Canada’s public health-care system is a frequent flyer in the news of late. The Cambie decision (Cambie Surgeries Corporation v. British Columbia (Attorney General), 2022 BCCA 245) has added to the coverage, generating further discussion on what role private health care should play in Canada. Here we discuss the Cambie decision and the history of private health care in Canada.
The Cambie decision
The British Columbia Court of Appeal recently ruled on whether provisions of British Columbia’s Medicare Protection Act are unconstitutional because they prevent access to private medical treatment when the public system cannot provide timely necessary care. The provisions at issue prevent medical professionals enrolled in the province’s Medical Services Plan (MSP) from billing patients any amounts for services beyond MSP rates, creating a ban on extra-billing and prohibiting the sale of private insurance for services provided through MSP.
The appellants were Cambie Surgeries Corporation (a private surgical clinic in British Columbia), Specialist Referral Clinic (a medical clinic that provides expedited medical assessments) and a group of patients. Together they argued that the provisions breach patients’ rights to life, liberty and security of the person under s. 7 of the Charter.
The crux of the appellants’ argument was that the public system is broken and does not allow for timely access to quality care, and that the prevention of a duplicative private system by the impugned provisions unjustly prevents individuals from using their own resources to access health care.
The three-judge panel all agreed to dismiss the appeal, despite finding that the provisions do deprive some patients of the right to life and security of the person. The court found that patients might wait for care beyond benchmarks, which estimate at what point a patient presenting with a diagnosis may suffer negative consequences.
Chief Justice Robert James Bauman and Justice David C. Harris decided that the deprivation was in accordance with principles of fundamental justice and did not breach s. 7. Justice Lauri Ann Fenlon disagreed, concluding that the deprivations are grossly disproportionate as the “provisions’ effect of eliminating the availability of timely private care comes at too high a cost to the life and security of those individuals who cannot access timely care in the public system.” Justice Fenlon nonetheless concluded that the common good justified the infringements, because allowing for private care would cause those who cannot access private care to wait even longer and increase their risk of harm. The entire panel agreed that even if there was a breach, provisions could be justified under s. 1.
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