Judge rules against private care for patients as four-year B.C. trial challenging universal health system ends

Dr. Brian Day, CEO of Cambie Surgeries Corp., argued wait times in the public system are too long.PHOTO BY DARRYL DYCK/THE CANADIAN PRESS/FILE

Sep 11, 2020 [Excerpts]
Dr. Brian Day had argued patients have a constitutional right to pay for private care when wait times in the public system are too long

Justice John Steeves of the Supreme Court of British Columbia said in a written ruling after a four-year trial that Day and other plaintiffs failed to show patients’ rights are being infringed by the [Medicare Protection] act, adding its focus is on equitable access, not ability to pay.

“Equal or identical care between patients is not part of the purpose of the (Medicare Protection Act) and nor is it achievable,” Steeves said, adding those who are healthier and wealthier would benefit most from a parallel health-care system.
Lawyers also failed to provide enough evidence that patients’ constitutional rights are being violated, he said.

Duplicative private health care “would not decrease wait times in the public system and there is expert evidence that wait times would actually increase,” he said. “This would cause further inequitable access to timely care.”

British Columbia Health Minister Adrian Dix. PHOTO BY CHAD HIPOLITO/THE CANADIAN PRESS/FILE

In April 2018, Dix announced that starting in October of that year, doctors who bill patients extra for services covered by the Medical Services Plan could face initial fines of $10,000 as part of amendments to the Medicare Protection Act that had not been enforced for 15 years.

The new punishments were necessary because Ottawa had withheld $16 million in health transfer payments over extra billing by private clinics, Dix said.

Private clinics are not illegal, but billing for medically necessary services is a violation of the Canada Health Act.

Dix said private clinics have played a small role when they are contracted to do day surgeries and last year performed about 12,000 procedures out of 300,000 done in the public system.
“The issue here is extra billing and undermining the basis of public health care,” he said.

Dr. Rupinder Brar, spokeswoman for Doctors for Medicare, an interveners at trial, said Day’s position involved having doctors bill for care in both the public and private systems where they could charge more and therefore prioritize those patients.

“It sets up perverse incentives for doctors,” she said, noting physicians are free to opt out of the public system if they choose to practise in private clinics, but not do both.

“This court case was about me being a doctor and charging patients whatever I want, so those people who can afford it will see me and I’ll see them first,” Brar said.

To read the full article, click on: Judge rules against private care for patients as four-year B.C. trial challenging universal health system ends


Judge’s decision expected in constitutional challenge of B.C.’s Medicare Protection Act

VANCOUVER September 9, 2020

A decision is expected Thursday in a marathon legal battle that could change the future of Canada’s health care system.

B.C. Supreme Court Justice John Steeves is expected to release his judgment in a constitutional challenge of key provisions of B.C.’s Medicare Protection Act, four years after the matter landed in the court.

The plaintiffs, led by Brian Day, a private-medicine advocate and chief executive officer of the for-profit Cambie Surgeries Corporation, have argued that patients have a right to pay out of pocket for swifter access to necessary medical care when wait times in the public system are too long. They seek to overturn provisions of the act that prohibit physicians from accepting pay from both public and private purses, limit extra billing and ban health insurance for services that are already covered under the public plan.

Critics counter that the case is not about health care delivery but money, and that opening the door to a two-tier system would prioritize treatment based on a person’s ability to pay over need, upending the very foundation of Canada’s public health care system.

Whatever the decision, the losing side is expected to appeal the matter at the B.C. Court of Appeal, and potentially at the Supreme Court of Canada. A decision by that court would be binding on all courts and administrative board tribunals, and can only be overturned by subsequent Supreme Court of Canada decisions.

“It’s a really important case, in the context of Canadian medicare as we know it,” said Steve Morgan, a professor of health policy at the University of B.C.

The breadth of grievances brought forward by the plaintiffs make the case bigger than what is commonly referred to as the Chaoulli case, he said. In that landmark 2005 decision, the Supreme Court of Canada struck down prohibitions on private insurance, finding the ban violated the Quebec Charter of Human Rights and Freedoms.

“There is a lot in this case; it’s like Chaoulli for non-Quebec Canada, amplified because it’s got that and a few other things that are arguably bigger than the Chaoulli case,” Dr. Morgan said.

“I think the health policy research community, the health policy scholarship community in Canada, are probably holding their collective breath right now wondering what will happen. I do remember when the Chaoulli decision came down, I remember the gasps. People thought, ‘How could the court have ruled in that way?’”

The Chaoulli decision did not open the floodgates to private insurance in Canada, as some had predicted. This is because it only applied to Quebec, and the court said a prohibition on private insurance could be justified if wait times were not unreasonable. The province allowed private insurance for certain treatments, and the decision prompted provinces to set wait-time benchmarks.

Dr. Day said Wednesday that he is optimistic about the case, while acknowledging it will almost certainly be appealed either way.

“I’m very confident of our case, and I’m very confident that we will eventually win,” he said. “You never know, though, because the law is not a science.”

Rupinder Brar, a Vancouver addictions-medicine physician and member of the board of Canadian Doctors for Medicare, an intervening party in the B.C. case, said she was anxiously awaiting the verdict.

“A lot of the time you hear the plaintiffs talking about this court case being about wait times, and the public, when it has nothing to do with health care delivery at all,” Dr. Brar said Wednesday. “We know from evidence around the world that if the plaintiffs were to win, our wait times would actually get longer, because the same physicians and nurses would be working in a dual practice. People would have less access to care, and not more.

“What this court case is about is physicians’ billing, and the money physicians can make.”

Final arguments for the case concluded in February.

“I’m looking forward to completing my judgment and signing my name on it,” Justice Steeves told lawyers at the end of the trial on Feb. 28. “Once I’ve done that, I’ll join the rest of the world in watching the progress of this case with great interest.”


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US doctor in Canada: Medicare for All would have made America’s COVID response much better

America needs a health care system that puts public health ahead of profits. I know we can do better. I see it everyday in Canada amid the coronavirus.
Dr. Khati Hendry Opinion contributor

I’m a family physician who moved to Canada from California 14 years ago, largely because of Canadian Medicare, the country’s national health insurance program. I’ve been much happier practicing medicine where my patients have universal coverage. It frees up doctors like me to focus on patient care and frees patients to focus on their health, instead of worrying about how to pay for it.

But I have never felt more grateful to work in a universal health care system than during the COVID-19 pandemic. My heart aches for the millions of Americans who have fallen ill and then have had to worry about how they will pay for tests and treatment, who have gone to work while sick for fear of losing their health coverage or who have lost not only their jobs but their insurance, leaving them at risk for financial ruin.

While no country is immune from COVID-19, Canada has been able to mount a much more effective response. Canada’s infection rate is a tiny fraction of that of the United States, and trending downwards. Its health system has two big advantages when fighting the pandemic: universal health coverage and an administratively simpler system.

Canadian Medicare is good for patients

Canada’s publicly financed single-payer system covers everybody, regardless of age, health or job status. No one loses coverage due to COVID-19. Canadian Medicare covers services like hospital and emergency care, doctor appointments and lab tests—without copays, deductibles or medical bills. Everyone is in a single “network,” so there are no artificial limits on which hospital or health provider a patient can see. As a result, Canadians are much less likely to delay testing or treatment for COVID-19, or for the chronic medical conditions that increase the risk of severe illness and death from the virus.

Canada’s universal system also has made it easier for medical and public health professionals to respond quickly — and together — without the administrative headache of multiple insurance companies.

In my province of British Columbia, our ongoing history of collaboration between physicians and the provincial health system made it easier to coordinate responses from hospitals, primary care clinics and long-term care facilities. From the start, emergency response committees held daily meetings to address challenges of hospital capacity, distribution of supplies and protective equipment, testing procedures, staffing policies, telemedicine, COVID-19 protocols and the safety of health care workers. The British Columbia public health officer gives regular updates and guidance as we move through pandemic phases.

Instead of primary care practices shutting down and forcing patients to go without care, as reported in many parts of the United States, we have been able to work together through our province’s longstanding “Divisions of Family Practice.” Most of us work in private practice, but we get help to coordinate with other family doctors to make sure that on-call shifts are covered, our practices are safe and our patients get the care they need during the pandemic. I have not had to care for a patient with COVID directly yet, but I have been part of the extensive planning process. 

America should follow
As health care shifted from in-person to virtual practically overnight, Canadian health authorities put systems in place for more provincial phone triage, patient self-assessment protocols, virtual care software and better internet access to remote areas. The province made investments to support the needs of vulnerable populations, such as aboriginal communities, and those who are homeless, live in rural areas, travel for agricultural work or struggle with mental illness or addiction — groups that have suffered disproportionately from COVID-19 in the United States.


Surgical backlog must not be fixed at the expense of the healthcare system

August 4, 2020 Authors: Lesley BarronThara Kumar

As we breathe a tentative sigh of relief that COVID-19 numbers are stabilizing, the ripple effects of the pandemic are becoming more apparent.

Thousands of surgical procedures were cancelled when hospitals adjusted operations to brace for the wave of COVID-19 patients. Now, as governments grapple with this backlog, some have announced their intention to contract out care to private for-profit investor-owned facilities.

British Columbia is using all available beds to address its backlog. This now includes contracting out publicly funded care to for-profit surgical centres such as False Creek Surgical Centre, owned by Kensington Capital Advisers, a private equity firm. Manitoba recently announced that it, too, is considering contracting with for-profit facilities to address its backlog, as has Alberta with its recently announced Bill 30.

There is no doubt that COVID-19 has demanded healthcare systems adapt quickly, without the benefit of the long-term planning usually required for systems change. In the case of surgical backlogs, we should treat an acute wait list problem differently than we treat a chronic one. We must, however, ensure that short-term fixes don’t cause long-term harms – and that they ideally benefit the system.

Investor-owned, for-profit facilities may seem like an obvious solution to COVID-19 surgical backlogs. But what does previous experience tell us about these facilities?

Care delivered in for-profit facilities costs more than not-for-profit care and mortality and morbidity are worse. Past contracts in Alberta have paid higher prices to for-profit facilities than to public hospitals for the same services. Death rates from COVID-19 have been dramatically higher in for-profit long-term care facilities than in publicly owned or not-for-profit homes; in eastern Ontario, 83% of long-term care deaths occurred in for-profit homes. Why this discrepancy? Because investor-owned facilities owe a fiduciary responsibility to earn money for their shareholders, meaning less money is available for patient care. This must not be the way forward for our healthcare system.

So how do we create lasting capacity within the public system beyond the current crisis? Our response must be rooted in the solid evidence about system reform.

To clear the surgical backlog, we must scale-up hospital capacity by extending operating hours to include evenings and weekends. We should immediately implement team-based single-entry centralized wait-lists for the first available surgeon so patients can access care as quickly as possible. This approach has dramatically improved surgery wait times. “Surgical smoothing” would separate planned and unplanned surgeries into different operating room streams, eliminating the problem of emergencies bumping other surgeries. We must scale-up cost-effective, not-for-profit, publicly funded ambulatory surgical centres, such as rural and satellite sites, managed by hospitals.

In the short-term, if governments insist on using private investor-owned facilities in addition to, or instead of, exploring not-for-profit and public solutions, what are some critical elements that must be in place to minimize undermining the rest of our healthcare system?

First, provinces should only be turning to for-profit facilities after exhausting all efforts to increase capacity in the existing not-for-profit infrastructure. Where such for-profit facilities exist, government should consider purchasing them and bringing them under public ownership as B.C. did when it recently bought two private MRI facilities.

Second, any contracting out to investor-owned facilities must not delay or undermine initiatives to expand access to care within the public or private not-for-profit system (such as B.C.’s surgical strategy announced in 2018). Nor should new investor-owned facilities be built to address this pandemic-induced short-term backlog. This is the time to invest in our public health care system, not in a profit-driven industry.

Third, we must have full public oversight of investor-owned facilities. Governments must ensure they are transparent, operate within the law, and are subject to the same standards of inspection and certification as not-for-profit hospitals. This means not charging patients extra fees or selectively “cream skimming” healthier patients whose treatments cost less as a way to increase corporate profits. It means ensuring that proper personal protective equipment and infection control practices are in place.

We have a once-in-a-generation opportunity to learn from this pandemic and improve our healthcare system. We need to come out of this crisis with a stronger, more equitable public healthcare system, not a more fractured one.

As we recover from this crisis, we should be working toward a future that always puts patients above profits. If this crisis is instead used as an opportunity to expand and entrench for-profit investor-owned delivery of health services, it will be at our peril.


COVID-19 Has Exposed the Perils of ‘Financialized’ Seniors’ Care
The pandemic has highlighted worse outcomes and more deaths in for-profit care homes.
Researchers have found that for-profit facilities have lower staffing levels, lower quality of care and poorer resident outcomes in both the US and Canada.


Careful, Canada: What Ireland has learned about two-tier health care

Steve Thomas – for CBC News Opinion
December 14, 2019

The introduction of private health insurance in Ireland allowed a two-tier system to develop with long waiting lists in the public system and limited financial protection for households, says Steve Thomas. 

It is striking that as Canada seems on the cusp of embracing two-tier health care, Ireland is struggling to limit it.

In 1957, the Irish Republic decided to set up a voluntary health insurer owned by the state to take the pressure off the public system, allowing health care to be bought by those who had the means.

It sounded reasonable, and 60 years later, private health insurance has taken off with almost half the population covered and plans offered by private companies. This allows faster access to public care subsidized by the state, and queue-jumping of the very long waiting lists by those who are better off financially.


Thirteen things you need to know about the people trying to end Canadian health care as we know it.

PressProgress September 7, 2016


Although Day claims his court challenge is all about his constitutional rights, it’s hard to overlook the influence of an audit that found “significant evidence” Day had been “extra billing” patients on a “frequent and recurring basis.”

Day originally filed his lawsuit in 2009. But the BC Medical Services Commission first raised concerns about “extra billing” practices at Day’s company as far back as May 2007. His company was formally notified it would be audited in September 2008. Lo and behold, Day filed a lawsuit several months later.

The audit, completed in 2012, found evidence Day’s clinics extra billed patients for “publicly-insured medical services” to the tune of half-a-million dollars during just one 30-day time span.
Canadian Doctors for Medicare explains “extra billing” is “against federal and provincial law” and can include “extra fees for medical consultations, examinations, diagnostic testing and other manners of ‘upgraded services’.”

Day recently told the National Post that he thinks “a wealthy person” deserves a higher standard of care than everybody else:
“We in Canada will give the same level of services to a wealthy person as to person who isn’t wealthy, and that doesn’t make sense.”


Private health-care is all about doctor profits, federal lawyer tells B.C. court

Camille Bains · The Canadian Press · Posted: Nov 25, 2019
Plaintiffs ‘want to make steady money in the public system and then make more money [in the private system]’

Profit for doctors providing surgery in private clinics is at the heart of a trial that threatens to undermine Canada’s universal health-care system and its principles of equity and fairness for everyone, a federal lawyer says.

B.J. Wray, representing the attorney general of Canada, told the B.C. Supreme Court that a legal challenge by Dr. Brian Day  aiming to strike down provisions of the province’s Medicare Protection Act is based on increasing income because doctors enrolled in the public system are prohibited from charging patients for medically necessary services in private clinics.
“The corporate plaintiffs want to make steady money in the public system and then make more money in the privately funded system,” she told Justice John Steeves.


The secret moves to increase private health care

By Bob Hepburn Star ColumnistWed., Jan. 9, 2019

……..major financial interests in Toronto are quietly supporting a controversial lawsuit by Dr. Brian Day of Vancouver, founder of the private Cambie Surgery Centre, who has brought a constitution challenge to B.C.’s restriction to private health care. The case is now before the B.C. Supreme Court and is expected to land eventually before the Supreme Court of Canada. These interests are reportedly ramping up an $8-million war chest to help fund Day’s court cases. 


China Caring for our Seniors

CASTANET Colin Dacre – May 26, 2018

The Summerland Seniors Village is one of 21 B.C. facilities owned by Retirement Concepts, a company purchased by China’s Anbang Insurance for $1B last year. In February, the Chinese government seized control of the company and jailed its CEO for fraud.

Central Okanagan MP Dan Albas says he’s heard from family members of residents at the Summerland Seniors Village that care has degraded since the takeover.
He said he’s been told of instances where the facility has been staffed so short, a single nurse is supervising 20 residents overnight.


Charter challenge issue strike at the heart of the priniciples of medicare


Universal health care on trial: What you need to know about a historic Charter challenge in B.C.
For a decade, surgeon Brian Day has been fighting to undo laws barring patients from paying for medical care at private clinics like his. Here’s a primer on how the case came to be, and how its outcome could affect you.

The B.C. law doesn’t explicitly prohibit well-off patients from buying their way to the front of the queue. Rather, it dampens the market for private care by prohibiting physicians from “enrolling” to work in the public and private systems at the same time; by forbidding enrolled doctors from charging patients for publicly covered services; and by barring the sale of private insurance for medically necessary hospital and doctor care. (Private insurance is, of course, widely available for care not covered by Canada’s “universal” system, which does not include prescription drugs, most dental care, home care and other services provided outside hospitals and physicians’ offices.)

For more than two decades, the B.C. government looked the other way while Dr. Day’s Cambie Surgery Centre, which opened in 1996, and other private surgical clinics bucked the law. 

The BC Health Coalition, Canadian Doctors for Medicare and the patients and doctors who intervened with them, described in their written closing arguments how they believe shortages of anesthesiologists, nurses and doctors contributed to waiting lists in the public system. One doctor who testified in the case made $965,826 in 2016-17 working for Cambie and the Specialist Referral Clinic, another plaintiff in the case – about four times as much as what he usually earned in public billings.


Advocates demand end to extra billing, upset over 15.9 million federal claw back


A Welcome Second Chance for BC Medicare Protection

This article points out a few aspects that are not often talked about.

For every dollar of extra billing by a private for profit clinic, the federal government claws back an equal amount from its cash transfers.

In 2015-16, that amount was $15.9 million, enough for 53,000 MRIs. So effectively, we all pay for the extra billing.

B.C. is the only province that Ottawa has repeatedly fined for unlawful extra billing.