What is BC’s Cambie Surgery Centre?
Who is Brian Day, MD?
What is the court case in British Colombia about?
What is the Canada Health Act?
Why is it taking so long?
What will happen if the plaintiffs win?
Does the outcome of this trial have direct National impact or only directly affect practice in BC?
“Cambie Surgeries Corporation (CSC)” opened in 1996 and the Specialist Referral Clinic (SRC) followed in 2002. Owned by a group of independent investors and doctors, these facilities offer surgery and specialist consultations.
CSC offers privately funded surgery in Orthopaedics; Plastic Surgery; Gynaecology; Neurosurgery; Ophthalmology; Urology; Otolaryngology; and Paediatric Dentistry.
SRC offers privately funded specialist consultations in Orthopaedics, Cardiology, Gastroenterology, General Surgery, Gynaecology, Neurology, Neurosurgery, Otolaryngology, Plastic Surgery, Radiology, Respirology, Rheumatology, Vascular Surgery.
Dr. Brian Day, President and CEO of CSC and SRC, is an orthopaedic surgeon and advocate for reforms to Canada’s health care system that would allow patients to pay privately for faster access to medically necessary care.
What is the court case in British Colombia about?
The plaintiffs in this trial—Cambie Surgeries Corporation (CSC), Specialist Referral Clinic Inc., and four patients (led by Dr. Brian Day)—are challenging the constitutionality of sections of BC’s Medicare Protection Act (MPA), including the prohibition on physicians privately billing patients while those physicians are enrolled in BC’s publicly-funded Medical Services Plan (MSP). The purpose of the MPA is “to preserve a publicly managed and fiscally sustainable health care system for British Columbia in which access to necessary medical care is based on need and not an individual's ability to pay.” The plaintiffs claim that BC’s law (which parallels the Canada Health Act) is unconstitutional.
The plaintiffs seek to overturn three key provisions of BC’s Medicare Protection Act which they claim violate Canadians’ rights to life, liberty, and security of the person under the Canadian Charter of Rights and Freedoms: (1) the prohibition on selling private health insurance that duplicates what is already covered under BC’s MSP; (2) the implied limits on enrolled physicians working in “dual practice”; (3) the limits on extra billing patients for services covered under BC’s MSP.
The plaintiffs’ claim that the publicly-funded system compels some patients in some jurisdictions to wait for some medically necessary services (in particular, elective surgery and non-urgent specialist appointments). They believe patients should have the right to obtain such services more quickly by paying privately, either out-of-pocket or through private insurance. Indeed, some BC physicians—including some who treat patients at Cambie Surgery Centre and the Specialist Referral Clinic—have already been unlawfully charging BC patients privately for faster access to services otherwise covered by MSP.
The plaintiffs seek a system of “dual practice” in which physicians can be paid from both public and private purses, including through private duplicative health insurance covering the same medically required hospital and physician care already covered under MSP.
The plaintiffs argue that even physicians still enrolled in the Medicare Service Plan should be allowed to “extra bill” patients (through out-of-pocket payment and private insurance) who do not wish to wait their turn for publicly-funded care. Their rationale is that not allowing patients to pay privately interferes with their health as protected by the Charter. They claim that since BC physicians not enrolled in MSP are already permitted to collect out-of-pocket payments for care delivered outside of hospitals or community care facilities, then private duplicative insurance should also be for sale to BC patients who do not wish to wait for publicly-funded care, even when treated by physicians still enrolled in MSP.
The defendants in this trial—the Medical Services Commission of British Columbia, the Ministry of Health of British Columbia, and the Attorney General of British Columbia—are upholding the provisions of BC’s Medicare Protection Act.
The Canada Health Act (CHA, federal legislation enacted in 1984) strongly discourages private payment, such as extra billing and user charges, for hospital and physician services covered under Medicare. If provinces allow private payment for such services, the federal government is mandated to withhold an equivalent amount from federal cash transfers. With some exceptions, this threat of financial penalty for failing to comply with the legislation has been effective in restricting extra billing and other user fees.
The CHA is silent on where care is delivered. It takes no position on whether health care should be delivered in publicly owned facilities, or private not-for-profit facilities, or private for-profit facilities.
The trial has had repeated delays, largely due to lawyers for both sides carefully applying the normal rules of evidence. According to the Chief Justice of the Supreme Court of British Columbia, delays in this case have been caused by “disputes between the parties over evidentiary issues”. When either side believes that inadmissible evidence is before the court, that side files an application to challenge that evidence. It takes time for the court to hear all views on that evidence, and for the judge to rule on its admissibility. Also, in their efforts to persuade the court, both sides have many witnesses, each of whom needs time to be examined and cross-examined.
Regardless of who wins, there will likely be an appeal to the Supreme Court of Canada. In the interim, if the plaintiffs win governments would have to abide by the court’s ruling. This could mean, for example, that physicians would be legally able to extra bill patients for care. Even while we await the conclusion of this trial, some physicians are already extra-billing BC patients for medically required care, despite that being currently unlawful. Private insurance companies could begin selling insurance that would duplicate what’s covered under MSP. Patients who could afford it could buy private insurance to supplement their publicly-funded benefits. Because some physicians would give preferential access to patients who could pay with private insurance or out-of-pocket, wait times would likely increase for those who could not afford to pay. Instead of care being available based solely on medical need, patients’ ability to pay would become a factor. The overall effect on the public health care system would be to undermine the principles of universal and equitable access to care, which are critical to maintaining and improving the health and well-being of all people in Canada.
The outcome of this trial could affect both BC and the rest of Canada. If certain provisions of the BC Medicare Protection Act were to be deemed unconstitutional, then similar provisions in other provincial laws, and in the Canada Health Act, would effectively be unenforceable. This would have a ripple effect across the provinces and territories, undermining Canada’s value of fair access to health care based on need, not ability to pay.
With respect to dual practice, the legislation does not specifically ban dual practice as such. The legislation prohibits billing beneficiaries for (or in connection with) benefits. It does not prohibit billing beneficiaries for services that would be benefits if they had been provided by an enrolled physician, so long as the person providing the service is not an enrolled physician. The effect is that enrolled physicians cannot realistically practice in private clinics, but the legislation does not per se prohibit it.