An appeal is scheduled to kick off June 14th in the latest round of a 10-year legal battle to overturn laws limiting a two-tier health system in the case of Cambie Surgeries Corps v. British Columbia. This challenge, led by private clinic owner and orthopaedic surgeon, Dr. Brian Day, was dealt a major blow last September, when the BC Supreme Court handed down an 883-page decision that systematically rejected arguments that BC laws violate the Canadian Charter.
There is a lot of money to be made in expanding for-profit medicine, and it should come as no surprise if ultimately this challenge wends its way to the Supreme Court of Canada.
Cambie’s central argument is that long wait times in our public health care system infringe the right to “life, liberty and security of the person,” guaranteed under s.7 of the Charter. They ask that the court remedy the problem, not by fixing wait times for all, but by allowing doctors who participate in medicare to also sell their services to patients who are willing to pay for faster care, either out-of-pocket, or through private health insurance. The worry — shared by many leading health economist and health services researchers—is that this will leave patients in the public system worse off, as health care providers prioritize more lucrative private patients. It will also, of course, undermine the Canada Health Act’s commitment to equity.
The Supreme Court of Canada addressed a related challenge in a 2005 ruling, Chaoulli v. Quebec. There, a narrow majority found that, given long wait times in its public health care system, Quebec’s prohibition on duplicative private health insurance violated the right to life and security of the person. Chaoulli was decided under the Quebec Charter of Human Rights, not the Canadian Charter, so its application to other provinces was left unsettled. The Cambie litigation seeks to significantly expand the scope of Chaoulli, beyond Quebec, to British Columbia and potentially all other provinces.
Applying the Chaoulli precedent to other provinces is not a simple cut-and-paste exercise. For one thing, each province has its own unique approach to restricting privately financed care. The claimants in Chaoulli only sought to overturn Quebec’s ban on duplicative private insurance, the plaintiffs in Cambie seek to overturn a wider array of BC laws: a prohibition on private billing that exceeds the fees set by the public system; a prohibition on physicians participating simultaneously in the public and private systems; and a prohibition on private health insurance for medically necessary care.
It also needs to be established that BC’s recipe for regulating privately-financed care is the cause of unreasonable wait times in the province, which threaten patients’ security of the person. To answer this question, the courts have looked at evidence from other countries with universal health care systems, trying to discern the impact of allowing two-tier care.
So these are exceptionally complex and sprawling questions for a court to adjudicate. Indeed, many prominent constitutional scholars have said that courts — given their limited expertise and research capacity — should be veryhesitant to tinker with the architecture of public medicare. The Chaoulli decision ranks among the most controversial Supreme Court rulings to date, with many commentators decrying it as a clear case of judicial overreach.
As it happens, the Charter’s s.7 right to ‘life, liberty and security of the person” contains its own internal limitations clause: interferences with these interests are allowed, provided they do not violate “principles of fundamental justice.” This is where the Cambie claim ran into trouble.
In the ruling handed down last fall, the BC Supreme Court heard testimony from over 100 witnesses, including 37 expert witnesses — many expressing serious concerns about the harmful effects that liberalizing privately-financed care might have on the public system. Weighing this evidence, the court was satisfied that the province’s restrictions on two-tier care have some rational basis and do not violate principles of fundamental justice.
Canadians should watch the Cambie appeal closely. Directly at issue is an important and honoured principle: that medically necessary care should be allocated on the basis of medical need, not ability to pay. Yet the case also engages the broader question of how we reconcile individual rights with (often imperfect) public policies that aim to protect and promote the health of all.
Throughout the COVID-19 pandemic, some have invoked personal rights and freedoms to reject mask mandates, lockdown rules, and vaccination requirements. In the big picture, Cambie is about this vital and profound question of how individual rights interact with evidence-based collective action on complex issues in public policy. The real question whether or not this is something the courts – or Parliament – should decide.
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