A constitutional solution for an ailing health system?

Issue: BCMJ, vol. 62, No. 1, January February 2020, Pages 5, 12 Editorials

What is already one of the longest trials in Canadian history will enter its fourth year in 2020. The similar Chaoulli case in Quebec took under 6 weeks. Two main questions are being asked. One is whether Canadians suffering on wait lists outside of Quebec should have the same protection under the Charter of Rights and Freedoms that the Supreme Court of Canada granted to residents of Quebec. The second is whether it is lawful for a government to legislate itself a monopoly on the funding of medical care, promise timely access, fail to deliver it, and then outlaw a citizen’s right to access care for themselves.

The trial will go down in history for many reasons. We heard a defendant’s witnesses admit that a large health authority was submitting incorrect dates on booking sheets submitted to the government’s Surgical Patient Registry. This made children’s wait lists appear shorter than they are. We heard a government expert on ethics give evidence that wealthier productive individuals who pay more taxes should, when it comes to access to surgery, be prioritized ahead of others, including children and the elderly. We heard a defendant’s expert witness (who swore under oath to be a nonadvocate) acknowledge that his affidavit evidence was researched and edited by the Chair of Canadian Doctors for Medicare, a participating respondent and intervenor in the case. The BC government also hired other “expert” witnesses who have been admonished by judges in other provinces for providing inappropriate and inaccurate evidence in court.

We heard from a surgeon who had been instructed by hospital authorities to reduce the number of consultations he sees in order to make the wait times for surgical procedures appear shorter than they were. His department also received instructions to recategorize priority 4 patients (“moderate to severe pain and functional deficit”) to priority 5 (“mild pain, tolerable functional deficit”) in order to make the wait lists seem more acceptable.

Few Canadians are aware that Canada is the only country on Earth in which there are laws that prevent its citizens from accessing private insurance. Last summer I was invited as an opening speaker at an international conference of health executives being held in Budapest. Delegates from around the world were in attendance. I was invited because of skepticism that a country like Canada could force its citizens to “suffer and die on wait lists” (a phrase from the Supreme Court ruling in Chaoulli). Delegates from China were particularly shocked that governments within Canada could claim sovereignty over the health of its citizens. “In China, government limits certain freedoms, but would never prevent an individual from caring for their own bodily health,” they said.

It’s true that not all Canadians suffer from such restrictions. Exempted are those injured at work, federal employees, nonresidents, and federal prisoners. At trial, uncontested and unchallenged evidence was given to show that representatives of all the groups opposing us in court, including the office of the defendant (the Attorney General of BC), the leadership of Canadian Doctors for Medicare, and the opposing trade unions, used private clinics in BC.

Statistics from the Fraser Health Region showed 308 patients died on their wait list in a single year. Extrapolated nationally, that represents 6500 a year, or about 18 patients a day. In 2007, I wrote an editorial[1] in which I stated, “Injured or sick people who languish on wait lists deteriorate and cost more to treat, in both the short and long term.” I argued that a major reduction in wait lists would save billions of dollars.  Sadly, patients who die on wait lists represent even bigger savings.

The argument that care should be based on “need and not ability to pay” is one every physician supports. Does our government truly believe that forcing patients to die on wait lists is conforming to that principle? Government tried to block their own wait-list figures from admission at trial. They failed. Their data reveal 30 000 patients waiting longer than the maximum medically acceptable wait time. This includes patients with very urgent needs. Only 30% to 40% of patients with invasive cancers of the cervix, bladder, and prostate are treated within the maximum acceptable time. Their cancers are at risk of spreading while they wait.

In closing argument, government tried to lay the blame on doctors and patients. They described a doctor who took time off during the terminal illness of his late wife as cutting back on surgery in order to “to smell the roses.” A similar attack was made on a doctor who underwent a quadruple heart bypass. The government also described patients seeking to mitigate their pain and suffering as “parasitic.” Remarkably, they even claimed that judges of the Supreme Court of Canada in the Chaoulli case had been “discredited,” citing as evidence various opinion pieces written by opponents.

The BC government justifies existing policy with some outrageous claims and assertions. One such claim is they are in pursuit of “equity,” ignoring federally funded CIHI data that show low income groups have the worst access and worst outcomes in Canada. They ignore the exempted groups and their own personal and hypocritical use of private care.

Supporters of the status quo attempt the fearmongering strategy of citing a US-style system as the inevitable outcome. They disregard the experience in other universal systems, where a little private sector competition often combined with wait-time guarantees results in vastly superior access and outcomes. Following the Chaoulli case, Quebec was pressured to create care guarantees. The US bogeyman scenario did not happen.

A CMA poll after Chaoulli showed a significant majority of the public, and 83% of physicians, supported the outcome. A 2018 Ipsos poll (mirroring a similar poll in 2012) showed that three of every four Canadians support our litigation. In BC, we have 80% support. When a government spends an estimated $60 million plus in legal costs in an effort to oppose the will of 80% of its people, it makes one wonder what kind of democracy we live in.
—Brian Day, MB


1.    Day B. Divided we stand, divided we fall. BCMJ 2007;49:105-106.

Brian Day, MB. A constitutional solution for an ailing health system?. BCMJ, Vol. 62, No. 1, January, February, 2020, Page(s) 5, 12 - Editorials.

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Dr David Lintern says: reply

Since I retired 3 years ago my wife has advised me to stay clear of Medical Politics. She is wise and I usually do but I saw this article by Brian Day and I can't resist making a comment. For many of the reasons he has stated I agree with his premise that the rest of Canada should accept the ruling handed down in the Chaoulli case. It makes no sense that you can legally purchase health care in Quebec, if the government is unable or unwilling to provide it, but it is illegal to purchase it in the rest of Canada.
I was in practice for 47 years and I was never impressed that the BCMA (now Doctors of BC) ever did a particularly good job on behalf of Family Doctors. Never quite understood that because we represented over half the members.
I note that this article by Dr Brian Day is published in the BCMJ Medical Journal. My question....is the BCMJ Medical journal a publication of Doctors of BC or is it an independent entity? Would appreciate an explanation of the status of the BCMJ Journal.

BCMJ says: reply

The status of the BCMJ:
Owned by Doctors of BC, the BC Medical Journal is overseen and peer reviewed by an eight-physician Editorial Board that operates at arms-length from Doctors of BC so the journal can be an open forum for debate on any topic.

Dr. Jane Hailey says: reply

Thank you, Dr. Day, for all your work in this area.
I am a Vancouver Pediatrician who has trained in England and Canada. I lived in the United States from 1965 - 1979. So I am familiar with all 3 medical systems.
I believe the current medical system is broken - certainly for children. Just today I researched private hearing clinics for small children, as I have so many patients who are on waiting lists that are longer than 1 year.
I remember an Orthopedic Surgeon whom I met in Medical School in England. He emphasized that if you are a farmer, for example, private insurance would protect you and your livelihood if you needed urgent orthopedic care.
"The National Health System", he said, "was not designed to treat tennis elbow."

Luis A Martinez... says: reply

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