The British Columbia Court of Appeal has unanimously upheld a lower court’s dismissal of a Vancouver surgeon’s challenge of the Medicare Protection Act, saying bans on extra billing and private insurance do not violate the Charter.
The court did find the lower-court judge erred in his analysis of the right to life and says in its ruling the act’s provisions do deprive some patients not only to their right to security of the person, but to the right to life.
However, the court ruled that the breach can be overruled by Section 1 of the Charter, which says rights can be limited if they are shown to be reasonable in a democratic society.
Dr. Brian Day challenged the act, saying wait times in the public health system are too long and stopping patients from paying for those services outside the public system violates their rights.
Day launched his Charter challenge in 2009 and the case landed in B.C. Supreme Court in 2016 with support from four patients as co-plaintiffs.
After a four-year trial, B.C. Supreme Court ruled in September 2020 that lawyers for Day and other plaintiffs failed to show patients’ rights are being infringed by the provincial act.
B.C.’s Health Minister Adrian Dix applauded the decision.
“This ruling emphasizes the importance of our strong public health-care system, which is a cornerstone of our Canadian identity. The purpose of the Medicare Protection Act is to have a publicly managed health-care system for British Columbia in which access to necessary medical care is based on need and not an individual’s ability to pay,” Dix said.
“A public health-care system, properly funded by the federal government, that upholds these principles benefits us all, and we will continue to vigorously defend our publicly funded and administered health-care system, which values equity and fairness over profit.”
The Canadian Doctors for Medicare says while the ruling is good, the province needs to continue to work to resolve the issues the health care system is facing.
“There is no question that our public health care system is currently under strain, and we need all hands on deck to work together to strengthen and improve it,” said Dr. Melanie Bechard, chair of Canadian Doctors for Medicare.
“There are efficient, evidence-based solutions that are proven to reduce wait times and improve the quality of care in an equitable way. Allowing doctors to charge patients as much as they want, and forcing patients to pay out-of-pocket or purchase private insurance is not one of them.”
The BC Nurses’ Union weighed in saying calling this a “victory for patients.”
“The ruling upholds important sections of the BC Medicare Protection Act that ensure patients do not need to pay out-of-pocket for medically necessary health care,” said the BC Nurses’ Union in an emailed statement to CHEK News.
Day is now calling for politicians to act against this ruling, adding that the lives of Canadians are at stake.
“Despite the fact that Canadians are suffering and dying on waitlists, governments have that right as long as the people support them,” said Day.
The doctor says he will seek out an appeal to the Supreme Court of Canada. He did not provide a timeline, only that it will happen “very soon.”
With files from The Canadian Press
The Canadian Press
CHEK News
Oli Herrera
