Ian Mulgrew

July 15, 2022

-Vancouver Sun


B.C.’s ban on doctors extra-billing and private health insurance does not violate the constitution although people are suffering and dying from waiting too long for necessary medical care, the province’s top court has concluded.

In a unanimous decision Friday, a three-justice division upheld sections of the B.C. Medical Protection Act that private clinics claimed violated the Charter of Rights and Freedoms.

B.C. Court of Appeal Chief Justice Robert Bauman along with Justices David Harris and Mari-Ann Fenlon unanimously agreed — contrary to the trial judge — that the impugned provisions infringed on some patient’s section 7 right to security of the person and their right to life.

The panel said patients were waiting beyond their wait time benchmarks for diagnostic or surgical procedures for life-threatening conditions and some faced an increased risk of dying as a result of the law.

Bauman and Harris, however, said these consequences were in accordance with the principles of fundamental justice and did not breach the charter.

Many valid laws deprive people of their right to life, liberty, or security of the person but that is unconstitutional only if it is not done in accordance with the principles of fundamental justice — for instance, if it arbitrary, overbroad or grossly disproportionate.

“Overall, we conclude that the fundamental purpose of the MPA is to ensure that access to necessary medical care for all insured beneficiaries is based on need and not on an individual’s ability to pay. We do not think that this purpose can be limited only to services provided within the public system as that system has been restrictively defined by the appellants. The objective is to ensure that all residents have access to necessary medical care based on need and not the ability to pay.”

If they were wrong in that analysis, the two justices said they would agree with Fenlon, who concluded the breach was justified under section one of the charter.

In the concurring decision, she the provisions were not unconstitutional because the government was justified abridging rights for a societal good.

Still, she lamented:

“For a court accustomed to protecting Charter rights of the parties who come before it, the conclusion we are compelled to reach is far from a satisfactory one. The record establishes that thousands of patients every year are waiting beyond medically acceptable wait times for care.”

She added:

“We reach the decision we do in this case, constrained by the record, and recognizing that the impugned provisions are upheld at the cost of real hardship and suffering to many for whom the public system is failing to provide timely necessary care.”

The B.C. Medicare Protection Act prevents doctors enrolled in the Medical Services Plan from billing above the public rate and effectively prevents the sale of private insurance that would cover the same medical services that are provided through MSP.

The ruling upheld an 880-page decision by B.C. Supreme Court Justice John Steeves in 2020.

After a 194-day trial that began in 2016, he concluded the provisions did not violate the rights of those who wanted to pay for private care when surgical waiting lists perniciously delayed access in the public system.

Steeves, who retired this year, found the extra-billing and private-insurance bans did prevent people from accessing private care for relief when the public system failed to provide timely medical treatment.

Some would suffer and be deprived of their right to security of the person, section seven of the Charter of Rights and Freedoms.

Bauman and Harris supported Steeves in reasoning that the sections were neither arbitrary, overbroad, or grossly disproportionate when considering the legislative objective of preserving the public healthcare system.

The private clinics behind the challenge unsuccessfully argued that patients needed a “safety valve” that could be provided and enhance the public system by allowing regulated private surgical services and private health insurance.

“This is such a lost opportunity,” downcast lead lawyer Peter Gall said on behalf of appellants Dr. Brian Day and the Cambie Surgery Centre.

“The courts had to unblock the political paralysis. Look at what’s happening in our health care system — people are dying and suffering. Our political system is blocked. The courts could have unblocked it and should have stepped in to unblock the political process. That’s what the charter was intended to do. I am so disappointed.”

He said the message to the Supreme Court of Canada would be –  “you have to step in and unblock it.”

Private clinics have existed in B.C. since the late 1990s and had become integrated with the public system, performing about 65,000 private surgeries annually for ICBC, WorkSafeBC and health authorities.

The plaintiffs pinned their hopes to a 2005 case from Quebec that relied on similar underlying principles and ended with the high bench deciding access to a waiting list wasn’t access to health care.