The health care trial of a generation has started in Vancouver. Four private plaintiffs are joined by Dr. Brian Day of the Cambie Surgical Centre in a constitutional challenge of British Columbia’s laws.
If they are successful, B.C. residents will be freed from suffering and languishing on ever-growing public health-care waiting lists. And B.C.’s health-care system will modernize to the standard of timeliness in every other Organization for Economic Co-operation and Development (OECD) nation with a public health-care system.
What’s not at stake is public health care. Anyone saying that public health care is in jeopardy is grossly misleading the public. This trial cannot, and will not, lead to any “Americanization” of Canadian health care.
Here’s the problem. The cost of maintaining B.C.’s public health system has outgrown the province’s funding capacity and the only solutions available are politically undesirable. A 2011 C.D. Howe report said the choices are to sharply reduce the availability of public services, increase taxation, allow for extra billing or set lower standards of care for those within the public health system.
So B.C. capped annual spending increases at 2.6 per cent and cut costs by reducing operating room time and hospital beds. According to the OECD, the solution to the budgetary pressures created by rising costs in a closed system like B.C.’s “has been to ration [health care] by means of long waits for treatment.”
This problem is entirely of the province’s making. B.C. law prohibits doctors from working simultaneously in the public and private health-care systems. It also prohibits residents from accessing private insurance to pay for medically necessary treatment in B.C. These prohibitions together with the province’s rationing of health services has resulted in long waiting lists, and many residents in urgent need of medical interventions are unable to receive timely treatment before suffering irreparable harm and risking death.
In the 2005 Chaoulli decision, the Supreme Court of Canada struck down similar laws in Quebec. That put the B.C. government on notice that if it could not provide timely medical services for all residents, it could no longer legally prevent them from accessing those services privately. After all, access to a waiting list is not access to health care.
Freeing patients from waiting lists will mean that young mothers, like plaintiff Mandy Marten, will not be forced to wait. Mandy noticed blood and mucus in her stool and immediately sought medical attention. She was understandably worried. After seeing her doctor, she was put on a seven-month waiting list for a colonoscopy. Fortunately, Mandy didn’t wait. She paid out-of-pocket for the test, and found she had stage-four cancer and would likely have died within seven months.
Mandy avoided tragedy because she could afford to pay. Most B.C. residents cannot but private insurance would make it affordable. By prohibiting private insurance, B.C. is consigning mothers with fewer resources than Mandy to die.
But tragedy is not always avoided. In 2004, eight-year-old Walid Khalfallah of Kelowna was diagnosed with a degenerative spinal condition. His family trusted that B.C.’s health system would provide the treatment Walid needed in a timely fashion. But after waiting for more than two years as his health deteriorated, Walid’s family sought medical attention in the U.S. Treatment came too late and Walid is now permanently paralyzed.
Stories like these are far too common. B.C. is unable to provide the medical services that residents require, but Canada’s Charter of Rights and Freedoms prohibits the province from forcing any mother or child to suffer on a public waiting list. It’s a tragedy that the B.C. government is going to court to keep them there.
The cost of this endeavour is enormous. The trial is expected to take 26 weeks, and will include the testimony of experts from across Canada and around the world. Aside from the federal and B.C. governments, the list of opposing parties is a who’s who of well-funded interest groups.
Without the support of the Canadian Constitution Foundation and donations, none of the plaintiffs could afford to defend their constitutional rights in court.
All parties expect this to end up at the Supreme Court of Canada.
Derek James From is a lawyer with the Canadian Constitution Foundation.