Canada: Case Brief: Cambie Surgeries Corp. V. Medical Services Commission Of British Columbia – Chaoulli Revisited

The Cambie Surgeries case continues in the BC Courts. This case will likely have widespread repercussions across Canadian healthcare.

On January 28, 2009, a private clinic, the Cambie Surgeries Corp., along with a couple of individual plaintiffs, filed a Charter challenge to BC's ban on private healthcare. Specifically, Cambie sought declarations that sections 14, 17, 18, and 45 of BC's Medicare Protection Act, described below, be declared of no force and effect as they allegedly violate section 7 (life, liberty, and security of the person) and section 15 (equality rights) of the Charter:

Section 14 – Election: Doctors enrolled in the Medical Services Plan ("MSP") can opt out of it and bill the patient directly instead; in these cases, the patient applies for reimbursement from MSP and the physician cannot bill both the patient and MSP for the same service; enrolled doctors also cannot bill above the tariff rate fee;

Section 17 – General limits on direct or extra billing: An enrolled and opted-in physician cannot bill a patient directly for a service included in MSP, or for "materials, consultations, procedures, use of an office, clinic or other place or for any other matters that relate to the rendering of a benefit";

Section 18 – Limits on direct or extra billing by a medical practitioner: Enrolled and unenrolled physicians who practice in a public hospital or community care facility may not bill more than the tariff negotiated between the government and Doctors of BC; this restriction does not apply to unenrolled physicians practicing in a nonhospital facility;

Section 45 – Private insurers: Physicians may not charge private insurers for a service included in the MSP; this restriction only applies to enrolled physicians.

The trial began in Vancouver in front of Mr. Justice Steeves on September 6, 2016 and is anticipated to last approximately six months. The Plaintiffs are expected to argue that a parallel private option would increase reasonable access to health services, improve quality of care and reduce costs, and that those who cannot afford private care can use a means test to access public subsidies.

The Defendants in the case are the BC Minister of Health, the Attorney General, and the BC Medical Services Commission. The Province is expected to argue that a parallel private system will not necessarily reduce wait times, but rather will create a health system preferring those who can afford to pay, and it may give doctors incentive to delay surgery in the public system to force patients into the private system. The Province intends to submit evidence that a private system will negatively impact the public system, and that competition between private and public healthcare systems for a limited supply of health professionals will increase the overall cost of those health human resources, thereby increasing the cost to the public health system.

Among other things, the Province counterclaimed for its economic losses suffered as a result of reduced federal transfer payments due to extra-billing practices at private clinics. (Before the litigation began, the Medical Services Commission received complaints that the Cambie clinic was extra billing patients and double billing (billing the Province and the patient at the same time). A clinic audit was planned but the Charter challenge was started before the audit occurred. The Province alleges that a 2012 audit of the clinic reveals double billing and illegal billings of over $500,000 over the course of a month.)

Rare for a case at the trial level, Interveners are participating in the trial. The BC Health Coalition and Canadian Doctors for Medicare, as well as individuals and individual doctors, have intervened and will present evidence and argue in support of the public system.

Proponents of public healthcare argue that there is a potential conflict of interest for doctors who refer their public healthcare patients to private clinics in which they hold shares. There are also criticisms that private healthcare providers will "cherry pick" the low risk and more profitable patients and procedures, leaving the overstretched public system to deal with the more complicated cases.

While the outcome of this case is far from certain, what is clear is that this case is destined for the Supreme Court of Canada. The ramifications of this case cannot be overstated. The previous Charter case challenging public healthcare, the 2005 Supreme Court of Canada decision in Chaoulli v. Quebec (Attorney General), only impacted Quebec as that decision was based on the Quebec Charter rather than the Canadian Charter. The Cambie Surgeries result will have broad applicability across all Provinces, and will likely play a significant role in deciding the future of Canadian medicare.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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