indeed, few doctors have gone this route.
But if some of Day’s staff have not de-enrolled, then technically, they are trying to have it both ways. This might seem a simple matter to resolve. Either the physicians are de-enrolled, or they are not.
But constitutionally speaking, things are not so clear. Day believes the government has no right to impose a policy that makes it difficult for doctors to practise in private, fee-paying clinics.
His case is based on Section 7 of the charter, which guarantees Canadians the right to life, liberty and security of the person. Day argues that if patients cannot receive timely treatment within the public system, they should be permitted to seek private care. Anything done to deter that option is unconstitutional.
Day might, for instance, point to a situation that occurred on Vancouver Island three years ago. Island Health introduced a new colonoscopy screening program, which was promptly swamped. Until the backlog was cleared, patients with symptoms that sometimes indicate colon cancer had to wait six months or more for the procedure. Day’s clinic offered same-week service.
The government’s response is that while delays do sometimes occur within the public system, they will only be made worse if physicians choose to leave.
That is to say, private clinics do not provide a safety valve that backstops the public system. Rather, they operate in direct competition with it.
Moreover, medical care is not just another commodity, to be bought and sold for profit. Patients, particularly those with life-threatening conditions, are vulnerable to being taken advantage of.
It is a duty of government to see this does not happen, and that everyone receives care on the basis of need, not wealth.
An earlier case, involving private care in Quebec, went to the Supreme Court of Canada in 2005. The court decided in favour of the private operator, on grounds similar to those Day argues.
However, the ruling, based on Quebec’s charter, applied only in that province. And many of the facts were different. The decision in Day’s case, based as it is on Canada’s charter, will apply across the country.
Essentially, there are two competing visions of Canada here. One believes the well-to-do should have their own health-care system. The other emphasizes equal treatment for all Canadians.
The stakes could not be higher.
