“Access to a waiting list is not the same as access to health care.”
This observation from the 2005 Supreme Court case of Chaoulli v. Quebec is probably the most famous judicial statement about Canadian health care. And rightly so. On the surface it is simple logic, but its depths embrace the frustration of tens of thousands of Canadians who are forced to suffer unnecessarily on provincial health care waiting lists each year. For them, this dry, ineluctable proposition is a rallying cry.
Last week, four patient plaintiffs and the Cambie Surgery Centre, a private clinic, finally got the chance to put that logic to the test in the B.C. Supreme Court. Their case is simple: If a province does not provide timely medical treatment through its public health care system, it cannot legally prevent patients suffering on waiting lists from taking control of their own health and arranging for treatment privately. The trial is scheduled for 24 weeks of court time over the next eight months, reflecting the scope and import of this constitutional challenge.
The plaintiffs’ case is based on the ongoing violations of patients’ rights to life, liberty and security of the person, but the remedies it seeks shine a light on a larger systemic failure. Because the number of annual procedures in our health care system is determined by what a province is willing to spend within its overall budget, and not by either the demand for treatments or the availability of resources, patients are often kept for months or years on waiting lists while operating rooms are closed early and surgeons stand idle after fulfilling their quotas.
These clinics have operated in British Columbia with the tacit approval of successive NDP and Liberal governments since the 1990s with no evidence of any adverse effects on the public health care system. To the contrary, because these clinics treat people who would otherwise be occupying places on waiting lists, every year they ensure that more people are treated than would be treated under the public system alone. They also save the province about $200 million a year by performing faster surgeries on patients in the provincial workers’ compensation program. If they are forced to close, the government will have to find space within the public system for the work they currently perform.
There is a natural fear of change, but two things are clear. First, the current system is failing too many patients and is only going to get worse as our population ages. Second, decades of experience here and in every other developed country have shown that it is not necessary to force sick Canadians to suffer under government-created scarcity in order to guarantee universal health care. We can have a strong — likely even a stronger — public health care system while also allowing more choice, as Australia, the United Kingdom, Sweden, the Netherlands, and, well, just name your favourite European social democracy, have shown.
In a series of recent cases, the Supreme Court has endorsed what, in Carter v. Canada, it called the “tenacious relevance in our legal system of the principle that competent individuals are — and should be — free to make decisions about their bodily integrity.” This right, enshrined in section 7 of the Charter of Rights and Freedoms, embodies “a notion of personal autonomy involving … control over one’s bodily integrity free from state interference and it is engaged by state interference … that causes physical or serious psychological suffering.” Or, to put it in the terms of this case, patients should not have to suffer for months or years on waiting lists. They have the right to take control of their own health when the government has provided them with access not to health care, but only to a waiting list.
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