Doctor’s appeal over right to pay for private health care dismissed by B.C. court

B.C.’s highest court has dismissed an appeal of a landmark decision upholding the province’s public health care laws.

A panel of three justices at the B.C. Court of Appeal on Friday rejected Dr. Brian Day’s argument that a lower court judge had made critical errors of fact in denying his constitutional challenge to legislation that prevents patients from accessing private care when wait times in the public system are too long.

In his majority reasons for judgment, Chief Justice Robert Bauman wrote that while long waits for treatment have denied some patients their charter rights to life and security of the person, those violations are permitted under the principles of fundamental justice.

Bauman said the laws that Day objects to are meant to ensure equitable provision of health care, and prevent the creation of a two-tier system where access to potentially life-saving treatment depends on wealth.

“We accept the personal interest British Columbians have in avoiding a lengthy wait when they have resources to avail themselves of private care to avoid an increased risk of death. We do not minimize the seriousness of that issue,” the judgment says.

“But, we also recognize that the objective of the MPA [Medicare Protection Act] includes ensuring that individuals without the ability to pay are not thereby deprived of medically necessary care.”

Challenge expected to land in Supreme Court

The appeal court judgment closes another chapter in a legal saga that began in 2009, but the story is likely far from over. Day has long said he expects to fight his case all the way to the Supreme Court of Canada.

Day opened the Cambie Surgery Centre in 1996, billing privately for a variety of different procedures, including orthopedic surgeries, screening colonoscopies and oral and plastic surgery. From 2004 to about 2013, the clinic contracted with health authorities to provide some services through the provincial Medical Services Plan.

Dr. Brian Day, a self-described champion of privatized health care, is pictured at his office in Vancouver on Aug. 31, 2016. (Darryl Dyck/The Canadian Press)

His constitutional challenge, filed with four patients as co-plaintiffs, took issue with two sections of the MPA that prevent doctors in B.C. from billing patients above the rate paid through the Medical Services Plan (MSP) and that prohibit the sale of private insurance that covers treatment provided under MSP.

B.C. Supreme Court Justice John J. Steeves dismissed the challenge in September 2020 in a judgment that ran more than 800 pages and was hailed as a “historic win” for public health care.

Bauman’s reasons for upholding Steeves’ conclusions were written with the agreement of Justice David Harris.

The third appeal court judge, Justice Lauri Ann Fenlon, concurred with the decision to dismiss Day’s appeal, but found that long wait times in the public system are “grossly disproportionate” to the objectives of B.C.’s law.

However, she said this violation of the principles of fundamental justice is justified under Section 1 of the Canadian Charter of Rights and Freedoms, which allows for “reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

Fenlon wrote that while the current system prolongs suffering and causes harm for those who would be able to pay for private treatment, she had to consider the common good.

“The negative consequences of striking the impugned provisions and allowing private care would cause those who could not avail themselves of private care — the most vulnerable in society — to wait even longer for care, thereby potentially increasing their risk of harm — beyond that we have found to exist under the current regime,” she said in her concurring reasons.

The original trial in B.C. Supreme Court lasted 194 days and heard evidence from 17 patients, 36 doctors and 17 representatives of health authorities and the province. A total of 590 exhibits were admitted on the record, including 40 expert reports.

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