On April 6, 2023, the Supreme Court of Canada dismissed the Cambie Surgeries Corporation’s appeal, putting an end to a 14-year-long legal saga that threatened to undermine our nation’s public health care system and its core principle: that access to medical care must be based on need, not one’s ability to pay.
The corporation and its CEO, Dr. Brian Day, aimed to overturn three key provisions of BC’s Medicare Protection Act (MPA), which they argued violated the charter rights of patients waiting for care. In 2020, after four years of submissions and consideration, this claim was rejected by the BC Supreme Court, and again by the BC Court of Appeal in 2022.
Doctors in BC have always had the option to not enrol in the provincial plan (MSP). Non-enrolled physicians in BC can charge patients out of pocket (even for services and procedures that would normally be covered under the public plan) so long as those services are not provided in a hospital or community care facility. But for many years, enrolled doctors working at Cambie Surgeries Corporation contravened BC’s law by billing both the province and their patients.
Crucially, BC’s MPA mirrors the Canada Health Act (CHA), which has its own provisions guaranteeing accessibility to services without user charges or extra billing. If Cambie had succeeded, it’s unclear what the effect could have been on the CHA, including whether it would have been enforceable anywhere else in Canada.
Some have argued that the Supreme Court of Canada should have weighed in on what they perceive to be an area of unsettled constitutional law, pointing to the divided bench that struck down Quebec’s prohibition on private duplicative health insurance (but only for selected services already covered by public plans) in the 2005 case of Chaoulli v. Québec.
Yet, Cambie sought to go well beyond Chaoulli by also attempting to overturn laws prohibiting physician dual practice (so physicians could bill both patients and/or the province for the same medical services) and extra billing (so doctors could charge patients more than what the provincial plan pays).
Allowing both would have created strong incentives for a parallel profit-driven health care system, catering to those who could afford to pay to jump the queue. Research has consistently shown that health systems that rely more on private pay result in health care that is more expensive, of lower quality, inaccessible, and inequitable. As BC’s lower courts were found, private pay does more harm than good.
Take Australia as an example, which created a parallel private payment system in 1997. When comparing cataract surgeries, coronary bypass surgeries, and hip and knee replacements, Australians still wait longer than Canadians across the board. And those in the publicly funded system waited twice as long as those who paid privately.
Justice John J. Steeves, the BC trial judge in the Cambie case, sets out these reasons clearly in his 2020 decision: “The introduction of duplicative private health care would increase demand for public care, reduce the capacity of the public system to offer medical care, increase the public system’s costs, create perverse incentives for physicians, increase the risk of ethical lapses related to conflicts between the private and public practices of physicians, undermine political support for the public system, and exacerbate inequity in access to medically necessary care […] Indeed, it would create a second tier of preferential health care where access is contingent on a person’s ability to pay.”
Rather than allowing unfair access to care, let’s refocus on public solutions that will actually reduce waiting times for all and overcome the challenges facing our health care system.
Centralized referral pathways are one effective method. Currently, doctors make referrals to individual specialists, often with no way of knowing what the wait time will be. Referrals are frequently rejected outright because the specialists’ wait times are already too long, sending patients back to square one. A single common referral system would allow patients to be seen by the next available provider, creating equitable triaging of cases, which ensures that patients who need to be seen urgently are prioritized.
In rejecting Cambie Surgeries Corporation’s last-gasp appeal, the Supreme Court of Canada isn’t shying away from the hot-button issue of private pay for health care. Far from it. Rather, the concurring decisions of two lower courts stand, buttressed with evidence and testimony by more than 100 witnesses from around the world, and 14 years of litigation and deliberation. This affirms the principle, enshrined in the Canada Health Act, that we are all entitled to health care based on need, regardless of our ability to pay.
Dr. Bernard Ho is an emergency and family physician in Toronto. Devon Wilton is a graduating medical student at McMaster University beginning emergency medicine residency at the University of Toronto. They are both board members of Canadian Doctors for Medicare.
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