No Constitutional Right to Private Healthcare, rules Cambie Surgeries v BC

At the brink of the neighbouring United States presidential election where the recurring public versus private debate healthcare continues to wage on, the Canadian universal healthcare system figures in as either an affordable haven or a wait time nightmare—depending on who you ask.

However, contrary to its popular characterization, Canada does not have a completely socialized healthcare system. Rather, its healthcare insurance is state funded yet privately delivered. Physicians are not government employees but independent contractors who bill the government for their work on a fee-for-service basis. The Canada Health Act, 1985, c C-6 [CHA] underscores the principles of universal and accessible healthcare throughout the country, guiding the public insurance programs. 

Canada’s healthcare system is at issue in the British Columbia Supreme Court (“BCSC”) decision in September, which determined whether physicians can legally have a dual-practice for medically necessary services offered through both public and private insurance—also known as a two-tiered system. Justice John Steeves’ 880-page decision reviews the 194 trial days of arguments and evidence from for-profit Cambie Surgeries Corporation and other plaintiffs, the government of British Columbia (“BC”) as defendant, and several intervenors including health organizations and patients. Cambie Surgeries Corporation v British Columbia (Attorney General), 2020 BCSC 1310 [Cambie Surgeries] ultimately ruled that access to private healthcare is not a constitutionally protected right and hence legislative prohibitions against it can stand.

Legal Background

In BC, the Medical Services Plan (“MSP”) is the public program that pays for all medically necessary healthcare services and is administered through public hospitals and private family clinics or laboratories in accordance with the Medicare Protection Act, RSBC 1996 c 286 [MPA]. There are many privately funded physicians in BC that operate outside the MSP—including the WorkSafeBC plan for injured workers exempt from the MPA—which constitutes BC’s legal private healthcare system. The MPA, however, prohibits private health insurance and regulates prices for medically necessary services to its beneficiaries—outlined in sections 14, 17, 18, and 45 (“impugned provisions”). Despite the prohibitions, the corporate plaintiffs Cambie Surgeries and the Specialist Referral Clinic, both run by Dr. Brian Day, have been illegally providing privately funded services for those services covered by the MSP for the past 20 years. They argue that the MPA provisions create unreasonable wait times for patients in the public system which violates their Canadian Charter of Rights and Freedoms [Charter], s. 7 right to life liberty and security of person. They also claim the provisions violate the s. 15 Charter right to equality on the basis of age and disability discrimination.

The previous Supreme Court of Canada (“SCC”) case concerning public versus private healthcare is Chaoulli v Quebec (Attorney General), 2005 SCC 35 [Chaoulli], which ruled similar prohibitions to s. 45 of the MPA on private insurance violated the s. 7 Charter right. However, Chaoulli is only binding in Quebec, deeming the issue to be unsettled law for other jurisdictions in Canada. It is expected that Cambie Surgeries will be appealed to the SCC on this issue, to ultimately decide on the fate of Canadian healthcare system. The plaintiffs in Cambie Surgeries argue that the Chaoulli majority decision is persuasive, whereas the defendants argue the decision is specific to Chaoulli’s set of facts and the majority’s reasoning based on comparative healthcare systems has been widely discredited by legal scholars. In the meantime, the BCSC in Cambie Surgeries ruled that while a s. 7 right is violated—similarly to Chaoulli—the impugned provisions are still in accordance with the principles of fundamental justice and therefore constitutional.

Right to Security of Person and the Principles of Fundamental Justice

The main issue is whether the impugned provisions violate the s. 7 right to life, liberty and security of person in a way that is not in accordance with the principles of fundamental justice. Justice Steeves ruled that the right’s life interest is not engaged, since the wait times don’t result in deaths, and liberty interest is not engaged, since patients can freely choose to accept or reject treatment. However, he ruled that the right to security of person of those with degenerative or deteriorating conditions experiencing harm through the public system’s delay is indeed violated by the impugned provisions. He found that—absent expert evidence that wait times are causally related to harm—two patient plaintiffs and general evidence about patient experiences demonstrates that a patient could be at risk of physical harm from waiting for surgery. However, the plaintiff’s s. 7 claim failed when Justice Steeves ruled that the violation is still in accordance with the principles of fundamental justice of not being arbitrary, overbroad, nor grossly disproportionate.

Arbitrariness: Using Cross-Jurisdictional Analysis and Expert Evidence  

S.7 jurisprudence determined that legislation is arbitrary when there is no rational connection between its purpose and effects (Canada (AG) v Bedford, 2013 SCC 72 [Bedford]; Carter v Canada (AG), 2015 SCC 5 [Carter])—this is updated from the stricter approach used in Chaoulli requiring a necessary connection. Justice Steeves asserted the defendant’s purpose of the impugned provisions was to maintain “sustainability of the universal public healthcare system” and, “access to necessary medical services is based on need and not the ability to pay” (Cambie Surgeries, para 2939), ultimately promoting the purposes of universality and accessibility enshrined in the CHA.

Justice Steeves critically compares the BC system with other public healthcare systems in the world to aid in the determination of if there is a rational connection between the purpose of the impugned provisions and effects of the BC’s system. If not, then the plaintiff’s argument about unreasonable wait times and need for introducing private funding succeeds. Notably, in the United Kingdom (“UK”), the actual reduction of wait times they achieved was not attributed to introduction of a dual public-private system. Unlike BC, the UK system is publicly delivered, meaning, the physicians are government employees whose time is regulated, and covers more healthcare services like dental and pharmaceuticals. This results in the UK’s private and public healthcare systems having minimal competition against each other. However, in BC there is both a history of physician resistance to government regulation and, as a staple of Canadian healthcare, physicians are able to choose how to spend their own time. The health policy experts testifying in Cambie Surgeries agree that introducing a dual system allowing physicians to render public and private medically necessary services would not decrease wait times as the plaintiff claims. Rather, the duplicative system could inevitably create competition of physicians’ time, redirect resources away from the public system, and consequently increase wait times, demand, and cost of the public system.

Experts in the case also agreed that private healthcare is predominantly purchased by wealthier, healthier, and better educated people, and—contrary to the plaintiff’s claim—the option of private healthcare would not protect the needs of young, elderly, and disabled people. Private insurance is in the business of risk, not health, and so a dual system would systemically exclude people with pre-existing conditions from access to private care, and increase the cost of the public system, thus making it harder for many people with disabilities to access healthcare equitably.

Therefore, Justice Steeves ruled that the introduction of a duplicative practice would detrimentally affect BC’s public healthcare by reducing its capacity. Additionally, BCSC found that the impugned provisions have multiple rational connections which link to the effects of providing sustainable, affordable, and equitable access.

Overbreadth

In addition to establishing a rational connection, the impugned provisions must not overreach by capturing unintended activities in its effects. The plaintiff’s claim that once MSP physicians have met their allotted time in the public system as per the MPA’s purpose, they should be able to deliver the same services in the private system. In this way, the plaintiffs are contending that the impugned provisions are sustainable since the physicians’ time would not be diverted away from the public system and extra time would be used to service the system’s capacity. Justice Steeves disagreed because physicians are not contractually obligated to work for the public system under MSP and can already do privately funded work legally that isn’t MSP regulated. He also found that the plaintiffs’ witnesses exaggerate the unused time physicians have. He underscores that even if the claim stood, it would only address one of the multiple rational connections established including maintenance of a needs-based, affordable system.   

Proportionality 

While the plaintiffs maintained that harm to even “one person” due to wait times is grossly disproportionate and hence a violation of their s. 7 right, Justice Steeves ruled that the harm experienced due to waiting times by the relevant patient plaintiffs were not unique; they did not go beyond the usual stress accorded to all patients who wait for care (Cambie Surgeries, para 2717). Further, all the evidence in fact demonstrates that those with urgent care needs receive timely and good quality care. Justice Steeves remarks: “Consequences of pain and disability from the underlying condition and not from waiting are not evidence of gross disproportionality.” While disability requires critical analysis of ableist societal structures, it is clear that public system wait times are not the root nor abettor of harm; and if they were, the access to a dual system would not alleviate it.

Ultimately, Justice Steeves ruled that while the s. 7 right is engaged, none of the existing principles of fundamental justice are violated, and so the s. 7 claim is dismissed. Cautioning against a two-tiered preferential healthcare system, he asserted that the impugned provisions ensure all necessary medical care is based on need and not the ability to pay.

Equality Rights on the Basis of Age or Disability 

The constitutional second issue is whether the impugned provisions violate the s. 15 Charter right to equality. Injured workers are exempt from the provisions restricting private healthcare and hence able to access private healthcare legally. The plaintiffs argued that since young, elderly, and disabled people are disproportionately unable to work—and consequentially unable to participate in legal worker benefits to access private healthcare—they are discriminated against on the grounds of age and disability contrary to the Charter s. 15 equality rights. 

Justice Steeves dismissed the s. 15 claim due to lack of evidence of a distinction that perpetuated disadvantage, and that the provisions did not impose a burden nor confer a benefit that discriminated against patients based on age or disability. Further, he commented that if the plaintiffs had successfully demonstrated there was discrimination as per s. 15(1), the impugned provisions would be justified under s. 15(2) since a single-payer healthcare program would be considered ameliorative in function. The recent ground-breaking s.15 SCC case of Fraser v Canada (AG), 2020 SCC 28 [Fraser], released a month after Cambie Surgeries, has relaxed the traditional requirement of demonstrating causation between the impugned law and alleged discrimination. However, it seems that the plaintiffs’ s. 15 claim in Cambie Surgeries still would not advance post-Fraser, given clear inability for the plaintiff’s argument and evidence to meet the thresholds of a s. 15 analysis as described by the BCSC.

Additionally, the plaintiffs propose a novel s. 15 framework based on “interests” for timely medical care alongside “grounds” (Cambie Surgeries, para 2807), which the BCSC categorically rejects. The objective of s. 15 is to prevent laws from perpetuating systemically disadvantaged groups in the pursuit of substantive equality, which this novel approach would not comply with.

Constitutional Violations in a Free and Democratic Society

Justice Steeves further argues that even if either of the Charter rights—to s. 7 and s. 15— were violated by the impugned provisions, they would be justified in a free and democratic society as per s. 1 of the Charter. Ultimately, he provides great deference to the BC legislature while conducting the s. 1 analysis because administration of healthcare through the MPA is a “complex regulatory response” to the “social problem” of access to healthcare, an approach taken by the SCC in Alberta v Hutterian Brethren of Wilson Colony, 2009 SCC 37 (Cambie Surgeries, para 2898). He contends that the impugned provisions are not an absolute prohibition on private healthcare, since private delivery is a staple of the publicly funded Canadian system, and physicians who don’t enroll in the MSP can pursue privately funded practice. He ruled—similarly to the Chaoulli majority—the objectives of sustainability and ensuring access to necessary medical services were on a needs-basis is pressing and substantial in line with Canada’s foundational principles of universal healthcare. These reasons aid Justice Steeves’ establishment of a rational connection between the legislative purpose and impugned provisions effect in a minimally impairing manner. Regarding the final proportionality analysis, Justice Steeves rules that the benefits of the impugned provisions substantially outweigh the deficits of long wait times and capacity issues.

Concluding Thoughts

Ultimately, Cambie Surgeries represents an important victory against Dr. Day’s fight for for-profit healthcare in Canada. As Dr. Danyaal Raza, Chair of Canadian Doctors for Medicare who intervened on the case, said: “This case was never about wait times—it was always about profit.” However, while the BCSC may have momentarily stalled the potential expansion of privately funded healthcare in BC and other provinces, Cambie Surgeries has yet to pass the constitutional scrutiny of the BC Court of Appeal and the SCC. When it arrives there, the decision will determine the future of Canadian healthcare and add to the parameters of s. 7 Charter right jurisprudence post-Bedford and Carter, which can impact future cases about the right to life, liberty, and security of person in public services such as housing and education.

Cambie Surgeries was heard before the pandemic emergency measures and public health crisis came into full force in Canada. The COVID-19 pandemic has taken the abstract and hypothetical arguments about capacity off the page and on full display to our collective lives. In the COVID-19 context, it is even more apparent that having private access to healthcare based on the ability to pay would not resolve the capacity issue of the public healthcare system; rather it would further increase the access to healthcare divides based on socio-economic and intersecting factors of race, gender, and immigration status. It lays bare the need for political resistance against historic and present austerity measures to public services that are the cause of its capacity problems in healthcare. While a win for a universally accessible system, legal resistance in Cambie Surgeries is simply not enough.

Priyanka Sharma

Priyanka Sharma

Priyanka Sharma is a 2L student at Osgoode Hall Law School. First and foremost, Priyanka sees communities as the drivers of social movements and is committed to following the leadership of Black and Indigenous leaders working to decolonize and abolish systems of violence. Priyanka reads court decisions for their normative foundations and to challenge them through an analysis of structural power. Priyanka is constantly involved both within and outside of Osgoode through legal clinics, student governance, and community-based organizations. Priyanka’s legal interests are in workers’ rights, union-side labour, discrimination and human rights, and constitutional litigation.

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