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Supreme Court declines to hear BC doctors’ fight to let patients pick private health care

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Dr. Brian Day, Medical Director of the Cambie Surgery Centre, in his Vancouver office. Dr. Day launched legal action in 2009, challenging medicare laws that prohibit patients from paying for faster access to medically necessary care.DARRYL DYCK/The Canadian Press

A British Columbia-based physician who has spent more than a decade challenging medicare laws that prohibit patients from paying for faster access to medically necessary care has lost his fight, after the Supreme Court of Canada declined his last chance at appeal.

Thursday’s decision upholds those laws and closes the door on a 14-year legal battle that pitted patient autonomy against the principle that critical health care should be taxpayer-funded and provided on an equal basis to Canadians. Some feared a ruling in favor of private providers could upend the very foundation of the public health care system.

Brian Day, an orthopedic surgeon at a private clinic who led a handful of patient-plaintiffs in the challenge, called Thursday a “sad day,” and criticized the Supreme Court for what he called a failure to indict a broken health care system.

“It’s now clear to all that medically unacceptable wait times have become forcibly embedded and represent government policy in the publicly funded Medicare system,” said Dr. Day, who is the chief executive officer of Cambie Surgeries Corp.

Dr. Day cited a report from the think tank Second Street that said more than 11,500 patients across Canada died in 2020-21 while waiting for surgeries, diagnostic scans and appointments with specialists.

BC Health Minister Adrian Dix called the decision “a great victory for public health care” and said his government would continue working to increase operating-room time and capacity, expand training opportunities and bring more private clinics under public control.

The Supreme Court of Canada does not release its reasons for choosing not to hear cases. In 2022, only 7 per cent of cases that were applied for appeals at the court were granted hearings.

Lawyers for the plaintiffs had invoked Section 7 of the Charter of Rights and Freedoms – the right to life, liberty and security of the person – to argue that people have a right to pay for faster access to medically necessary care when waiting times in the public system is too long.

The defendants – the attorneys-general of BC and Canada – and intervenor groups argued the case was not about health care, but rather corporate greed. If the plaintiffs won, a public health care system already strained by staff shortages would worsen as doctors and nurses were pulled to the profit-focused private system, they argued. The very people for whom medicare was designed – the elderly, the disadvantaged, and those living with mental or complex chronic illnesses – would suffer most, Dr. Day’s opponents said.

Dr. Day launched the legal action in 2009, and it landed in BC Supreme Court in 2016, with support from four of his patients. The court heard from more than 100 witnesses. In September, 2020, BC Supreme Court Justice John Steeves dismissed the challenge in an 880-page judgment, which the BC Court of Appeal upheld in July.

While the appeal court judges found Justice Steeves had “erred in finding the impugned provisions did not deprive some patients of the right to life, and by underestimating the extent of the deprivation of the right to security of the person,” they did not think he erred in concluding that any deprivations were in accordance with the principles of fundamental justice.

“Accordingly, we conclude that the judge did not err in finding that s. 7 of the Charter had not been breached,” the justices wrote.

On Thursday, Dr. Day said it made no sense that the Supreme Court would decline to hear his case, since it had heard a similar case out of Quebec. In the 2005 Chaoulli case, the court struck down a ban on private insurance for medically necessary care under Quebec’s own rights charter.

“They don’t want to even listen to an argument when [there is] a similar case they heard and ruled on,” he said. “To me, that is illogical.”

Katie Arnup, executive director of Canadian Doctors for Medicare, one of the intervenors that argued against private health care, said the group was fully prepared to be involved if the appeal had proceeded.

In denying Dr. Day’s application to appeal, she said, “the Supreme Court of Canada upholds those two decisions, which we feel are really strong. In particular, the original decision from the BC Supreme Court was one of the most comprehensive and longest verdicts in the court’s history.”

Dr. Day said his private Vancouver clinic continues to operate, catering to patients who are able to access private insurance for basic health services, including non-residents, injured workers, prisoners and federal employees.