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.

Get local stories you won't find anywhere else right to your inbox.
Sign up here

Just Posted

Health Minister Tyler Shandro and Dr. Deena Hinshaw, the chief medical officer of health, receive flu shot. Photo via Government of Alberta
COVID cases climb in central zone, Red Deer

The total number of active COVID-19 cases in the province reached 3,138… Continue reading

Many rural municipalities were concerned about a proposed reduction to their industrial revenues, but Alberta’s municipal affairs minister has come up with an alternative solution. (Photo contributed)
Energy industry support won’t injure municipalities

Creating new wells or pipelines would result in a three year ‘tax holiday’

Conservative Leader Erin O’Toole and Premier Jason Kenney participated in a livestream on Oct. 17, 2020. (File photo by THE CANADIAN PRESS)
UCP members pass resolution at AGM calling for privately funded health care option

EDMONTON — Members of Alberta’s governing United Conservative Party have narrowly endorsed… Continue reading

“We weren’t sure what to expect with just doing the 50/50. We have been positively surprised with sales so far,” says Craig Fleming, co-chair of the Red Deer Kinsmen Club’s raffle. (Photo by SUSAN ZIELINSKI/Advocate staff)
Non-profits put their money on 50/50 draws

COVID impacts fundraising events

Student taking a math test. (Pixabay photo)
David Marsden: Students need more testing, not less

Testing has been central to Alberta’s response to the COVID-19 pandemic. It’s… Continue reading

Gillian Robertson celebrates her win over Sarah Frota during UFC 240, in Edmonton, Saturday, July 27, 2019. Robertson used her superior grappling skills to dominate Brazil's Poliano Botelho en route to a unanimous decision win Saturday night on a UFC Fight Night card. THE CANADIAN PRESS/Jason Franson
Canadian Gillian (The Savage) Robertson dominates in UFC decision win in Abu Dhabi

Canadian Gillian (The Savage) Robertson dominates in UFC decision win in Abu Dhabi

Forge FC head coach Bobby Smyrniotis, right, hugs captain Kyle Bekker following their victory in the Canadian Premier League soccer final against Cavalry FC in Calgary, Saturday, Nov. 2, 2019. A month after winning the Island Games in Charlottetown, Hamilton-based Forge FC is back on the move. THE CANADIAN PRESS/Jeff McIntosh
CPL champion Forge FC off to El Salvador for CONCACAF League preliminary-round match

CPL champion Forge FC off to El Salvador for CONCACAF League preliminary-round match

Course workers prepare the landing area at the ski jump venue in Whistler Olympic Park in Whistler, B.C. Friday, Feb. 5, 2010. THE CANADIAN PRESS/Jonathan Hayward
Next generation of Canadian ski talent sets sights on Whistler, B.C., in 2023

Next generation of Canadian ski talent sets sights on Whistler, B.C., in 2023

Mighty Heart is held by groom Siobhan Brown in his stall at trainer Josie Carroll's stable at Woodbine Racetrack, in Toronto, Thursday, Oct. 15, 2020. The one eyed horse, will run in the $400,000 Breeders' Stakes on October 24, attempting to become Canada's first horse to win the Triple Crown since Wando in 2003. THE CANADIAN PRESS/Chris Young
Rain could present big challenge in Mighty Heart’s quest to capture Triple Crown

Rain could present big challenge in Mighty Heart’s quest to capture Triple Crown

Veteran sniper Evgenii Dadonov excited to join Senators: ‘It’s a perfect fit’

Veteran sniper Evgenii Dadonov excited to join Senators: ‘It’s a perfect fit’

Tampa Bay Buccaneers running back Ronald Jones II (27) gets pushed out of bund by Green Bay Packers free safety Darnell Savage (26) during the second half of an NFL football game Sunday, Oct. 18, 2020, in Tampa, Fla. (AP Photo/Mark LoMoglio)
Packers seek to bounce back after embarrassing defeat

Packers seek to bounce back after embarrassing defeat

World junior hockey championship opens on Christmas Day for first time since 2005

World junior hockey championship opens on Christmas Day for first time since 2005

Most Read