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.
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 UK 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 BC 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
and Managing Editor of EvidenceNetwork.ca.
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