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Doctor says wait times permanent after high court rejects private health challenge

Supreme Court of Canada does not release reasons for why it chooses not to hear cases
Dr. Brian Day, Medical Director of the Cambie Surgery Centre, sits for a photograph at his office in Vancouver, B.C., Wednesday, Aug. 31, 2016. The Supreme Court of Canada decided it will not hear a challenge of a British Columbia law intended to preserve public health care through measures against extra-billing and certain private insurance. THE CANADIAN PRESS/Darryl Dyck

The doctor who led a legal challenge over a patient’s right to pay for private medical care says a decision by Canada’s top court not to hear an appeal means long wait times have been “forcibly embedded” into the medicare system.

Dr. Brian Day is CEO of the Cambie Surgery Centre, which, along with a handful of patients, has spent more than a decade in court challenging the British Columbia Medicare Protection Act, which bans extra-billing and private insurance for medically necessary procedures.

They argued long wait times in B.C.’s publicly funded system amounted to a breach of the patients’ rights to life, liberty and security of the person under the Charter of Rights and Freedoms.

The Supreme Court of B.C. dismissed the constitutional challenge three years ago and the provincial Court of Appeal upheld the ruling last year. On Thursday, the Supreme Court of Canada said it would not hear an appeal.

Day said in a statement that Canada needs to bring its system in line with other better-performing publicly funded systems in the world with complementary health care available through legal private insurance.

“As a result of the Supreme Court’s failure to even consider the rights of Canadians suffering on wait-lists, Canadians, such as the patient plaintiffs in our case who suffered such outcomes as permanent paralysis and death as they waited for care and justice, are being denied access to both,” he said.

“It’s now clear to all that medically unacceptable wait times have become forcibly embedded and represent government policy in the publicly funded medicare system. The courts have endorsed this approach.”

The Supreme Court of Canada does not release reasons for why it chooses not to hear cases. In 2022, only seven per cent of the cases that applied for an appeal were granted one.

Justice John Steeves said in the original B.C. Supreme Court ruling that while long waits for care might increase the risk to some patients, the provisions were justified by the overall objective of supporting a system where access to health care is based on need, not the ability to pay.

B.C. Health Minister Adrian Dix said in a statement that the high court ruling shows strong support for universal health care and the Medical Protection Act, which the provincial government is committed to upholding.

“In 2018, we strengthened the act to include new protections for patients to prevent extra-billing, clarified the rules for medical practitioners and established consequences for those who break the rules,” the statement said.

Strengthening the act allows the government to “act decisively” against violators, Dix said, and ensures “the best interests of patients are prioritized and safeguarded.”

The province is also moving to cut wait times, despite the upheavals caused by the COVID-19 pandemic, said Dix.

Ninety-nine per cent of patients whose services were postponed during the pandemic have now had their procedures, the statement said.

The statement says B.C. now ranks “first nationally for the percentage of patients meeting clinical benchmarks for cataract surgeries and second for both hip and knee replacements.”

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