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Denying timely health care violates Constitution

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Vancouver Sun Two private health care clinics operated by the Cambie Surgery Centre have been found in an audit to be non-compliant with the monopoly government restrictions on health care in B.C. No surprises here, folks. Dr. Brian Day, president and CEO of Cambie, has always publicly acknowledged this, even before the audit commenced. In putting the well-being of his patients first, Dr. Day believes the legal restrictions on access to his clinic’s service violates the constitutional rights of his patients, and he’s going to the B.C. Supreme Court to fight for those rights.

In 2005, the Supreme Court of Canada handed down its landmark ruling Chaoulli v. Quebec (attorneygeneral). The Court said access to a waiting list is not access to health care – that it is unlawful for the Quebec government to force patients to remain on long, health-destroying waiting lists by pre-venting them from purchasing private health insurance.

While this decision applied only to Quebec, it put the other provinces – all of which run similar monopolistic public systems – on notice that they too had better reduce waiting times or risk courts overturning their monopolies.

Yet in 2012, waiting times in the public system for many medically necessary procedures continue to
grow. Dr. Day is all too familiar with the strain this puts on patients and their families. One patient of his, a mother of two children in her mid-30s, with gastrointestinal symptoms, was referred for a colonoscopy. Facing a four-month wait in the public system and fearing for her health, she chose to have the procedure done quickly at the Cambie clinic. She was found to have colon cancer which had
spread to her liver. After surgery, she is hopeful of making a full recovery, but not because of the public health system. In her case, languishing on a waiting list in all likelihood would have meant death. The axiom that monopolies do not serve consumers well applies equally to health care. Waiting for necessary medical treatment imposes heart-wrenching emotional, financial, and physical health
burdens on ill British Columbians. B.C.’s Medicare Protection Act (MPA) restricts the opportunity for patients to have access to the medical care of their choice in a reasonable and timely fashion. It does this in a number of ways, including prohibiting the charging of “facility fees” (a form of “extra-billing” which the audit found but Dr. Day never hid), and by preventing private insurers from offering coverage for any medical services covered by the government’s monopoly plan.

However, if the B.C. government is going to deny its citizens the right to buy their own insurance or access clinics like Cambie, it has an obligation to provide them with timely health care within the public system. Dr. Day argues that failing to do so violates the section 7 Charter of Rights and Freedoms guarantee of B.C. patients to “life, liberty and security of the person”. This constitutional guarantee includes both a right to access the medical care of one’s choice, and a right to access it in a timely manner.

The B.C. government can’t have its cake and eat it too.

As it stands now, certain categories of B.C. residents – prisoners, RCMP members, and those covered by the B.C. worker compensation scheme – are excluded from the provincial restrictions on access to health care and regularly obtain it from the Cambie clinic.

For these lucky individuals, the restrictions that the B.C. government is invoking to prevent regular British Columbians from accessing timely care at the Cambie clinic do not apply. This distinction is not only arbitrary, but may also be discriminatory under the Charter’s section 15 guarantee of equality. The intention of Dr. Day’s lawsuit against the B.C. government is to provide timely health care to all B.C. residents, and not just the preferred few designated under the province’s health care laws. In light of this audit, the B.C. Medical Services Commission is musing about seeking an injunction against the Cambie clinic.

Dr. Day intends to fight any injunction. How unfortunate it would be to shut down a clinic that provided needed additional operating facilities that are otherwise rationed in public hospitals, attracts specialists to B.C., and provides patients with choice, speedier access, and improved health outcomes.