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Four points about the pending challenge against medicare

Four points about the pending challenge against medicare

A version of this commentary was published in the Globe and Mail

A long-running dispute between Dr. Brian Day, the co-owner of Cambie Surgeries Corporation, and the British Columbia government may finally be resolved in the B.C. Supreme Court this year – and the ruling could transform the Canadian health system from coast to coast.

The case emerged in response to an audit of Cambie Surgeries, a private for-profit corporation, by the BC Medical Services Commission. The audit found from a sample of Cambie's billing that it (and another private clinic) had illegally charged patients hundreds of thousands of dollars more for health services covered by medicare than is permitted by law. Dr. Day and Cambie Surgeries claim that the law preventing a doctor charging patients more is unconstitutional.

Dr. Day's challenge builds on the legacy of a 2005 decision by the Supreme Court of Canada overturning a Quebec ban on private health insurance for medically necessary care. But this case goes much further, not only challenging the ban on private health insurance to cover medically necessary care, but also the limits on extra-billing and the prohibition against doctors working for both the public and private health systems at the same time.

A trial date was set to begin in 2012, but was adjourned until March, 2015. It now appears the trial is unlikely to begin before November.

Here's why this case matters.

1. Legal precedent: Whatever way the case is decided at trial, it is likely to be appealed and eventually reviewed by the Supreme Court. A decision from this level will mean all provincial and territorial governments will have to revisit equivalent laws. The foundational pillars of Canadian medicare – equitable access and preventing two-tier care – could well be vanquished in the process.

2. Wait times: Dr. Day will argue that Canada performs poorly on wait times compared to other countries, and that other countries allow two-tier care; thus, if Canada is allowed two-tier care, our wait times would improve. But this approach is too simplistic.

Common comparisons to the English health system, for example, fail to recall that despite having two-tiers, they have in the past suffered horrendously long-wait times. Recent efforts to tackle wait times have come from within the public system, with initiatives like wait time guarantees and tying payment for public officials to wait-times targets.

By looking to England we are not measuring like to like but apples to oranges. English doctors are generally full-time salaried employees while most Canadian physicians bill medicare on a fee-for-service basis. Consequently, the repercussions for permitting extra billing in Canada could eviscerate our publicly funded system, whereas this is not the case in England. Imagine if most doctors in Canada could bill, as those at the Cambie clinic have done, whatever they want in addition to what they are paid by governments?

3. Conflict-of-interest incentives: Evidence suggests there is a danger in providing a perverse incentive for physicians who are permitted to work in both public and private health systems at the same time. Wait times may grow for patients left in the public system as specialists drive traffic to their more lucrative private practice. Sound improbable? Academic studies have noted this trend in specific clinics that permit simultaneous private-public practice. And recent U.K. news reports have profiled a case where a surgeon bumped a public patient in need of a transplant for his private-pay patient.

4. Competition: Proponents of privatized health services often claim that it would add a healthy dose of competition, jolting the "monopoly" of public healthcare from its apathy. But free markets don't work well in healthcare. Why? Because public providers and private providers won't truly compete if the laws Dr. Day challenges are struck down. Instead, those with means and/or private insurance will buy their way to the front of queues. Public coverage for the poor will likely suffer, as is clearly evident in the U.S., with many doctors refusing to provide care to medicaid (low-income) patients in preference for those covered by higher-paying private insurance.

Of course, this is all based on an outcome that is not yet known. It may be that the Charter challenge in B.C. is unsuccessful but clearly the stakes for ordinary Canadians are very high. Sadly Dr. Day is not bringing a challenge for all Canadians. Isn't it long past time our governments and our doctors work to ensure all Canadians – and not just those who can afford to pay – receive timely care?

Colleen M. Flood is Professor and University Research Chair in Health Law & Policy at the University of Ottawa and an expert advisor with EvidenceNetwork.ca. Kathleen O'Grady is a Research Associate at the Simone de Beauvoir Institute, Concordia University.

April 2015

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