Four things you should know about the pending Charter challenge against medicare
By Colleen Flood
and Kathleen O'Grady
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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