The court decision that could help fix Canadian healthcare

The court decision that could help fix Canadian healthcare

One thing the COVID-19 pandemic has revealed with painful clarity is the woeful inadequacy of Canada’s healthcare system. The system showed that it could not handle the onslaught, but even now, as COVID cases and hospitalizations have been trending down, multiple Ontario hospitals are overwhelmed. The system is in dire need of an overhaul and of some innovative thinking.

At the end of May, Brampton Civic Hospital announced a “code gridlock” and the Children’s Hospital of Eastern Ontario (CHEO) in Ottawa said its emergency department “just had its busiest May ever and is on-pace to set a record for June.”

CHEO went on to say that on June 11, it had 16 patients admitted that did not have a bed to go to, and some stayed in the emergency department for almost 48 hours. In April, Ontario patients were spending an average of 20 hours in emergency rooms before being admitted to hospital, compared to 14 hours last year.

The Ontario Nurses Association has said the reasons behind the current crunch includes capacity issues that existed before the pandemic, nurse shortages and a continued stream of COVID admissions. So while COVID remains a part of the puzzle, and may continue to be for some time to come, it appears that this current crisis is more like a return to the system’s normal state of failure.

Overwhelmed emergency departments are just the tip of the iceberg. Ontario has a pandemic backlog of one million surgeries and almost 22 million health services. Long wait times for surgery is a systemic issue in Canada caused by the rationing of healthcare services in a system that is run by a government monopoly.

It’s no wonder Canada was so easily overwhelmed by COVID. We teeter on the brink of being overwhelmed on a regular basis, even without COVID making the situation worse. Canada has fewer hospital beds than most other developed countries, with OECD data showing that this country has just one bed for every 400 citizens. Even before COVID-19, 91.6 per cent of Canadian intensive care beds were occupied.

Long wait lists and hallway health care have real consequences for patients. Long wait times can cause patients’ conditions to deteriorate. Patients who can’t get timely care not only suffer because of the time they spend waiting, they also have worse medical outcomes and can even die waiting for medical procedures.

Innovation is needed. The law in Canada prevents patients from having the option to access healthcare in a crucial way: by paying for it — either directly, or indirectly through private insurance.

In Canada, we have something called the Canada Health Act (CHA). This law establishes the framework for federal financial contributions to the provincial and territorial health insurance programs, commonly called “medicare.” To receive federal funding, the provinces and territories must comply with the terms of the CHA, which establishes the principle of universal, single-payer health care.

Provincial governments have responded to the Canada Health Act and their reliance on federal transfers by enacting their own legislation to crush any perceived threat to medicare.

For example, the Government of British Columbia enacted the Medicare Protection Act, which created blanket prohibitions against private insurance and dual practice (when physicians work in both the public and private systems). This goes beyond the goal of universal care, as the law actively prevents patients who have not been adequately treated by the public system from obtaining the treatment they need outside of it.

The result is a system of government-rationed healthcare that is easily overwhelmed and leaves patients suffering on worsening wait lists. Forcing patients to languish on wait lists past medically acceptable wait times in the name of an ideological ideal is wrong, and legal groups like the Canadian Constitution Foundation argue that it is also a violation of patients’ charter-protected right to security of person. But instead of seeking to innovate during a time of crisis, provincial governments continue to fight healthcare choice for patients in court and defend a failing system.

In British Columbia, private surgical clinics, including the Cambie Surgery Centre, have challenged the system, alleging that the B.C. Medicare Protection Act violates patients’ Charter rights by prohibiting them from seeking medical care outside the government system when it fails. The court challenge began in 2009 and the trial took more than four years. The trial decision was released in 2020, and the appeal was heard exactly one year ago — in June 2021.

The clinics in B.C. have been continuing to operate because they obtained an injunction pending the outcome of the appeal. So they have been permitted to treat patients that the public system can’t accommodate within maximum wait times.

In the meantime, B.C. Health Minister Adrian Dix proudly touted a strategy of tapping these private clinics to clear the surgical backlog resulting from pandemic-induced cancellations — a deeply ironic strategy, given that the same clinics would hardly even have the rationale to operate under his government’s crackdowns.

A decision in this case should be expected soon. The outcome could have a monumental impact on Canadian healthcare, and the perpetual gridlock and wait times that patients have sadly had to grow accustomed to.

This article was originally published in the National Post.