A surgeon fighting to legalize private health care says Jean Charest did the least possible when the Supreme Court of Canada struck down the ban on private health care in Quebec..Dr. Brian Day recently lost a constitutional challenge to the ban on private health insurance and private billing in B.C. However, he takes inspiration from legal action taken by physician Jacques Chaoulli..“In Quebec in 2005, a similar process happened. The Superior Court, and then the Quebec Appeal Court, both rejected Chaoulli. Then it went to the Supreme Court of Canada, who overruled them and found in favor of Chaoulli. [It] ruled that patients are suffering and dying on waitlists and that was a violation of the Charter of Rights,” Day said..“If we go there, we will be saying to the same court, should all Canadians have the same rights under the charter that your court gave to Quebec as in 2005? And if they say no, then we truly do have a two-tier system in Canada — one for Quebecers and another for the rest of us.”.Chaoulli represented his own case in court for the landmark victory, but Day says the spirit of the verdict was ignored..“The Quebec government — and it's interesting Charest was the premier at the time —did not obey the Supreme Court of Canada. The arguments… in the Chaoulli case were things like cataracts and hip and knee replacements,” Day explained..“And what the Quebec government did is it legalized insurance for cataracts and hip and knee replacements. Well, no insurance company's going to provide a policy for three things. But essentially, what they did didn't conform to the ruling of the Supreme Court of Canada.”.Day launched his legal challenge in 2009 and his initial trial in B.C. Supreme Court lasted 194 days. The court heard evidence from 36 doctors, 17 patients, and 17 representatives of health authorities and the province. In addition, 590 exhibits including 40 expert reports were put on the record. .In 2018, B.C. Health Minister Adrian Dix announced doctors who charged patients for medically necessary procedures would be fined $10,000. A legal injunction by permitted private clinics to continue to offer services to patients whose medically necessary surgeries were scheduled in the public system beyond recommended wait times..That injunction expired, minimizing the clientele Day can serve at the Cambie Surgical Centre which he opened in 1996..“We haven't been treating BC patients for about six months now,” Day said..“Here is this paradox. On Thursday, I'm operating on patients from Alberta, and Manitoba, and workers compensation patients. The other interesting fact is judges and federal employees and federal politicians are all exempt from these laws. So, we've had judges treated at our clinic and paid for by the federal government,” Day said..“Federal employees and prisoners are all exempt, together with non-[BC] residents. Once you cross the provincial border, it's like you're in a different country. So there's no such thing as a Canadian health system.”.Day offers the same argument that prevailed in the Chaoulli case..“When a government promises you health care in a timely manner… and then fails to provide that care, and lets you wait beyond the time they themselves determined is safe, I think that's unacceptable, that you cannot promise health care, fail to deliver it, and then make it illegal,” Day said..“Those 11,500 Canadian patients [past recommended times] on wait lists would be breaking the law and the doctors or clinics that treated them would be breaking the law if they went and wanted to take care of their own bodies.”.The B.C. Court of Appeal agreed the ban on private health insurance infringed Section 7 rights to life and liberty, but said it was justifiable to keep equitable access for the poor and because the alternative might lengthen wait times. However, a 2021 study by the Commonwealth Fund ranked Canada second-last in health care equity among high-income nations, better only than the U.S..Day says the Canadian status quo fails everyone..“Patients are dying as we talk and all of this data was before COVID… In the [appeal court] judgment, they did say, well, things are likely much worse now. We're basing our decision on what it was like during the trial period, not after the effects of COVID. But, COVID has simply just exposed it more,” Day said..“The lower socio-economic groups in Canada… have the worst health access and the worst outcomes in our system. So it's not doing what it what it claims to do, and that is looking after the vulnerable and the needy. It's doing the opposite.”
