“Access to a waiting list is not access to health care.”
~ Chief Justice Beverley McLachlin and Justice John Major, 2005.
For more than six years, four British Columbians have been waiting to get their day in court to fight for timely access to healthcare. Today, with the support of the Canadian Constitution Foundation, their constitutional challenge to BC’s rationing of healthcare services finally begins in a Vancouver courtroom!
The four patient plaintiffs join Dr. Brian Day’s Cambie Clinic in the most significant healthcare case in more than a decade. Their claim is simple and builds on the existing Supreme Court of Canada precedent in Chaoulli v. Quebec: if the province cannot provide timely, medically-necessary treatment for all BC residents, then it cannot also legally prohibit them from accessing that care privately.
Lead counsel on this landmark case, which is scheduled for 24 weeks of courtroom time and which will feature evidence from more than 80 witnesses, is Peter A. Gall, Q.C., of Gall Legge Grant & Monroe LLP. For more on this case, please see the FAQ linked to at the bottom of this story or at www.yourhealthcantwait.ca.
Canadian Constitution Foundation Executive Director, Howard Anglin, said:
“No one in BC — no child, no parent, no retired person — should be forced to suffer or risk death while waiting for medically-necessary treatment because of government rationing of healthcare. If a province cannot provide timely, medically-necessary healthcare for all its residents, then it must allow doctors and patients to work together to find a solution for their healthcare needs. To do this, the province must allow surgeons who have completed their government-imposed limit on procedures in the public system to also provide their services privately, and it must lift the ban on BC residents paying for medically-necessary treatment using private insurance, so that more people can afford private treatment. As long as the government fails to do this, it will continue to violate patients’ Charter rights, including the fundamental rights to life, liberty, and security of the person — rights that the Supreme Court has repeatedly recognized and upheld in the healthcare context.”
BC Law Violates Constitutional Rights to Life, Security of the Person, and Equality
Because healthcare funding is determined by what the province is willing or able to pay in its annual budgets, and not by either the demand for treatment or the availability of resources, patients are left suffering for months or even years waiting for treatment while operating rooms remain closed and surgeons idle after fulfilling their quotas of procedures. This unnecessary suffering violates the rights to life, liberty, and security of the person guaranteed by section 7 of the Charter of Rights and Freedoms.
It is a problem with a straightforward solution. BC law prohibits doctors enrolled in the public system from providing treatment outside of that system for government-insured, medically-necessary procedures, It also prohibits BC residents from using private insurance to pay for government-insured, medically-necessary treatment. If these two restrictions — neither of which is required by the Canada Health Act — were removed from BC’s Medicare Protection Act, patients currently suffering physical pain, mental anguish, and loss of employment could access faster treatment at clinics like the Cambie Clinic.
Since 1998, these clinics have operated with the acquiescence of successive NDP and Liberal governments. In fact, in 2000 then-Premier Ujjal Dosanjh acknowledged the work of the Cambie Clinic, noting it relieved pressure on the public system. It is only under legal pressure from the provincial Nurse’s Union that the current government has been forced to bring legal action to try to close the Cambie Clinic and other private clinics. This constitutional case is a pre-emptive challenge to that legal action.
Interestingly, not everyone in BC is forced to languish on waiting lists. Federal prisoners, some government employees, and workers injured on the job who are covered by WorkSafeBC are some of the groups exempted from the restrictions in B.C. law. These persons are allowed to receive timely medical care at private clinics. For example, the court will hear about the case of a teacher who injured one of his knees on the school playground while working and the other while skiing on a weekend. This teacher was only able to have the knee injured at work repaired in a timely fashion, while he was forced to wait considerably longer for surgery on his other knee. The absurdity of this two-tier system within the current law disproportionately discriminates on the basis of age and disability, and therefore violates the equality provisions of s.15 of the Charter.
Read the CCF’s FAQ for a more in-depth explanation of this case.
The Canadian Constitution Foundation (“Freedom’s Defence Team”) is a registered charity, independent and non-partisan, whose mission is to defend the constitutional freedoms of Canadians through education, communication and litigation.