Canadian Health Care in the News
The COVID-19 pandemic exacerbated long-standing concerns that Canada's publicly-funded health care system is experiencing pressing capacity and labour shortages. There is a growing lack of access to primary care across the country spurred by a significant shortage in family physicians.1 There is also an alarming shortage of nurses, which continues to grow.2 This past summer, multiple emergency rooms in both urban and rural areas across Canada were forced to close temporarily due to staffing shortages in the health care workforce.
These critical labour shortages mean that Canadians seeking care now face longer wait times for medical and surgical procedures, including urgent care.3 As wait times increase, more debate circulates regarding the merits of public sector versus private sector health care delivery.
Canada's health care system is funded and administered under a complex framework involving the provincial, territorial, and federal governments.4 Under this framework, the federal government sets national health care standards and provides some funding, and the provincial and territorial governments coordinate and deliver health care to individual Canadians.5 The provinces and territories are responsible for the administration and delivery of health care, including coordination of hospital capacity and labour.
The Canada Health Act ("CHA")6 sets out the framework for funding Canada's publicly-funded health care system, called "Medicare," which covers medically necessary services, such as hospital and physician services, and in-hospital dental care. The CHA also establishes criteria that provinces and territories must follow in order to receive federal funding. In particular, the CHA prohibits extra-billing or user charges for publicly insured health services.7 The aim of the CHA is to ensure that all Canadians have reasonable access to insured health services, without direct charges at the point of service.
To coordinate with the federal funding framework, provinces and territories enact laws setting out provincial or territorial public health insurance plans, which are consistent with the criteria set out in the CHA.
In British Columbia (of particular relevance for the purposes of the discussion below), the Medicare Protection Act ("MPA") is the coordinating legislation.8 The MPA is designed to "preserve a publicly managed and fiscally sustainable health care system for British Columbia in which access to necessary medical care is based on need and not an individual's ability to pay", through British Columbia's public health insurance plan: the "Medical Services Plan" ("MSP").9 The MPA prohibits medical practitioners enrolled in MSP from privately billing patients for services beyond the rate paid by MSP and prevents the sale of private health insurance for services covered by MSP.10
The Cambie Case
The role of private health care in Canada has been a point of long standing discussion both in the public and in the courts. On July 15, 2022, the British Columbia Court of Appeal issued its reasons in Cambie Surgeries Corporation v. British Columbia (Attorney General), 2022 BCCA 245, dismissing the appeal and ruling against the expansion of private health care. This decision is the latest development in British Columbia in a long legal battle between the government and potential private healthcare providers over the future of Canadian health care.
At first instance, the plaintiffs, two clinics and a group of patients, argued that sections 14, 17, 18, and 45 of the MPA,11 are unconstitutional because they effectively prohibit patients in British Columbia from accessing necessary medical treatment through the private sector where the public system cannot provide timely care. Specifically, the plaintiffs argued that the impugned provisions violate sections 7 (life, liberty, and security of the person) and 15 (equality) of the Charter.
In September 2020, the British Columbia Supreme Court issued an 880-page ruling upholding the constitutionality of the impugned provisions, effectively prohibiting the expansion of private health care for medically necessary services in British Columbia.12 Importantly, the Court found that the evidence before it suggested a link between the availability of a parallel private system and longer wait times in the public health care system.13
On appeal, the plaintiffs/appellants alleged that the trial judge made errors of fact and law in his section 7 analysis.
Section 7 of the Charter provides that "everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice." Demonstrating a breach of section 7 is a two-step process: the claimant must show that (1) the impugned provisions interfere with or deprive patients of their life, liberty, and security of the person; and (2) the deprivation is not in accordance with the principles of fundamental justice. A breach of section 7 may be justified under section 1, which is intended to ensure that laws that infringe individual rights may, if they meet certain criteria, nonetheless be upheld when the needs of others-the common good-compels such a result.
Writing for the majority, Chief Justice Bauman and Justice Harris held that the impugned provisions do not breach section 7 of the Charter. However, they did find that the trial judge erred by concluding that the impugned provisions did not deprive patients of the right to life and security of the person. In particular, they found a deprivation of the right to life to the extent that the impugned provisions required patients with life-threatening conditions to wait beyond their medically determined benchmark, with no option to turn to private care. They applied similar reasoning to find a deprivation of the right to security of the person.
Nonetheless, they ultimately held that these deprivations were justified in accordance with the principles of fundamental justice. In particular, they held that the impugned provisions were not arbitrary, overbroad, or grossly disproportionate:
- Not arbitrary: suppressing the demand for the limited pool of medical practitioners by prohibiting private insurance is rationally connected to preserving the public system.
- Not overbroad: the impugned provisions are necessary to preserve a publicly-funded system delivering medically necessary care based on need and not ability to pay, and do not prohibit any conduct which bears no connection to that objective.
- Not disproportionate: the seriousness of the impugned provisions' impact on section 7 interests is not "totally out of sync with the objective of the measure," assessed qualitatively (rather than quantitatively).14
Chief Justice Bauman and Justice Harris recognized that the impugned provisions engage conflicting section 7 rights among individual patients of different economic means. But, they emphasized that, if the impugned provisions were struck, those who could not afford a private alternative would suffer the adverse consequences of the creation of a parallel private system based on the ability to pay.
Justice Fenlon, in concurring reasons, also held that the appeal should be dismissed. Unlike the majority, she found that the impugned provisions do deprive some patients of their rights to life and security of the person in a manner that does not accord with the principles of fundamental justice. Nonetheless, she found that this breach was justified pursuant to section 1 of the Charter, after applying the Oakes test:15
- the law must pursue an object that is sufficiently important to justify limiting a Charter right;
- the law must be rationally connected to the objective;
- the law must impair the right no more than is necessary to accomplish the objective; and
- the law must not have a disproportionately severe effect on the persons to whom it applies.
The first two questions of the Oakes test were not in dispute. In finding that the impugned provisions were minimally impairing, Justice Fenlon agreed with the trial judge that courts should defer to the legislative choice to suppress the emergence of a private health care system. Justice Fenlon also held that the overall effect of the impugned provisions was not disproportionately severe because of the extreme negative consequences of striking the impugned provisions and allowing private care, which "would cause those who could not avail themselves of private care-the most vulnerable in society-to wait even longer for care, thereby potentially increasing their risk of harm-beyond that we have found to exist under the current regime."16
The majority agreed with Justice Fenlon's section 1 analysis.
Looking ahead: British Columbia's New Health Workforce Strategy
The plaintiffs/appellants have filed an application for leave to appeal to the Supreme Court of Canada. If leave to appeal is granted, the determination of the Supreme Court of Canada could have far-reaching impacts on the future of Canadian health care, due to the complexity of the legislative and funding framework.
In parallel with these court proceedings, the significant concerns within Canada's health care system have ignited a broader discussion about reforms, including the role of private health care in Canada.17
Over July 11 and 12, 2022, Canada's premiers met to discuss the concerns facing Canada's healthcare system, calling for the federal government to increase funding of healthcare costs by about $28 billion annually.18 However, healthcare funding is only one of several factors required to recruit and retain the workforce necessary to sustain the healthcare system. In terms of the family physician shortage, fewer Canadian medical school graduates are choosing to practice family medicine after witnessing the unique challenges posed on family practices, including inadequate payment models and lack of administrative support, coupled with high demand.19 Furthermore, Canada currently imposes an expensive, lengthy, and complex process for licensing foreign-trained physicians, such that many are unable to practice in Canada despite completing all requisite re-credentialing exams.20 These examples are only one piece of the regulatory puzzle contributing to the current concerns.
In response, on September 29, 2022, the British Columbia Ministry of Health announced its 70-point Health Human Resources Strategy for addressing the concerns identified within British Columbia's healthcare system.21 This strategy includes, inter alia, adding 128 seats for undergraduate and postgraduate students at the University of British Columbia's Faculty of Medicine, working with Simon Fraser University to establish a second medical school in the province, and streamlining the process for recognizing credentials of foreign-trained healthcare workers. In terms of expanding access to care, the strategy also provides for expanding the scope of practice for pharmacists, paramedics, and first responders, as well as expanding sustainable and accessible virtual care and telehealth services.
As part of the implementation of the Health Human Resources Strategy, on October 31, 2022, the province of British Columbia, Doctors of B.C., and B.C. Family Doctors, announced a new payment model which will become available to full-service family doctors in British Columbia on February 1, 2023. One reason for the family doctor shortage in British Columbia is that family doctors in the province are undercompensated compared to those choosing to specialize or practice in hospitals, and those practicing family medicine in other provinces. Under the current fee-for-service model, on average, family physicians in British Columbia are paid $31 per patient visit for the first 50 patients of the day, which accounts for a 15-minute visit and excludes payment for many of the other tasks that the physician undertakes during this visit.22 Conversely, the new payment model takes into account factors including the time a doctor spends with a patient, the complexity of issues a patient is facing, and the administrative costs currently paid directly by family doctors.23 Accordingly, this new payment model combines positive aspects of multiple payment models to offer competitive pay to full-service family doctors in the province, with the goal of increasing and improving access to primary care in British Columbia.24
We will be closely monitoring developments as they arise.
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1. Dr. Katharine Smart, "Critical family physician shortage must be addressed: CMA" (9 May 2022), online: Canadian Medical Association (https://www.cma.ca/news-releases-and-statements/critical-family-physician-shortage-must-be-addressed-cma); Lucas Veiga, "CNA urges Canada's premiers to take immediate action and avoid the collapse of the health-care system" (7 July 2022), online: Canadian Nurses Association (https://www.cna-aiic.ca/en/blogs/cn-content/2022/07/07/cna-urges-canadas-premiers-to-take-immediate-actio).
2. Lucas Veiga, "CNA urges Canada's premiers to take immediate action and avoid the collapse of the health-care system" (7 July 2022), online: Canadian Nurses Association (https://www.cna-aiic.ca/en/blogs/cn-content/2022/07/07/cna-urges-canadas-premiers-to-take-immediate-actio).
3. Lucas Veiga, "CNA urges Canada's premiers to take immediate action and avoid the collapse of the health-care system" (7 July 2022), online: Canadian Nurses Association (https://www.cna-aiic.ca/en/blogs/cn-content/2022/07/07/cna-urges-canadas-premiers-to-take-immediate-actio); Penny Daflos, "Specialist doctors report 1 million BC patients on waitlists" (21 September 2021), oline: CTV News ( https://bc.ctvnews.ca/specialist-doctors-report-1-million-b-c-patients-on-waitlists-1.6078311); Teresa Wright, "Real disconnect': Provinces and feds point fingers as Canada's ER crisis continues" (27 September 2022), online: Global News (https://globalnews.ca/news/9156525/canada-emergency-rooms-provinces-federal-government/).
4. As set out in the Canada Health Act, RSC 1985, c C-6.
5. Some health care provision remains under federal purview, including health care for First Nations people living on reserves, serving members of the Canadian forces, inmates in federal penitentiaries, and some groups of refugee claimants, among others.
6.Canada Health Act, R.S.C. 1985, c. C-6.
7. Government of Canada, "Infographic: Canada Health Act", Government of Canada (https://www.canada.ca/en/public-health/services/publications/science-research-data/canada-health-act-infographic.html).
8. Medicare Protection Act, RSBC 1996, c 286 [MPA]
9. MPA, s 2.
10. MPA, ss. 17, 18, and 45.
11. Note that section 14 was not under dispute in the appeal, in which the plaintiffs/appellants focussed on sections 17, 18, and 45: see Cambie Surgeries Corporation v. British Columbia (Attorney General), 2022 BCCA 245 at para 2.
13. Cambie Surgeries Corporation v. British Columbia (Attorney General), 2020 BCSC 1310 at paras 2330-2331, as referenced in Cambie Surgeries Corporation v. British Columbia (Attorney General), 2022 BCCA 245 [Cambie BCCA] at para 129.
14. Cambie BCCA at para 320.
15. R. v. Oakes,  1 SCR 103.
16. Cambie BCCA at para 417.
17. Adam Miller & Benjamin Shingler, "Would more privatization in Canadian health care solve the current crisis?" (20 August 2022), online: CBC News (https://www.cbc.ca/news/health/canada-healthcare-privatization-debate-second-opinion-1.6554073); Saba Aziz & Jamie Mauracher, "'Dying on wait-lists': Could private health-care solve Canada's ER 'crisis'?" (6 September 2022), online: Global News (https://globalnews.ca/news/9099696/canada-private-health-care-options/); Benjamin Shingler & Leah Hendry, "Privatizing health care isn't the taboo it once was. But would it help Quebec's ailing system?" (21 September 2022), online: CBC News (https://www.cbc.ca/news/canada/montreal/quebec-private-health-care-caq-qs-1.6583776).
18. Peter Zimonjic, "Premiers gather in Victoria to present united demand for more health-care cash" (11 July 2022), online: CBC News (https://www.cbc.ca/news/politics/premiers-first-ministers-meeting-healthcare-1.6515070).
19. The College of Family Physicians of Canada, "Family doctor shortage in Canada" (5 May 2022), online: The College of Family Physicians of Canada (https://www.cfpc.ca/en/news-and-events/news-events/news-events/news-releases/2022/family-doctor-shortage-in-canada).
20. Christina Jung, "Foreign-trained doctors say they could help with BC's doctor shortage but face too many barriers" (20 July 2022), online: CBC News (https://www.cbc.ca/news/canada/british-columbia/foreign-trained-bc-doctors-1.6524095; https://www.cbc.ca/news/canada/nova-scotia/immigration-permanent-residency-health-care-doctors-1.6593463).
21. B.C.'s Health Human Resources Strategy: Putting People First, 29 September 2022, online (pdf): British Columbia Ministry of Health (https://news.gov.bc.ca/files/BCHealthHumanResourcesStrategy-Sept2022.pdf); Government of BC, "New health workforce strategy improves access to health care, puts people first", BC Government News (https://news.gov.bc.ca/releases/2022HLTH0059-001464).
22. BC Health Care Matters, "Reasons for Family Doctor Shortage in BC", online: BC Health Care Matters (https://bchealthcarematters.com/family-physician-shortage).
23. Government of BC, "B.C. health-care system strengthened by new payment model for doctors" (31 October 2022) BC Government News (B.C. health-care system strengthened by new payment model for doctors | BC Gov News).
24. Government of BC, "B.C. health-care system strengthened by new payment model for doctors" (31 October 2022) BC Government News (B.C. health-care system strengthened by new payment model for doctors | BC Gov News).
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