Future of medicare hangs in the balance

A marathon British Columbia court case that could end up deciding the future of Canadian medicare is drawing to a close.

The case, now before the B.C. Supreme Court, was launched more than a decade ago by Vancouver orthopedic surgeon and longtime medicare critic Brian Day.

Closing arguments are expected to end next week.

Day, 72, is arguing that two B.C. rules designed to protect the integrity of medicare are unconstitutional.

One bans the sale of private insurance for services that are deemed medically necessary. This is meant to prevent the wealthy from queue jumping.

The second, often referred to as a ban on double dipping, prevents physicians who are enrolled in medicare from also offering privately paid, medically necessary services.

In effect, the double dipping ban forces doctors to make a choice: They can operate inside medicare or they can opt out. But they can’t do both.

The aim here is to prevent physicians from enjoying all the advantages of a single-pay, universal medicare system while at the same time allowing them to give preferential treatment to their more lucrative private patients.

Both rules are designed to prevent the growth of a two-tier health care system and to bring the province into compliance with the Canada Health Act, the federal law governing medicare.

Other provinces, including Ontario, have similar rules. Double dipping is banned in all provinces except Newfoundland and Labrador. Private insurance for medically necessary services is banned in the bigger provinces, including B.C., Alberta, Ontario and (with some exceptions) Quebec.

Supporters of the B.C. government’s position say these rules are necessary to maintain universal public health insurance in a world where the demand for health services always outstrips supply.

They argue convincingly that in such a world, determining treatment priority on the basis of need, as medicare does, is fairer than doing so on the basis of wealth.

In contrast, Day takes a more individualistic approach. He says that rules such as the ban on double dipping have the effect of delaying necessary health care to individuals with the wherewithal to pay for it privately, and thus interfere with their constitutional right to life, liberty and security of the person.

Regardless of how the B.C. court rules, this case is almost certain to end up at the Supreme Court of Canada. That’s not necessarily good news for medicare.

In 2005, the top court came within a whisker of declaring Quebec’s ban on private insurance for medically necessary services unconstitutional. The seven-judge panel hearing that case was virtually split down the middle, with three justices on each side. The seventh, in effect, abstained.

In that case, the court displayed little deference to the government’s argument that some restrictions on individual choice were necessary to protect a valuable and popular social program.

Nor were the judges overwhelmed by the expert testimony supporting medicare. Then-Chief Justice Beverley McLachlin dismissed it as “assertions of belief.”

The top court’s apparent willingness to think the unthinkable encouraged Day to bring his case.

One positive outcome of the near disastrous 2005 nondecision on the constitutionality of medicare was that it shocked governments, forcing them to address the perennial problem of medical wait times.

With luck, that will be the most Day accomplishes with his lawsuit. But don’t count on it. The courts can be unpredictable.

Thomas Walkom is a columnist with Torstar Syndication Services.

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