by The
Canadian Press 26 Feb 2020 by Camille Bains
A legal
challenge by the owner of a private clinic providing scheduled surgery for
“affluent” patients should be denied because it is based on a flawed
constitutional argument, a lawyer for the BC government says.
Jonathan
Penner said Tuesday that Dr. Brian Day’s bid to have the province strike down
provisions of the Medicare Protection Act prohibiting double billing amounts to
an “unlawful business model.”
Penner
told BC Supreme Court Justice John Steeves that Day’s legal team has called the
province’s position shocking, adding that’s based on a disregard for patients
who can’t afford private care at clinics, such as the Cambie Surgery Centre,
opened by Day in 1996.
“In my
submission what truly is shocking is this complete and utter disregard for the
situation of anyone who is not in a position to come up with the funds to pay
them to provide rapid surgical services,” he said.
“They
seek the privileged, those few privileged British Columbians who require
scheduled surgery and have the resources to pay for private care,” Penner said,
adding “ordinary” people would have less access to care under a two-tier system
Day has proposed.
The frail
and elderly, patients with complex conditions, and those with severe mental
illness and/or substance-use issues would be particularly disadvantaged because
regulating a public-private system that could invite American-style insurers
would come at a high cost and take money away from public health care, he said.
Wait
lists for patients requiring palliative care as well as emergency and urgent
services would also increase under such a system because doctors,
anaesthesiologists and nurses would be lured to clinics allowing them to earn
money in both the public and private systems, he said.
Penner
suggested physicians should no longer be enrolled in the Medical Services Plan
if they choose to work in for-profit clinics.
Day, an
orthopedic surgeon, has hinged his decade-long legal battle on arguments around
patients having a right to pay for services if wait times in the public system
are too long.
He has
maintained that four plaintiff patients have been deprived of life, liberty and
security under the Charter of Rights and Freedoms after suffering harms from
waiting for surgery in the public system before they sought care at his clinic.
Penner
called that argument “political theatre” and said Day’s legal team has failed
to identify whether any harms the patients may have endured were related to
wait times in the public system.
Hanna
Davis, a lawyer for the federal government, said Day’s assertion that private
health insurance could enable patients to access care at clinics like
his would not apply to people who can’t afford premiums, especially if they
have pre-existing conditions.
The same
applies for employer-based insurance, which also would not be available to
those who are retired, unemployed or not provided with such options at their
workplace, she said.
Regardless,
the underlying principle of the Canada Health Act is based on access to care
based on need, not ability to pay, Davis said.
A
two-tier scheme would weaken the public system, which would be left to deal
with more complicated health-care cases while private clinics would take on
easier surgeries as part of what is referred to as “cream skimming,” she said.
The
Canada Health Act does not explicitly require provinces to prohibit duplicative
private insurance as a condition of federal health funding, she said.
“However,
all Canadian provinces have either voluntarily prohibited or effectively
restricted private health duplicative insurance as one of the main
safeguards to protect the integrity of the public health-care system.”
Requiring
people to have their own insurance would amount to discrimination
against those who wouldn’t be eligible for it, Davis said.
When Day
opened his clinic, he said surgeons who worked in hospitals were not getting
enough operating-room time and profit was not his motive.
However,
the facility has been operating since 2003 in violation of unproclaimed
provisions of the provincial Medicare Protection Act.
Health
Minister Adrian Dix announced in 2018 that the government would begin to fine
doctors $10,000 for a first offence if they charged patients for publicly
available services and that the “don’t ask, don’t tell” approach that allowed
private-clinic surgeries and diagnostic tests to continue would no longer be
permitted.
Day
won an injunction at the BC Supreme Court that ordered the government not to
enforce that section of the act until his constitutional challenge is dealt
with.
No comments:
Post a Comment