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Charter Health Crowd

Day in Court


By Dennis Jeanes
Manager, Communications & Advocacy

Sometime in early Spring 2014, likely in April, an irresistible force will collide with a heretofore immovable object.

That's when orthopaedic surgeon and former CMA president Dr. Brian Day and five other patient plaintiffs will argue through their lawyers in the Supreme Court of British Columbia that legislation restricting patient access and choice violates their charter rights. The plaintiffs will contend that, when core treatment services cannot be delivered in a timely manner in the public  health-care system, the state's imposition of legal barriers to stop them from gaining alternative access to needed medical care constitutes an infringement on their charter rights to life, liberty and security of person.

If this sounds more than a bit familiar, it's because much the same argument was made by the CMA and the COA in 2004 to the Supreme Court of Canada during its review of the now landmark case, Chaoulli v. Quebec. The Supreme Court ruled the following year that the Quebec government's failure to provide timely care voided its monopoly on health-care insurance because it violated a citizen's right to security of person under the Quebec Charter of Rights.

"The difference between this suit and the Chaoulli decision," says Day, "is that there won't be any confusion about the Quebec and federal charters. We are arguing under the Canadian Charter of Rights and Freedoms, which applies to all Canada. It's going to be an interesting case and, if we win, the decision will probably be appealed all the way to the Supreme Court of Canada. We feel our case is strong." And, of course, it doesn't hurt to have a provincial precedent.

While the suit's central argument about timely access to care remains virtually unchanged, this time the plaintiffs' tactics are different and, most importantly, the times have changed. According to Day, the BC government is "very uncomfortable" about having to face not just a private clinic – Day's Cambie Clinic in Vancouver – but also a variety of patients with serious health conditions. It's one thing for the government defence to claim that the suit is merely motivated by a private clinic attempting to undermine Canada's public health-care system, and quite another "to go to court and argue that cancer patients should be waiting for care or that young children with orthopaedic conditions should be waiting," Day notes. "And, of course, there is our young plaintiff, who has no connection at all to the Cambie Clinic. He's now a 16-year-old who was obliged to wait for 27 months for spine surgery and has ended up paralyzed." In the 2004 Supreme Court hearings, one government lawyer actually argued that there was no evidence that wait times caused harm and suffering. No more.

Also the specious scenario that adding a private element to the public health-care system would lure away GPs and specialists, leaving the public system bereft of talent and skills, can no longer have much sway. "All of the recent data from the COA on unemployed grads, and the recent Royal College report on specialist unemployment, throw cold water on that argument," says Day. "Even though we've increased medical school intake and there are more doctors, according to the report the logjam of unemployed grads is due to lack of OR time, lack of facilities and hospital privileges. When the specialty with the longest wait times is orthopaedics, and patients have to wait two to three years for some types of orthopaedic surgery, and there are a lot of young unemployed orthopaedic surgeons, there has to be another reason other than 65-year-old surgeons keeping their OR time. Any incentive to open up OR time is clearly constrained by hospital budgets."

By coincidence April 2014 will also see significant changes to the federal Canada Health Transfer, as equal per capita funding replaces the existing formula – an esoteric calculus of equalization payments and tax points. Under the new system, say  observers, no weight is given to the demographics of a provincial population or the difficulties of delivering care to remote communities. Thus, jurisdictions with a relatively young population will likely experience a bit of a windfall, since much of a person's healthcare costs occur in the last decade or so of life. The reverse may very well prove true for provinces with sizeable elderly populations and will likely lead to even tighter health-care budgets. Indeed, provincial governments are all looking for "efficiencies" to reign in health-care inflation to under 3% in anticipation of further reductions to health transfers in April 2017. The long and short of it is, rationing health care will continue, and new public funding will be in very short supply.

What won't be in short supply is demand for core services. Many Canadians – be they Boomers or their offspring – will rightly perceive that treatment delayed is treatment denied. But they need to be careful, says Day, since in several jurisdictions paying privately for core services can be equated with queue-jumping and the patient forced to pay punitive fines: "Seventy-six per cent of  Canadians, according to an Ipsos Reid poll in June 2012, think they should be able to buy private insurance for treatment outside the public system. And yet, most Ontarians, for example, don't realize they could be fined $10,000 or more under Ontario's Commitment to the Future of Medicare Act, if the government deems them guilty of expediting their own care. There is no other country in the world with laws that say you cannot buy private health insurance for yourself. The plaintiffs in this case firmly believe that in a free and  democratic society, citizens should not be denied the right to protect their body from harm."


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