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The Day case

"Freedom of choice," but only for some

After nearly eight years of delays and attempted negotiations, Dr. Brian Day’s Charter challenge against the BC Ministry of Health opened in the BC Supreme Court on September 6, 2016. Day, the force behind and key financial investor in several interrelated private surgical clinics under the Cambie Surgeries group, has spearheaded the movement to remove legislative restrictions (primarily those set out in BC’s Medicare Protection Act) on private payment for services deemed medically necessary. Day and his co-complainants want Canadians to be able to pay – via private insurance or out-of-pocket – for medical procedures that are currently covered under their provincial health plans and under the remit of the Canada Health Act.

Already the narrative surrounding the case seems to be dominated by the myths of the "free market" and "freedom of choice" – articles in the Globe and Mail, CBC news, and Postmedia outlets have painted Day as a one-man crusader for justice, seeking merely to help average Canadians access the medical care they need without lengthy waits, which, Day claims, violate their Charter rights. Somewhat ironically, the sections cited by Day include Section 7 (the right to life, liberty, and security of the person) and Section 15 (every individual is equal before the law). The solution, as proposed by Day’s supporters, is to allow private payment for expedited access to medical care, with the plaintiffs arguing that doctors should be free to directly charge patients for medical services, facility fees for operating rooms and equipment, staffing costs, and many other extras over and above the listed costs outlined in the provincial health plan.

Of course when you dig a little deeper into the circumstances of the case, the implications written between the lines of this narrative are not only more complicated than that – they directly and thoroughly contradict Day's assertions.

The first challenge here is to the motivations behind the suit: altruism on the outside, obscuring illegal billing on the inside. The case was brought in response to attempts by the BC Ministry of Health to conduct an audit of Day’s clinics after a preliminary investigation found significant evidence of extra-billing (charging patients out-of-pocket above and beyond the amount covered by medicare) and double-billing (charging both the public medicare plan and the patient or the patient’s private insurance for the same service). Both practices are proscribed by the Medicare Protection Act, and the Canada Health Act (they are also prohibited in Alberta’s legislation, and all provincial health plans). As part of the lawsuit, the audit was stayed, and Day was able to claim that it was the Ministry of Health’s actions that were unconstitutional, not his own billing practices.

Putting aside the legal and financial vested interests held by Day specifically (and the other clinic owners supporting the suit), there is a mountain of national and international academic evidence undermining the so-called "solution" of parallel public and private pay health systems:

1. The introduction of a parallel (or second-tier) private stream actually increases wait times in the public system: first, by funnelling qualified doctors and nurses into the more lucrative private practices; second, through inefficient utilization of operating rooms and diagnostic equipment (more of which becomes allocated to private facilities); third, as financially wealthy patients pay to "skip the queue" to see specialists, they are then able to re-enter the public system for follow-up care, or for emergency care when complications arise; and fourth, because doctors working in both streams are given a financial incentive to maintain long public waits in order to provoke a further exodus to their own private facilities. Evidence from Quebec, following the 2005 Chaoulli decision (upon which Day’s case is ostensibly based) showed that despite a proliferation of private clinics in the province wait times remain the same or longer, and illegal billing practices have skyrocketed. In the Australian system, a study by former Alberta Health Services CEO Stephen Duckett "suggest[s] that increased private sector activity is associated with increased public sector waiting times, the reverse of the rhetoric supporting policies to increase support for the private sector in order to 'take the burden off the public sector.'"

2. Only those with substantial financial means can avail of the option for "faster" or "better" care, entrenching a rich/poor divide that discourages lower-income patients from seeking necessary care. Moreover, studies show, despite often utilising the latest in technological or medical advances, care received in private facilities is often the same or lower quality than public care, with higher mortality rates, and high rates of transfer to public hospitals when complications arise.

3. Relying on private insurance is not an option for many – those with pre-existing conditions face addition barriers to insurance, and even those who are able to access plans would have to be subject to means testing, high premiums, or co-pays. The fallout from the institution of Obamacare in the United States also illustrates the profit motive for insurance companies, many of which have refused to offer the lowest-priced packages or to take on lower-income applicants. In the Canadian system, the public insurer is intended to act equitably for all residents, not maximize its bottom line.

4. The best solutions to wait times involve innovation, efficient management, and political investment in the public system. Pilot projects in several provinces (BC and Alberta provide excellent examples) show that simple measures such as creating a single wait list on a next-available-doctor basis, maximizing operating room capacity and efficiency, integrating existing systems, and emphasizing collaborative care can significantly reduce wait times without additional financial investment or reliance on private providers.

5. A decision in favour of Day and the private clinics group would not only allow for private-pay options for surgeries, it would open the door to permit all physicians to bill for any medical service at a rate of their choosing, while continuing to bill the public plan under fee-for-service reimbursement. As we have seen with dental care, the existence of market competition in health care does not, in and of itself, create price fairness. In fact, the costs of private health services are increasing exponentially faster than those publicly covered, according to statistics compiled by the Canadian Institute for Health Information.

A favourable ruling will encourage private clinics – from surgeries to GP's offices – to literally profit from de-investment in public health care. A report commissioned by the federal government in its role as intervenor in the case finds that the detrimental effects of permitting private care on this basis would include "greater income inequality, more people in dire financial straits [to pay for care], and even doctors encouraging longer wait times in the public system to nudge patients into the private system."

Somewhere between the rhetoric of "freedom of choice" and "timely access" of care we find the heart of the Day case: an opportunity to undo the tenets of the single-payer health system of equal access based on medical need, not ability pay. Those who can afford to disregard such principles are clearly not the ones who will suffer without them.

Photo credit: Council of Canadians under a Creative Commons licence

Rebecca Graff-McRae

Rebecca Graff-McRae completed her undergraduate and doctoral studies at Queen’s University Belfast (PhD Irish Politics, 2006). Her work, which interrogates the role of memory and commemoration in post-conflict transition, has evolved through a Faculty of Arts fellowship at Memorial University Newfoundland and a SSHRC post-doctoral research fellowship at the University of Alberta. She has previously worked with the Equality Commission for Northern Ireland and Edmonton City Council.

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