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Supreme Court ruling ends hope for many patients waiting for care in Canada

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Supreme Court ruling ends hope for many patients waiting for care in Canada

Three years ago, the British Columbia Supreme Court effectively locked patients within B.C.’s government-run health-care system. On Thursday, the Supreme Court of Canada sealed their and other Canadians’ fate.

By refusing to allow Dr. Brian Day, former head of the Canadian Medical Association, and his patients to appeal the B.C. court’s decision, the Supreme Court of Canada (SCOC) effectively ensured that patients in B.C. have no private recourse outside the government system to harmful medical delays within the province’s borders. Canada’s top court’s refusal to hear their appeal also puts a chill on those wishing to challenge the government medical monopoly in other provinces—except of course in Quebec where private alternatives have been allowed since a SCOC ruling in 2005.

The result? For those Canadians who can afford it, they can seek treatment in a different country—away from their homes and their caregivers. Those who cannot afford to do so, will remain stuck on wait lists that now run into the hundreds of thousands across Canada.

Let’s be clear. Despite how B.C. Health Minister Adrian Dix and others have portrayed it, the case did not challenge the fundamental nature of universal access to health care in Canada. It sought to provide patients with an alternative when the government system was unwilling or unable to meet their needs. The argument was for a safety valve that would also relieve pressure on the government system.

Why? Because for years, B.C.’s government has failed to deliver timely care to patients. Just last year, the typical wait for orthopedic treatment after referral from a GP was 42.9 weeks, while those in need of neurosurgery faced a typical wait of more than a year (71.4 weeks). On average, across 12 major medical specialties, British Columbians faced a nearly 6 month (25.8 week) typical wait time.

These wait times are not simply due to surgical cancellations in response to COVID-19—the longest wait times in the province were recorded in 2017 (26.6 weeks). By contrast, the wait time in 1993 was just 10.4 weeks.

In an attempt to help those in need, Dr. Brian Day and others in B.C. provided privately funded medical services to patients failed by the government system, alongside Canadians who have a protected right to privately-provided care including those injured at work, RCMP officers and prisoners, among others. Doing so put them at odds with B.C.’s Medicare Protection Act, which effectively forbids such private alternatives due to bans on extra-billing and certain private health insurance. Put simply, the Medicare Protection Act ensured the only option for patients facing long delays in accessing medically necessary care was to leave the province, or wait and suffer.

In a bid to right this wrong, and to give British Columbians the same rights as Quebecers and select other Canadians who are able to access parallel private care, Dr. Day and his patients launched a legal challenge to the province’s prohibition of private alternatives—arguing that it violated the Charter of Rights and Freedoms.

After 11 years and significant cost, they received a perplexing judgement in 2020. In its ruling, the B.C. Supreme Court acknowledged the plight of thousands of patients on waiting lists but denied them the right to do anything about it. This ruling was upheld by a B.C. Court of Appeal in 2022, in which the justices agreed the provincial government’s Medicare Protection Act deprives some patients of their right to security and life but that these deprivations fall within the principles of “fundamental justice.”

In other words, courts in B.C. accept patients are being harmed by this law but find it justified under the court’s definitions of “fundamental justice” in service of the preservation of our universal health-care system.

The courts have it backwards. The absence of the private sector is actually counter to the maintenance of a high-quality universal access public system. Canada is the only developed country that has determined a private sector must be disallowed to protect public universal health care. Canada also has the developed world’s longest wait times and some of the highest levels of health spending.

Arguments that Canada is unique and that international lessons don’t apply are simply incorrect. In other developed countries, the private sector has proven to be a valuable partner in the financing and provision of universal health care. Patients in every other developed nation with universal access health care—including the United Kingdom, Sweden and Germany—get to choose between the universal system or a private alternative for their medical care.

In Australia, the federal government goes further and actually encourages citizens to obtain private health insurance, recognizing that this reduces the burden on taxpayers and encourages better performance from the government system.

And all of these countries have remarkably shorter wait times for specialists and non-emergency (i.e. elective) surgeries. Further, those private sectors have proven invaluable in reducing lengthy delays for medical care both historically and more recently in response to COVID-related surgical backlogs.

This end to Dr. Day’s 14-year struggle is a sad day for Canadian patients and taxpayers. Governments have for years allowed patients to languish in our health-care system that has proven unable to delivery timely access to care despite comparatively high levels of spending, putting their right to security and life at risk. And they’ve fought vociferously against those who sought to challenge the governmental monopoly over necessary medical treatment. The Supreme Court of Canada’s decision to not hear Dr. Day’s appeal leaves Canadians back in the hands of the provincial and federal governments that claim to care about solving the wait times problem but who also fight a reasonable policy approach that could help.

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