By Colleen Flood and Kathleen O’Grady, EvidenceNetwork.ca
A version of this commentary appeared in the Globe and Mail, the Medical Post and the Windsor Star
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 BC Supreme Court next 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 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 so that the parties could resolve their dispute out of court and reach a settlement. It now appears such a resolution has not been reached and the court proceedings resume in June 2016.
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 likely 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.
3. Conflict-of-interest incentives:
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 and Managing Editor of EvidenceNetwork.ca.
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