Doctor’s right to pay for private health care appeal dismissed by BC court

British Columbia’s highest court has rejected an appeal of a landmark decision upholding the province’s public health care laws.

A three-judge panel of the British Columbia Court of Appeal on Friday rejected Dr. Brian Day’s argument that a lower court judge made critical errors of fact in dismissing his constitutional challenge to a law that prevents patients from accessing private care when wait times in the public system are too long.

In his majority reasons for judgment, Chief Justice Robert Bauman wrote that while long waits for treatment deprived some patients of their guaranteed rights to life and security of the person, such violations are permitted under the principles of fundamental justice.

Bauman said the laws Day opposes are aimed at ensuring fair delivery of health care and preventing the creation of a two-tier system where access to potentially life-saving treatment is dependent on wealth.

“We accept the self-interest of British Columbians to avoid a long wait when they have the resources to seek private care to avoid an increased risk of death. We are not minimizing the seriousness of this problem”, indicates the judgment.

“But we also recognize that the purpose of the GPA [Medicare Protection Act] involves ensuring that people who are unable to pay are not thereby deprived of medically necessary care. »

The challenge should land in the Supreme Court

The appeals court ruling closes another chapter in a legal saga that began in 2009, but the story is likely far from over. Day has long said he expects to make his case all the way to the Supreme Court of Canada.

Day opened the Cambie Surgery Center in 1996, privately charging for a variety of different procedures, including orthopedic surgeries, screening colonoscopies, and oral and plastic surgery. From around 2004 to 2013, the clinic contracted with the health authorities to provide certain services under the provincial medical services plan.

Dr. Brian Day, a self-proclaimed champion of privatized healthcare, is pictured at his office in Vancouver on August 31, 2016. (Darryl Dyck/The Canadian Press)

His constitutional challenge, filed with four patients as co-plaintiffs, challenged two sections of the MPA that prevent doctors in British Columbia from charging patients more than the rate paid through the Medical Services Plan (MSP) and which prohibit the sale of private insurance that covers treatment provided under the MSP.

British Columbia Supreme Court Justice John J. Steeves dismissed the challenge in September 2020 in a judgment of more than 800 pages and was hailed as a “historic victory” for public health care.

Bauman’s reasons for confirming Steeves’ conclusions were written with the consent of Judge David Harris.

The third appeals court judge, Judge Lauri Ann Fenlon, agreed with the decision to dismiss Day’s appeal, but found that the long wait times in the public system are “grossly disproportionate” to the purposes of the British Columbia law.

However, she said this violation of the principles of fundamental justice is justified under section 1 of the Canadian Charter of Rights and Freedoms, which allows “reasonable limits prescribed by law which can be demonstrably justified in a free and democratic society”.

Fenlon wrote that if the current system prolongs suffering and harms those who would be able to afford private treatment, it must consider the common good.

“The negative consequences of removing the impugned provisions and allowing private care would cause those who could not access private care – the most vulnerable in society – to wait even longer for care, potentially increasing their risk of harm – beyond that, we have to exist under the current regime,” she said in her concurring reasons.

The initial trial in the Supreme Court of British Columbia lasted 194 days and heard testimony from 17 patients, 36 doctors and 17 health and provincial officials. In total, 590 documents were admitted to the file, including 40 expert reports.

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