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Four
things you should know about the pending Charter challenge against
medicare
By
Colleen Flood
Expert Advisor and Kathleen O'Grady Managing Editor EvidenceNetwork.ca |
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OTTAWA, ON/ Troy
Media/ - A long-running dispute between Dr. Brian Day, the co-owner of Cambie
Surgeries Corporation, and the British Columbia government may finally be
resolved in the BC Supreme Court this year - and the ruling could transform the
Canadian health system from coast to coast.
The case emerged in
response to an audit of Cambie Surgeries, a private for-profit corporation by
the BC Medical Services Commission. The audit found from a sample of Cambie's
billing that it (and another private clinic) had charged patients hundreds of
thousands of dollars more for health services covered by medicare than is
permitted by law. Day and Cambie Surgeries claim that the law preventing a
doctor charging patients more is unconstitutional.
Day's challenge
builds on the legacy of a 2005 decision by the Supreme Court of Canada
overturning a Quebec ban on private health insurance for medically necessary
care. But this case goes much further, not only challenging the ban on private
health insurance to cover medically necessary care, but also the limits on
extra-billing and the prohibition against doctors working for both the public
and private health systems at the same time.
A trial date was set
to begin in 2012, but was adjourned until March 2015 so that the parties could
resolve their dispute out of court and reach a settlement. It now appears such a
resolution has not been reached and the court proceedings may resume in
November.
Here's why this case
matters.
Common comparisons to
the English health system, for example, fail to recall that, despite having
two-tiers, it has in the past suffered horrendously long-wait times. Recent
efforts to tackle wait times have come from within the public system,
with initiatives like wait time guarantees and tying payment for public
officials to wait times targets.
By looking to
England, we are comparing apples to oranges. English doctors are generally
full-time salaried employees while most Canadian physicians bill medicare on a
fee-for-service basis. Consequently, the repercussions of permitting extra
billing in Canada could eviscerate our publicly-funded system, whereas this is
not the case in England. Imagine if most doctors in Canada could bill, as those
at the Cambie clinic have done, whatever they want in addition to what they are
paid by governments?
Sound improbable?
Academic studies have noted this trend in specific clinics that permit
simultaneous private-public practice. And recent UK news reports have profiled a
case where a surgeon bumped a public patient in need of a transplant for his
private-pay patient.
Of course, this is
all based on an outcome that is not yet known. It may be that the Charter
challenge in B.C. will be unsuccessful, but clearly the stakes for ordinary
Canadians are very high. Sadly Dr. Day is not bringing a challenge for
all Canadians. Isn't it long past time our governments and our doctors
work to ensure all Canadians - and not just those who can afford to pay -
receive timely care?
Colleen Flood is
Professor and University Research Chair in Health Law & Policy at the
University of Ottawa and an expert advisor with EvidenceNetwork.ca. Kathleen
O'Grady is a Research Associate at the Simone de Beauvoir Institute, Concordia
University and Managing Editor of EvidenceNetwork.ca.
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