Should Canadians be allowed to pay for surgery to access it more quickly than what is otherwise offered in the public system? Does it violate the rights of Canadians that they are forced to accept the wait times in the public system, even though they are suffering while they await surgery?
A British Columbia court was recently asked to decide these very questions. Spoiler alert: Canadians’ rights are not infringed by the current laws that regulate the public system (at least for now; it is possible the decision will be appealed to a higher court).
In the lawsuit the plaintiff, a B.C surgeon who owns Cambie Surgeries Corporation, argued that “it is unconstitutional to prevent patients from accessing private medically necessary healthcare, including private surgeries, when they are unable to access timely care in the public system”. He and the other plaintiffs were concerned that wait times for elective surgeries are too long. They believe that a private system would provide a sort of “safety valve” to allow some patients to opt out of the public system at their own expense.
The plaintiffs provided examples of how individuals’ rights to life, liberty and security of the person are infringed by the current system (and the Court was actually persuaded by some of it). They talked about the prolonged pain and suffering and diminished quality of life of those who have to wait; the permanent and avoidable harm that can occur if medical care is delayed; and the psychological harm related to excessive wait times.
The Court heard a vast amount of evidence. There were dozens of witnesses, hundreds of exhibits, 40 expert reports, and multiple parties that made legal submissions.
The government and other parties who opposed the case were concerned that a two-tier system would emerge in which resources would be diverged from the public system. For example, public tax dollars are spent training physicians and nurses and if those professionals work in the private health sector, the taxpayers do not reap the rewards of that investment.
At the end of the day, the Court was concerned that allowing a private system to operate would likely have the following outcomes:
· increase demand for public care
· reduce the capacity of the public system to offer medical care
· 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
· exacerbate inequity in access to medically necessary care
· create a second tier of preferential healthcare where access is contingent on a person’s ability to pay
· result in a reduction in federal funding received by the province
The Court also pointed out that physicians who opt out of the main system are in fact allowed to offer medically required services to individuals within private clinics, they are just limited in terms of how much they can charge.
As this case was heard in B.C., it is not technically binding in Ontario. However, should a similar lawsuit be brought in Ontario there is no doubt the Cambie Surgeries Corporation case will be considered very persuasive.
through a difficult time?
