Cambie Surgeries Corporation v British Columbia (Attorney General)

The case that could change healthcare in Canada 

By: Leah Kelley (2L)

In September 2020, the Supreme Court of British Columbia (BCSC) released its Reasons for Judgment in Cambie Surgeries Corporation v British Columbia (Attorney General). Cambie will be appealed in June 2021, and the decision has the potential to declare as unconstitutional the ban on private-pay health care in British Columbia, including limits on extra billing and user fees, private duplicative insurance, and physician dual practice.

Case Summary

The Canada Health Act (CHA) outlines the criteria and conditions related to insured health services that each province and territory must meet to receive their full federal cash contribution through the Canada Health Transfer. These include five core criteria: universality, portability, public administration, comprehensiveness, and accessibility. The CHA also prohibits extra-billing and user charges by enrolled physicians for services covered by the public system and rendered to insured beneficiaries. This is administered in BC through the Medicare Protection Act (MPA). The MPA requires physicians to choose: for services covered under BC’s Medicare Services Plan (MSP, the public insurer), enrolled physicians cannot bill patients privately (out-of-pocket) or through private duplicate insurance. Physicians not enrolled in MSP are free to charge patients directly (except if they are in hospitals or community care facilities), but they cannot also bill the public purse. In other words, physician dual practice is not allowed. 

The plaintiffs, Cambie Surgeries Corporation and their affiliated Specialist Referral Clinic, admitted to billing both publicly and privately (paras 356-387) for services delivered at their private surgery centre in Vancouver.

The plaintiffs sought  to overturn key sections of the MPA (14, 17, 18 and 45, the “impugned provisions”) that prevent physicians from:

1. Charging fees that exceed the amount reimbursed by the public system. Section 14(1) of the MPA precludes enrolled physicians, who are opted-out, from charging patients more than they would be reimbursed from MSP.
2. Conducting a dual practice in both the private-pay and public-pay systems. Sections 17 and 18(3) prevent physicians from billing both MSP and private duplicative insurance for services covered under MSP. Overturning these provisions would incentivize physicians to give preferential access to those willing to pay more through private duplicative insurance (para 2656). 
3. Billing private duplicative insurers for the same services that are covered by public insurance. Currently, private insurance can only cover services that are outside of those covered by public insurance. Overturning section 45 would allow those who can afford private duplicative insurance to access care faster than those in the public-pay system (para 2775).

The impugned provisions prevent a duplicative private healthcare system that would prioritize those who can afford to pay for private care over those who cannot (para 1997).

The plaintiffs submit that prohibiting patients from accessing private diagnostic and surgical services when they cannot access them in a timely manner through the public system constitutes a violation of section 7 of the Charter of Rights and Freedoms. They claim it leads to “prolonged pain and disability, serious psychological harm or deterioration and irreparable harm” (para 73). They make no claim that overturning these sections of the MPA would reduce wait times in the public system. In fact, academic literature, as well as testimony by experts in international health economics and health policy and the Chief of Staff of Ottawa Hospital, indicates that wait times in the publicly-funded system would increase if these changes were allowed (paras 2308-2349).

A section 7 analysis involves two steps. First, plaintiffs must prove that the impugned provisions of the law deprive persons of their right to life, liberty, or security of the person. Second, plaintiffs must establish that the deprivation is not in accordance with principles of fundamental justice.

Justice Steeves of the BCSC found that neither the right to life nor the right to liberty were engaged because no evidence of any deaths caused by waiting times existed in BC (para 12). However, he found that “situations denying patients the ability to avoid unreasonable wait times violates theirright to security of the person” (para 10). Some patients who have to wait beyond the recommended timeframe to receive elective surgery experience “increase[d] risk of deterioration and reduced surgical outcomes” (para 10). However, the “impugned provisions do not violate the s 7 rights of the plaintiffs or other similarly situated patients in the public system” (para 18).

Steeves held that the purpose of the impugned provision is to prevent a duplicative healthcare system that would increase demand on and reduce capacity in the public system, increase costs, perversely incentivize physicians, and exacerbate inequity in access to care (paras 15, 2274-2670). The impugned provisions achieve these goals in a way that is neither overbroad nor grossly disproportionate (paras 2671-2784).

The plaintiffs also advanced a section 15 claim related to those who suffer workplace injuries. This was dismissed by Steeves for lack of evidence of a disproportionate adverse effect on the elderly, very young or disabled as alleged.

Steeves commented on section 1, despite finding no breach under sections 7 or 15 (para 2895-2903). He found that, had there been a breach, the impugned provisions would be saved as justifiable limits under section 1 of the Charter. The Justice held that the objectives of “preserving and ensuring the sustainability of the universal public healthcare system and ensuring access to necessary medical services is based on need and not the ability to pay, are pressing and substantial” (para 21).

Cambie will be appealed to the Court of Appeal for BC (BCCA) in June 2021. If the impugned provisions are found to be unconstitutional on appeal, this will create a dangerous precedent for the administration of public health insurance across the country. As Steeves noted, “[w]hile it is not explicitly mandated under the CHA, in order to meet the five federal criteria, provinces have generally employed regulatory measures including prohibiting the sale and purchase of private health insurance and restricting the ability of physicians to bill patients above and beyond the provincial health plan rates” (para 197). If the BCCA holds the impugned provisions to be unconstitutional under the MPA, this would establish persuasive precedent to strike these requirements from similar provincial legislation across the country. Regardless of what the BCCA decides, the case could end up in the Supreme Court of Canada, potentially setting national precedent. 

Understanding the effect on wait times

Steeves’ opinion is ground breaking in that it takes a decisive position on a long-held debate in healthcare: whether allowing a duplicative, private-pay system would solve the problem of excessive wait times for some diagnostic and surgical services.

It is true that the Canadian healthcare system has a wait time problem for some diagnostic and surgical services. For example, elective surgeries such as hip and knee, cataract, and cardiac bypass surgery have unacceptably long wait times. In the first quarter of 2018, 41.3% of patients who required elective surgery in BC had to wait longer than recommended (para 1358).

The plaintiffs contend that a duplicative private system would free up capacity in the public system and reduce wait times. Steeves found this evidence to support this hypothesis was not credible (paras 2326, 2643). Academic evidence points to the fact that wait times in the public system would increase because a parallel private healthcare system “draws from the same human resources as the public system” (para 2369). The public system in BC has existing challenges retaining medical staff (para 2371). Thus, the diversion of resources to the private system would reduce the already strained capacity of the public system. An OECD report from 2013 expressly found that duplicative private health insurance does not reduce healthcare demand in the public system. Rather, it “increases demand and costs and has been associated with queue jumping by patients who can afford private insurance” (para 2394). Overall demand increases in part because patients in the private system see specialists more often (para 2290). Further, the efficiencies gained by having a single administrative system for public healthcare is lost, driving up administrative costs (para 2294).

If we introduce a private insurance mechanism for services that the public system offers (e.g., hip surgery), then those who have high-paying jobs could have access to this private insurance through their employer. However, those who have low paying jobs would be stuck in the public system. Physicians could split their time between systems, but they can be paid more through the private insurance model. This incentivizes them to book privately funded surgeries more frequently than publicly funded surgeries (thus providing faster access to those who can pay). This fundamentally contradicts the principles of equitable, universal health care in Canada. Our system is designed such that services paid for by the government cannot be preferentially accessed by anyone.

My issue with the plaintiffs’ claim, which is reflected by the BSCS decision, is that it would set a precedent to establish a multi-payer system like that in the United States. Anyone who looks at the United States healthcare system recognizes the vast inequities that exist. Those who can afford to pay privately for the best health systems (e.g., Kaiser Permanente, Mayo Clinic) have access to some of the highest quality healthcare in the world. However, those with public insurance are often subject to significantly longer wait times and difficulty accessing care, in part because the reimbursement rates are lower.

The issue of wait times in Canada is pressing and needs to be addressed. There have been several political and policy attempts to do so (e.g., the Kirby Report, Romanow Report, 10-Year Plan to Strengthen Health Care), but it comes down to two things: 1) we need improve the ways in which we deliver health care and 2) we need to invest more resources into expanding the public system’s capacity for planned and elective surgeries. Creating a duplicative, private pay healthcare system will not solve the problem.

The Constitution of the World Health Organization recognizes that “[t]he enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being without distinction of race, religion, political belief, economic or social condition.”

If the BCSC decision is ultimately overturned, I believe it would be a violation of this fundamental international human right. The plaintiffs are attempting to use the human rights recognized under the Charter of Rights and Freedoms to establish a multi-payer system that would increase wait times and reduce access to care in the publicly-funded system. It would allow faster access to care for those who can afford to pay and make it legal for doctors to prioritize them above those in the publicly-funded system. The actions of the plaintiffs are embodying the fear that some put forward before the Charter was passed, namely that it would be used to advance the interests of the privileged and limit the power of the state to protect the needs of the oppressed (Webber at page 218-219).