ian mulgrew: supreme court of canada ducks on providing needed guidance on medicare
4 minute read
canada's supreme court justices on november 28, 2022, left to right: russell brown, mahmud jamal, andromache karakatsanis, sheilah l. martin, richard wagner, nicholas kasirer, suzanne cote, michelle o'bonsawin and malcolm rowe.
sean kilpatrick/the canadian press/file
after more than a decade of legal wrangling, the supreme court of canada turned chicken by refusing to hear the constitutional challenge to b.c.’s ban on private medical services and insurance.
the high bench on thursday followed its traditional practice of not giving reasons for declining to hear the case even though the country confronts a health-care crisis and its guidance would be welcomed.
a founder of cambie surgeries corp. and the face of the litigation, dr. brian day, was bitterly disappointed that the high-profile, much-anticipated debate about medicare ended in such a whimper.
“canadians — such as the patient plaintiffs in our case who suffered paralysis and death — are being denied care and justice,” he told postmedia news. “it’s a loss for the public.”
in 2005, he noted, the high court ruled quebec’s ban on private health services could not be maintained if patients were needlessly suffering or their condition could deteriorate for lack of timely necessary care.
“access to a waiting list is not access to health care,” the bench memorably said in a decision that applied to only quebec because its provincial human rights legislation was at issue.
b.c.’s restrictive legislation — the medicare protection act — is unlike similar statutes because it has no safety valve, explained day, an orthopedic surgeon.
advertisement
in a ruling that supported the trial judge’s validation of the provincial law, the b.c. court of appeal cited section 1 of the charter of rights and freedoms, which allows the suspension of some democratic rights.
federal health minister jean-yves duclos celebrated the end of the case and the court’s award of costs to the government, saying it would continue to prevent change “that benefits few and leaves many worse off.”
day scoffed: “the minister is from quebec where citizens enjoy these rights and a federal employee who also enjoys the right to go to a private clinic. british columbians don’t. our clinic is right now treating residents of other provinces, but b.c. residents are prohibited.
“the judges in question are exempt from the prohibitions and are free to access private care when they wish. i have personally received payment for judges’ private care from the federal government. this decision has been made by judges and politicians who are unaffected by this law. like federal prisoners and others, they freely — and legally — access timely private care.”
b.c. health minister adrian dix was pleased, too, though, he interpreted the ruling as support for the dysfunctional quilt of 13 separate health-care systems in this country.
advertisement
“it sends a strong message that our nation’s highest court supports the principles of universal health care where access to medical care is determined by a patient’s needs, not their ability to pay their way to the front of the line,” dix opined.
in 2018, the b.c. government strengthened the law to include new protections for patients to prevent extra-billing, clarify the rules for medical practitioners and establish consequences for those who break the rules.
“by strengthening the act, the medical services commission is provided additional powers to act decisively against those who disregard the rules and pose a threat to our public health-care system, ensuring the best interests of patients are prioritized and safeguarded,” dix said.
yet it was a previous ndp administration that allowed more than a score of private clinics such as cambie to open in the 1990s.
dix and many others currently in office were part of governments that made it tough for foreign-trained doctors to practice in b.c. and restricted access to medical education. these decisions led to unexpected and negative outcomes.
in day’s opinion, the judges approved the rationing of health care practised by governments who balk at the cost of eliminating waiting lists, many of which exceed the maximum-acceptable-delay standards.
advertisement
prescription drugs, dentistry, and physiotherapy are outside the medical services plan and can be covered by private insurance, he added.
canada spends the most money, but rates the worst of the 10 nations with universal medical care, day said.
after years of boasting in court and to citizens that the province had the best health care in the world, the papered-over flaws were exposed by covid. and the court decision to reject the case is another example of the lack of public sector accountability.
nevertheless, day vowed to not succumb to cynicism or flee the country like dr. jacques chaoulli, who was persecuted and pilloried after winning the 2005 quebec case and watched as the provincial government did as little as possible to follow the decision.
“the scc decision not to even hear this case at all sadly underlines the politicization of our justice system that now is likely even less independent than the u.s. supreme court,” said day.
“the wealthy are unaffected and will continue to access care in the u.s.”
support our journalism: our in-depth journalism is possible thanks to the support of our subscribers. for just $3.50 per week, you can get unlimited, ad-lite access to the vancouver sun, the province, national post and 13 other canadian news sites. support us by subscribing today: the vancouver sun | the province.
share story
