Cambie Surgeries v BC: A Constitutional Right to Access Private Heath Care?

Reduced waitlists. More immediate access to diagnostic services. Less time spent waiting for surgery. All sound like luxuries compared to our current health care system, but there’s a catch: only patients who can afford private health care may access them. People may agree or disagree with the idea of a two-tier health care system, but Cambie Surgeries v BC asks: is it a constitutional right?

Cambie Surgeries Corp, its sister company, Specialist Referral Clinic, and four patient plaintiffs (collectively “the plaintiffs”) are suing the Government of British Columbia (“the Government”) for infringing on their section 7 and section 15 rights under the Charter of Rights and Freedoms [Charter]. Although the action started in 2009, final arguments began this week in the B.C. Supreme Court.

The plaintiffs are challenging ss. 14, 17, 18, and 45 (“the impugned provisions”) of BC’s Medical Protection Act (“MPA”), which prohibit the provision of medically-necessary private health care services in the province. The impugned provisions effectively bar physicians who work in the public system from providing services to patients privately. The bar is subject to certain exceptions, notably workplace injuries and diseases.

While the BC Government takes issue with the suggestion that the impugned provisions prevent the operation of a private system, the plaintiffs argue that the legislation has the practical effect of a prohibition. This is primarily because it is very unlikely for physicians to give up enrollment in the public system to work exclusively in the private and since patients have difficulty purchasing private medical services under the regime.

This post considers the purpose of the Government’s prohibitions on private medical practice and the plaintiffs’ corresponding s.7 claim.

History of the MPA and its Enforcement in British Columbia

For the last 20 years, the Government did not enforce the impugned provisions and turned a blind eye to the operation in BC of private clinics such as Cambie Surgeries Corporation.  It cited the long wait times and the excess surgical capacity physicians had available as justification for non-enforcement. Consequently, British Columbians with the ability to pay have had access to private surgeries over the last two decades.

However, in 2018, the Government reversed course and began fining physicians who operated in dual public-private practice. It targeted physicians who provided publicly-available health care services privately at a cost.

Section 7

The plaintiffs’ s.7 claim rests on the assertion that the public health care system’s failure to provide effective treatment within a reasonable amount of time causes long wait times that lead patients to experience physical and/or psychological harm. In enforcing the impugned provisions, the Government prevents patients from obtaining faster diagnosis and treatment and, in doing so, breaches patients’ s.7 rights. In other words, the plaintiffs argue that while the government does not have a constitutional duty to provide timely medical care, it cannot prevent patients from obtaining private medical services without breaching their s.7 rights (Plaintiffs Final Arguments (“PFA”), 29).

In order to establish a breach of section 7 rights, the plaintiffs have the burden of proving the following[1]:

1. Patient Plaintiffs have experienced a deprivation of life, liberty or security of the person,
2. The Impugned Provisions have sufficient casual connection to such deprivation and,
3. That deprivation is inconsistent with the principles of fundamental justice.

It should also be noted that, while s.7 claims are usually brought in the context of the administration of the criminal justice system and rarely in the administration of health care, the SCC has recently noted a broadening of the scope of s.7 (Association des jurists de justice v Canada, 2017 SCC 55 at para 49). The section’s scope is therefore not clearly known.  

Deprivation of Life, Liberty or Security of the Person

The plaintiffs argue that increased wait times can cause risks of poorer surgical outcomes, progression of a patient’s disease, permanent harm, disability or even death (PFA, 36). They support their argument with examples such as the case of a patient with kyphosis who, while waiting for surgery in the public system, may face progressive spinal deformity the longer the patient waits (PFA, 2678). In terms of the law, the plaintiffs cite Bedford to demonstrate that the mere risk of serious and irreversible harm to the life or security of the person is sufficient to demonstrate that a law is unconstitutional under s.7 (PFA, 2684). They draw parallels with cases such as Carter v Canada (AG), 2015 SCC 5, AG v Bedford, 2013 SCC 72, Canada (AG) v PHS Community Services, 2011 SCC 44, NB v G.(J.), [1999] 2 SCR 46, and R v Morgentaler, [1988] 1 SCR 30, to support the idea that physiological integrity, physical pain and stress, increased risk of death and intolerable suffering often support a finding of a breach of s.7.

The Government, on the other hand, argues that the harms claimed by the plaintiffs are merely speculative (Defendant’s Final Arguments (“DFA”), 947) and denies the existence of any evidentiary basis that proves waiting causes harm, specifically harm to the patient plaintiffs.

Notably, in granting injunctive relief to the plaintiffs, Justice Winteringham was satisfied that “at least some patients are at an increased risk of suffering physical and physiological harm by having to wait for public health care services” (para 185).

Casual Connection

The casual connection portion of the s.7 test is where the Government’s arguments get more of a footing. The Government rejects any assertion that the impugned provisions increase wait times in the public system and in fact goes as far as to say that the existence of a parallel private system may actually increase wait times in BC’s health care system overall (DFA, 841). The Government, through expert evidence, alleges that allowing a dual practices system would result in not only driving up the cost of existing services, but would also create a shortage of doctors, nurses and other clinicians and reduce the system’s capacity. Even if wait times do cause harm, the Government argues that it must be established that the impugned provisions cause additional harm.

The plaintiffs, on the other hand, argue that a breach of s.7 does not require the impugned provisions to be the immediate cause of the harm, but instead claim that s.7 will be violated if the impugned provisions are found to prevent people from avoiding such harm (PFA, 2782). The plaintiffs again cite leading s.7 cases including Victoria (City) v Adams, 2009 BCCA 563, Mortgentaler, PHS Community Services, Bedford and Carter when asserting such a standard. In effectively prohibiting the access of private care, the plaintiffs claim that the Government is preventing patients from alleviating or avoiding harms caused by long wait times in the public system.

Principles of Fundamental Justice

At the third step of the test for a breach of s.7, the breach is only material if it is inconsistent with the principles of fundamental justice. The purpose of the MPA and correspondingly, its impugned provisions, are of central focus in this part of the test. The purpose of the impugned provisions, as set out in section 2 of the MPA, is to preserve a publicly managed and fiscally sustainable health care system in which medically necessary services are available on the basis of need and not ability to pay (DFA, 2007).

The plaintiffs argue that the impugned provisions offend the principles of fundamental justice by being: arbitrary, overbroad, and grossly disproportionate. They claim that maintaining a public sector monopoly is not necessary to the provision of quality public health care. Furthermore, they argue that the Government already delivers healthcare based on wealth, location, type of condition, and source of injury, and that the MPA’s objective of “equal treatment for all based on needs” does not describe how the system in fact already operates (PFA, 143). The plaintiffs finally argue that the severe, permanent and often lethal impact of an effective ban on private services is grossly disproportionate to the MPA’s objective.

A major point of contention in the debate of a parallel private system is the inherent inequality it may promote. The Government claims that striking down the impugned provisions – and allowing private clinics – would create a health care system in which medical care is provided preferentially to wealthy members of society, a result that is directly contrary to the purpose of the Act (DFA, 2010). They cite concerns with the exodus of physicians from public into private health care system, since the remuneration at private clinics tends to be higher. The plaintiffs deny this would happen, claiming that the evidence demonstrates physicians are “fully committed” to the public system and only seek work in the private system to the extent that they have excess capacity available (PFA, 2697). Further, the plaintiffs state that if such an exodus existed, it can be prevented through other measures such as quotas, which don’t require an outright prohibition of private health services.

Section 1 

There is a chance that the impugned provisions may be found to breach s.7 but saved under s.1 justifications. However, we have yet to see a s.7 breach justified under s.1.

Chaoulli v. Quebec

This case is not the first time the question of private health care has made its way to through the court system.  In 2005, the SCC struck down laws in Quebec that prevented patients from obtaining private medical insurance (Chaoulli v Quebec, 2005 SCC 35 [Chaoulli]). At the time, Quebec’s public health care system was beset by long wait times. Because the Court based its ruling on the Quebec Charter, Canadians did not see a country-wide change in legislation allowing a two-tiered health care system. However, in Cambie Surgeries v BC, both parties’ submissions refer extensively to Chaoulli, despite the fact that the court’s ruling was not binding outside of the context of the Quebec Charter.

The Defendant points out that, unlike the court’s finding with respect to the Quebec Government in Chaoulli, the B.C. government has done much more to reduce wait times in public healthcare, including increased funding, additional OR capacity, and efficiency and technological advances. The Government also distinguishes Chaoulli because, in that case, Quebeckers were found to have the right to access private insurance only to the extent that the treating physicians were not concurrently employed in the public health care system.  In Cambie Surgeries, the plaintiffs argue for a system in which physicians can simultaneously bill in the public and private health care systems. Accordingly, the Government claims that Chaoulli is largely irrelevant to the current matter. Insofar as the Plaintiffs use the court’s reasoning in Chaoulli to bolster its s. 7 claim, the Defendant argues specific judgements which found a breach of section 7, like the one from MacLachlin C.J. and LeBell J., have been “widely discredited” (DFA, para. 1797).

Conclusion

As the final arguments from a drawn-out trial conclude, there is no doubt that the provinces have paid close attention to the arguments made by both sides of this dispute. The decision in Chaoulli is likely to play a significant role in shaping the BC Supreme Court’s decision in this case. It is not clear which way the Court will go, but what is clear is that the decision will have far-reaching implications, including the potential to transform the landscape of Canadian health care.

[1] Bedford v Canada (Attorney General), 2013 SCC 72 at paras 74-78; DFA at para 1822.