Landmark health care case spotlights problems of a profit-centred system
In April, the Supreme Court of Canada declined to hear a case involving the constitutionality of legal limits on private finance in health care.
A 14-year legal saga has ended, but many provinces seem to be ignoring evidence in this case indicating that a profit-centred system does not serve the public interest. Proponents of for-profit health care have mischaracterized the Charter challenge as the “right to private health care”. This framing ignores the history and facts of this case.
In 2007, BC’s Medical Services Commission (MSC) informed Dr. Brian Day it would audit his for-profit medical clinics (Cambie Surgery Centre and the Specialist Referral Clinic) in response to patient complaints about improper billing.
Before it could conduct the audit, plaintiffs led by Day launched a Charter challenge to try to strike down key sections of the BC Medicare Protection Act. This law protects BC’s public health care system by banning extra-billing and private duplicative insurance for services covered by the public plan.
Despite the plaintiffs efforts to block the audit, the MSC audited Day’s clinics in 2011. Even with limited cooperation, the audit report found extensive unlawful billing by Day’s clinics.
During the Supreme Court of BC trial, BC government and intervenor witnesses—physicians, health administrators and academics—provided expert testimony about the problems of private financing.
Many provinces seem to be ignoring evidence indicating that a profit-centered system does not serve the public interest.
Contrary to what proponents of private health care say, privately paying for health care in Canada is not banned and no federal or provincial legislation prevents doctors from working in private-pay facilities or bans patients from paying for services.
However, most provinces restrict or disincentivize doctors from working in the public and private systems at the same time in order to prevent taxpayers from subsidizing a private system that does not provide equitable patient access. If doctors choose to work entirely on a private-pay basis, they must generally un-enroll from their provincial health insurance plan and forgo the ability to bill the public plan.
Had Cambie Surgeries Corporation prevailed, the Canada Health Act and its focus on equitable access would have been undermined. Doctors and for-profit facilities would have had virtually unrestricted ability to charge patients and the public purse while creating a private insurance market for all health care.
So, the Cambie case was about the rights of doctors, investors and insurance companies to profit from patients in their time of medical need while also benefiting from significant taxpayer subsidy.
In his decision, BC Supreme Court Justice John Steeves considered the body of evidence regarding private health care financing and found it would increase public wait times. He concluded that if Cambie’s claims were successful, “it would create a second tier of preferential healthcare where access is contingent on a person’s ability to pay.”
In 2022, the BC Court of Appeal accepted the evidence established at trial and unanimously dismissed the appeal.
Provincial health systems are definitely struggling for a variety of reasons. Wait times remain too long, but the remedy that private health care proponents seek would make matters worse. And, timely access to care for the most vulnerable would be denied. This would return us to pre-Medicare days in Canada when people routinely suffered and died from diseases that are now easily and routinely treated.
The principles of the Canada Health Act remain intact. However, many provinces and corporate interests have recalibrated their strategy to undermine public health care. Alberta, Ontario and Quebec are entrenching for-profit interests by outsourcing surgeries to investor-owned facilities.
Canadian and international evidence shows private, for-profit delivery of surgical and diagnostic services is more expensive than non-profit delivery.
Canadian and international evidence demonstrates that private, for-profit delivery of surgical and diagnostic services is more expensive than non-profit delivery, risks lower quality care and patient safety and destabilizes the public system by drawing on the same pool of limited health professionals. A new Parkland Institute study, authored by Andrew Longhurst, found that contrary to Alberta government claims that for-profit surgical delivery increases provincial surgical capacity, data show the expansion of for-profit facilities diverted resources away from public hospitals and, in turn, reduced provincial surgical volumes and increased wait times.
Evidence also shows that for-profit clinics are a gateway to two-tier health care. Some for-profit clinics have engaged in unlawful extra-billing, entrenching two-tier health care. On May 19, the Manitoba Health Coalition revealed that Manitoba had struck a deal with Brian Day’s Cambie Surgery Centre to send surgical patients to BC. Considering Cambie’s record of unlawful extra-billing and disregard for provincial law and the Canada Health Act, we are extremely concerned about provincial governments using public dollars to support investor-owned clinics—in this case, the very clinic that seeks to end Canadian Medicare as we know it.
Although the Supreme Court of Canada upheld legal limits on private finance, it acknowledged that long wait times can engage constitutional rights, which should catalyze policymakers into making necessary—and stalled—improvements to the public system. The time for action is now.
