Closing arguments begin in legal case over private health care in B.C.

A lawyer arguing in favour of a two-tier health-care system in British Columbia says the government can't legally justify preventing patients from paying private doctors to alleviate their suffering sooner than the public system could provide treatment.

Peter Gall began his closing arguments Monday in a decade-long constitutional challenge of the Medicare Protection Act of B.C. as lead plaintiff Dr. Brian Day, CEO of Cambie Surgical Corporation, looked on from the gallery.

The case has drawn a fierce defence from those who warn a parallel public-private system would only benefit the wealthy and expanding private insurance would disproportionately impact patients who aren't considered "profitable."

"If you cannot provide timely service to everyone, you cannot prohibit anyone from going outside the system for private care," Gall told B.C. Supreme Court Justice John Steeves.

It's entirely within the provincial government's constitutional purview to make policy decisions about how the public health-care system is delivered, Gall said, adding that has led to shortcomings where the government's own data shows it is failing to provide diagnostic and surgical services in a timely manner.

That means patients should have the right to make their own choices, he said.

"Waiting for these services causes, at a minimum, ongoing pain, ongoing physical and mental suffering, ongoing disability and as well the possibility of additional and permanent harm, even death."

Gall dismissed fears that allowing private health services would result in a radical transformation of the public system as purely "hypothetical," adding that the government could introduce strict regulations.

Province says challenge motivated by profit

Government lawyers aren't scheduled to begin closing arguments until next week but they say in court documents that Day's claims of four plaintiff patients having been deprived of life, liberty and security of the person under Section 7 of the charter are problematic because those protections apply to issues of justice, not health care.

Rather than a constitutional challenge, the government alleges Day's case amounts to "political theatre" and an attempt to force change on the health-care system for the financial benefit of doctors who earn more money from wealthy patients going to private clinics.

The province also says Day's lawyers have failed to establish that patients suffer harm by waiting for services.

Public health care supporters, including interveners in the case, held a news conference outside the court before the final arguments kicked off Monday.

"We joined this court case because we believe in defending a public health-care system where everyone is covered, everyone is treated equally and no one goes broke paying for their care," Edith MacHattie, a representative for a coalition of interveners, said in a statement.

The BC Health Coalition, Canadian Doctors for Medicare and the B.C. Nurses' Union are interveners in the case. 

"All this case has proven is that a private for-profit system would improve access for the healthiest and wealthiest while creating longer wait times for everybody else," MacHattie said.

Day legally opened the Cambie Surgery Centre in 1996, saying he wanted to create more operating-room time for surgeons who couldn't get it in public hospitals and that profit was never a motive.

However, the facility has been operating since 2003 in violation of provisions of the Medicare Protection Act that haven't been proclaimed into law.

Doctors fined for charging patients

The case landed in B.C. Supreme Court in 2016 with support from four of Day's patients.

In 2018, Health Minister Adrian Dix announced the government would begin to fine doctors $10,000 for a first offence and $20,000 for a second violation of the act if they charged patients for publicly available services. Dix said the "don't ask, don't tell" approach, which allowed private-clinic surgeries and diagnostic tests to continue because provisions of the law had not been enforced, would come to an end.

However, Day successfully sought an injunction that prompted a B.C. Supreme Court judge to order the government not to enforce sections of the act until their validity could be established at trial, which is expected to conclude Dec. 6.

Speaking outside the court Monday, Day said he's glad the case is wrapping up and is now in the hands of the judge rather than politicians.

"The system is broken. Otherwise I wouldn't be here," he said. "Patients were just waiting and suffering and that's just wrong."