Think two-tiered heath care will fix medicare's problems?

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The following editorial by Dr. Monika Dutt was published on November 15, 2016 on CBC.ca 

Think two-tiered heath care will fix medicare's problems? Think again
When Australia introduced a parallel private-pay system wait times got longer, not shorter

Most Canadians might be surprised to learn that major decisions about how our health care system will operate in the future could be decided by our courts — and not by our democratically elected parliamentarians. But that's exactly what is happening in British Columbia right now.

A Charter challenge is underway at the Supreme Court of B.C., championed by Dr. Brian Day, owner of the Cambie Surgical Centre. Day is arguing that the laws prohibiting doctors in Canada from practicing in the public and private health sectors simultaneously should be struck down, along with the prohibition on the extra billing of patients for services already covered by the provincial health plan.

From Day's perspective, such restrictions prohibit patients from seeking the best care possible, thereby violating the Charter of Rights and Freedoms. But critics argue the case is more about doctors' potential to earn more money than patient choice or quality care.

Right now, we have a single tier of publicly funded health care (with a limited private sector covering certain non-insured services).

If Day succeeds with his challenge, those who are financially able will have access to an "upper" tier of health services too — one where doctors charge whatever they want. Those who lack funds will only have access to the "lower" public tier, where doctors adhere to a provincially mandated fee schedule, much as it is today.

What's wrong with such a two-tier system? Evidence from other countries demonstrates it too often benefits only those who can afford to pay, and it makes the publicly-funded system more expensive and less efficient.

Day and his lawyers argue such a two-tier health system is the solution to medicare's problems. They assert that the creation of parallel private payments will alleviate resource strain on the public tier, ultimately leading to shorter wait times for all Canadians, regardless of which level of care they access.

Unfortunately, it's not that simple. Australia had a publicly funded health care system like Canada's before introducing a parallel private-pay system in 1999. As a result, wait times in the public pay system became longer, not shorter. Turns out, many specialists spend more time in the private pay system than in the public, "cherry-picking" the healthiest, wealthiest and most profitable patients. That leaves the cases and patients that are most complex, vulnerable, sick and costly for the public system to handle.

​European models

The second major argument being waged by Day in his Charter challenge involves a more general claim regarding the viability and desirability of European health care models.

Switzerland has the second-most expensive system in the world, right behind the U.S. Private insurance is mandatory. Out-of-pocket payments are exceptionally high, with low- and middle-income families contributing more to the financing of the system than families in high-income brackets.

The French have a private/public hybrid system, but their private insurance only helps cover the extra billing that was introduced to add more money to the system. They also have some of the greatest financial and geographical inequities in access to health care in Europe.

The German health care system is also a public/private mix, but patients have to choose one or the other. Germans with public health insurance — about 90 per cent of the population — wait three times longer for some care than those with private insurance. More importantly, the private insurance sold in Germany is for those wealthy enough to leave the public system entirely. They can never come back, no matter how expensive their care becomes.

Some believe the UK's National Health Service (NHS) is a comparable system to Canada's. It's not. NHS doctors are salaried employees of the government who must work a 40-hour work week with additional evening and weekend call hours before they are allowed to see private-pay patients on top of their public practice.

Look to Canada

So if Europe doesn't offer an obvious solution to improving Canadian health system performance, where should we turn? Canada has some good home-grown evidence:

 

These models depend on changing how we deliver care and are about improving quality of care. Our legislators, policy-makers and health practitioners together could help make such Canadian "best practices" a reality across the country.

Let's not pretend the Day case is about patient choice or "superior" foreign health care systems. We can innovate within Canada's existing approach to patient care in a way that benefits everyone — not just the wealthy.


Rupinder Brar, Adam Lynes-Ford speech to HEU

The Hospital Employees' Union -- the oldest health care union in British Columbia, representing 46,000 members -- invited CDM board member Dr. Rupinder Brar and our colleague Adam Lynes-Ford from the BC Health Coalition to speak at their annual convention about the Cambie Trial. We are grateful for the support of the HEU. Their members, who are often on the frontlines of patient care, understand the danger of Brian Day's legal challenge to dismantle Medicare.

The text of their speech follows.

Rupinder

I want to begin today by telling you a short story about one of my patients. I’ve changed names and some details to protect their privacy. This time last year, I joined a practice in Vancouver.

I saw a young woman who was pregnant with her first child – and although the pregnancy was unexpected my patient was overjoyed and felt her pregnancy was a blessing. This women had beaten all odds to be where she was – she had a history of a very traumatic childhood, which included numerous foster homes. She lost both her biological parents at a young age. She was coping with life but didn’t have stable housing among other things.

Once she found out she was pregnant she spent all her time finding work and suitable housing. And she succeeded. By the time she was seven-months pregnant, she was in recovery and living in a nice apartment in the heart of Vancouver. She told me she was determined to be there for her baby– unlike what she experienced growing up.

When her beautiful baby was born it was an uneventful delivery. She named her Jasmine.

But two days later Jasmine became very sick. After an extensive workup it was found the baby had suffered multiple strokes in a short period of time and had meningitis; her prognosis was not good.

Amazingly, the baby fought through -- just like her mother had.

Fast forward and here I was seeing mom and baby on their two-month well child visit. Jasmine was meeting all the expected milestones. She required up to three appointments a week, which her mother never missed -- from neurology, OT, cardiology and various other services. Everytime she leaves BC Children’s Hospital my patient is amazed by the care she received and always expresses her gratitude.

This beautiful child will require ongoing care with a multi-disciplinary team. She has been given the best chance possible because she was born in Canada. This is because we have a universal health care system that treats everyone based on need and not their ability to pay.

Thanks to Medicare, my patient can focus on the hard work of keeping housing, a job, and parenting her child without the worry, financial strain, and serious health risks that she would face if we did not have a universal system.

As a health care provider early in my career, I always imagined that Medicare would be the system -- with improvements of course -- that I would care for people within for the rest of my life. I’m here today with Adam because the system that my patient and her baby rely on, the system that you and your families rely on, is in serious danger.

That danger is the Cambie Surgeries lawsuit: the biggest, best funded legal attack against medicare in this country’s history. The case is at trial right now at BC Supreme Court, and both of our organizations are participating as intervenors. It started this September and will go until at least May next year.

The person behind this lawsuit is Dr. Brian Day. Some of you may have heard of him.

He’s the guy the media has dubbed “Dr. Profit” and the “Darth Vader” of health care, with good reason.

Brian Day owns two for-profit clinics in Vancouver. He has been the loudest cheerleader for privatizing health care in Canada for many years.

Day is also the one who says he is not insulted by being compared to Darth Vader because -- according to Dr. Day -- Darth Vader was actually a good guy... Along with rooting for the wrong side in the Star Wars battle, Brian Day is eager to be on the wrong side of health care history.

The goal of his lawsuit is to end universal Canadian public health care as we know it and replace it with American-style, two-tier health care.

Let’s be clear -- this is not just another incremental measure of privatization. Brian Day's legal challenge is an attack on the foundation of Medicare.

This lawsuit strikes at the Canadian principle that says access to health care should be based on need not our ability to pay.

Brian Day is arguing that this principle violates Canada’s Charter of Rights and Freedoms. Specifically, he is asking the court to change our health care laws in two fundamental ways.

Number one: He wants the court to allow all doctors to charge patients unlimited amounts for all procedures and services,  from routine check-ups to hip surgeries.

How would this be different from the way things work now?

Well, let’s say Adam came to me for some stitches on his arm which is covered by MSP. Under our current laws, there is a fee limit for that service and it is illegal for me to charge above that limit. I can then either bill MSP that amount or charge Adam and he can be reimbursed. This ensures that what we do as doctors is about evidence and the patient’s needs -- not our personal profit. And it ensures that Adam’s ability to get care doesn’t depend on whether he can afford my fees or not.

But Brian Day wants to change that.

The second thing Brian Day wants the courts to do is to allow parallel private health insurance. This would also represent a massive change to our system.

It would put private insurance companies in the position to deny patients coverage for medically necessary services like visits to the emergency room or cancer treatment.

Adam

If Brian Day succeeded in changing these laws, it would have a huge impact on Canadian life.

Under a two-tier system we would face longer wait times, poorer health, and skyrocketing health care costs, and not just for those of us in B.C.

As Rupi mentioned, the case is at trial right now in BC Supreme Court, but it has the potential to affect all provinces and territories because the case is almost certain to reach the Supreme Court of Canada where the decision will impact the entire country.

We already know that wait times for some services are a problem in BC and in other provinces. A two-tier system would only make this worse because health care professionals are a finite resource. When workers leave the public tier to treat patients in the private tier, that means fewer people left to care for patients in the public side. As a result, waits get longer for the majority of the population.

That is exactly what happened in Australia when they moved from a single-tier public system to two tiers. In the areas of the country that had more privately funded care, waits in the public system became longer. What’s worse, a privately funded tier provides incentive to make waits in the public longer.

A colleague from Canadian Doctors for Medicare told me that that there’s even a term for this in New Zealand; surgeons talk about “farming” in their practices. What they mean by that is the surgeons till the soil by keeping their public wait times long and then harvest the benefits of high-paying patients in their private practice.

Ironically, Brian Day claims that a two-tier system would shorten wait times in Canada. And in fact, he claims this is the goal of his case all together. But it’s clear that if long wait times is truly the illness that Brian Day wants to treat, his cure would be much worse than the disease.

In additional to longer waits, we’d also face higher costs, and a growing gap between those who can afford care and those who can’t. This really bothers me when I think about the growing income inequality that already exists in our country.

As Rupi mentioned earlier, health policy experts say that if we were to introduce a two-tier system in Canada, we’d end up with a system that closely resembles the US. One reason is that we share the longest and most open border in the world with the United States.

Right now, we have an exemption for health care under the North American Free Trade Agreement; however, if we eliminate our current medicare system, we would likely lose that exemption and our our health care “market” would be opened up to US health care giants.

In that sense, we wouldn’t just get American-style health care, we’d have an actual American health care system.

We only need to look to our neighbours to the south to see how well a two-tier system like this working. So many Americans are struggling with health care debt. In fact, it’s the number one reason individuals declare bankruptcy in the States.

Then there are the problems with insurance companies. A recent study found that health insurers (in states where they could access this data) deny between 11 and 24 per cent of all insurance claims. Eleven to 24 per cent of all claims are denied.

Some of these statistics really came to life for me when the trial began in September when people began phoning the BCHC office to share their stories. Many used to live in the US, that they had heard about the Cambie case, and they were really worried about what it could mean for them.

One woman told us that when she lived in the States and was pregnant with her first child, she started having serious bleeding. She knew that this meant that her baby’s life, and her life, could be at risk.

She went to one hospital but she was turned away because she had no health coverage. She went to another hospital -- they said no. Then another and another.

Finally, she found one that would admit her but only if she signed an agreement saying she would pay back the $10,000 cost of her visit. She was at college at the time and had to apply for social assistance to pay down the debt.

Then she told the story of her second child. Her husband has lost his health coverage through his job and the cost of a birth in the US starts at $16,000. So they went with a midwife because it was cheaper and put all the costs on a credit card.

But the story she most wanted to tell us was a recent one that happened here in BC where she and her family now live. 

Her nine-month old child was diagnosed with pneumonia while they are on vacation in Nanaimo. She said his health crashed really fast. They rushed to the hospital right away and they were able to get him stabilized. That’s the way the system should work, she told us.

She said, "If I was in the US I might have waited one more night before going to the hospital...and he might not have made it one more night..."

And then she told us  that she went to her car outside the hospital in Nanaimo and thought about that and just cried.

It’s so clear that a win for Brian Day would be a loss for Canadians.

Not only would it be a massive setback for everyone but the very wealthy, it would be disastrous for the labour movement. If we lose Medicare, thousands of union members who work in health care will be under an even bigger threat from increased privatization, which you know plenty about.

And all unions will be forced to bargain for the kind of comprehensive private medical insurance that workers in the US require. The cost of an “average” insurance plan in the US is about $16,000 per year for a family of four. And for all of us as public health care advocates, we’d face a grim future for our chances of winning a universal system back.

So if this case isn’t really about improving the system and shortening wait times, what is it about?

This case is about profit. Period. All you need to do it look at what led to this litigation, and that becomes very clear.

For years, patients have been complaining about being charged over the legal amount for services at Brian Day’s clinics.

In 2009 the province finally responded by notified several private clinics that they would be audited, including Brian Day’s Cambie Surgeries and Specialist Referral Centres. Now you’d expect a reasonable business person with nothing to hide would have opened their doors to a government audit. 

Instead, Brian Day responded by launching a lawsuit against the health care laws patients were accusing his clinics of breaking. And he fought all the way up to the BC Court of Appeal to try to stop the province from auditing his clinics.

After four years of fighting to get access to Cambie, the province released an audit report in 2012. What do you think they had to hide?

Well, the clinics made it very difficult to get information, but government was able to look at records from a period of about 30 days and  found many instances where patients were billed above the legal amount at the clinics. By many, I mean over 200 times in just one month where the clinic charged patients more than the legal amount. Sometimes up to six times the legal amount.

That extra-billing added up to just under a half a million dollars. In a month.

That wasn’t all. Auditors also found that sometimes the clinic billed the patients, but also billed the province, essentially double-dipping for the same service. These cases of “overlapping billing” added up to another $66,000 in revenue.

To top it off, they were requiring patients to sign forms promising they wouldn’t tell.

The audit makes clear Day’s clinics are charging vulnerable patients illegal sums of money. When the audit was released came out, the clinics didn’t pay the patients back, instead they have just doubled down on attacking health care law. And if Brian Day gets his way in court, he and many others will continue to take charge whatever they like with impunity.

Rupinder

This is why this attack on public health cannot go unanswered.

The BC Health Coalition and Canadian Doctors for Medicare are fighting the case in the trial as intervenors along with two individual patients and two individual doctors. One of the people in our intervenor group is Tom McGregor.

Tom lives here in Vancouver. Among the many ways he gives to his community, Tom volunteers as an advocate as his local church and advises Translink on how to best serve people with disabilities. He also has limb-girdle disease, a muscle wasting condition that affects the hips and shoulders.

If Canada had a private insurance system like the system that Day is proposing, Tom expects he would be uninsurable. He’s probably right. It is not profitable for insurance companies to cover people with pre-existing conditions and who regularly need health care -- like Tom. And probably like at least one close friend or family member in all of your lives. 

Like many Canadians, he would likely not be able to afford private insurance if he was insurable.

Our group is going to fight this case with Tom and on behalf of all of us who rely on a universal system to be there for us when we need it. Our group won the right to bring key expert evidence before the courts and we are working with a great team of lawyers.

But we can’t stop there.

We all know that although judges decide cases, major court cases like this are won and lost in the court of public opinion. Brian Day and for-profit advocates are trying to use this case to try to persuade the public that privatization is the solution to challenges in our system.

They’ve run radio and TV ads across the country and packed national newspapers with op eds. 

They have more money than us. But we have the vast majority of Canadians on our side.

In order to win in the court of public opinion, we need all hands on deck...

We’d like to thank HEU for it’s financial support and strong campaign support which were a big part of getting us this far. You are incredible allies.

You know, I got into medicine because I care about people. They come to me because they need help, and I feel honoured to be given their trust to care for them.

I can’t even imagine having to tell someone they can’t get care because they don’t have their private insurance provider won’t cover what they need, or to see people like baby Jasmine’s mom have to decide between housing and paying for her babies care.

The people won the fight to get medicare in the first place. We can win the fight to keep it. Our organizations are grateful to be working alongside allies like you to do just that.

Let’s win this case and get on with our work of strengthening a system that reflects our values, one that we can be proud of as an expression of how we care for one another.

The public-private insurance mix in European countries

The crux of Dr. Day’s case is he would like to bill the government for the amounts on the fee schedule, and then bill the patient or the private insurer. In his interviews, Dr. Day infers this will be like European private/public hybrid health care delivery systems, usually pointing to France, Germany and Switzerland.

There is no singular European health care system; each nation has its own. Thus, he is comparing apples to oranges, pineapple, bananas and kumquats.

The World Health Organization's European Observatory on Health Systems and Policies publishes health system review reports about each nation. 

Switzerland

Switzerland has most expensive system in the world, right behind the USA, because of the private insurance. A major part of the Swiss economy is insurance companies, for everything. Private health insurance is mandatory, but all private insurers must sell the exact same basic benefit package, for the exact same price. By law, there is no competition on the price of basic insurance. Instead, they can only compete on the supplemental insurance they also sell. In that sense, for basic insurance, they are a multi-payer system that functions as a single payer system.

That's not the kind of private insurance Day wants.

France

The private health insurance sold in France is specifically to cover the costs of the co-payment they introduced. It's insurance to cover the cost of the per-visit user fee France introduced, which people couldn't afford, so they then introduced private insurance to cover that fee. That's not the kind of private insurance Day wants.

Germany

The private insurance sold in Germany is for those wealthy enough to leave the public system entirely. But once they leave, they can never come back, no matter how expensive their care becomes. It's a one-way door. How many Canadians would want to leave the Canadian health care system entirely.

That's not the kind of private insurance Day wants.

 

Opening Statement of the Coalition Intervenors

Our legal team presented the Coalition Intervenors (of which we are one) opening arguments today for the Cambie Case. The full text of the statement is below.

OPENING STATEMENT OF THE COALITION INTERVENORS

1. This is the opening statement of the intervenors Dr. Duncan Etches, Dr. Robert Woollard, Glyn Townson, Thomas McGregor, the British Columbia Friends of Medicare Society, and Canadian Doctors for Medicare. We shall refer to this coalition of intervenors as the BC Physicians and Patients Coalition, or the Coalition Intervenors.

2. Over the next 30 minutes, I will describe:

a. the individuals and organizations we represent;

b. the evidence that we intend to contribute to this litigation and how that evidence fits into the larger case; and

c. the important context or lens through which we ask this Court to consider and assess the evidence and arguments in this case.

A. WHO WE ARE

3. The intervenors we represent are four individuals – two patients and two physicians – and two organizations ‑ the BC Friends of Medicare Society and Canadian Doctors for Medicare. Our clients include some of the most vulnerable beneficiaries of BC’s universal public health care system, who stand to lose the most in this case, if the fundamental and core principle that every British Columbian should have equal access to physician and hospital services is undermined. Our clients also include physician providers of health care committed to the principles of universality and equal access, who would shoulder the damaging consequences if our publicly‑funded single payor Medicare system is weakened.

4. Glyn Townson is the past Chair of the Positive Living Society of British Columbia, a collective of people living with AIDS and HIV. Mr. Townson has also himself been diagnosed with AIDS and has many concurrent health problems. Mr. Townson is a frequent user of the BC public health care system. With an annual income of $20,000, he is even more reliant than healthier individuals on the public health care system, to cover the cost of his essential and critical medical needs (both primary care and specialist), and in order to receive equal access to quality health services.[1]

5. Thomas McGregor was the Co‑Director of Advocacy for the BC Coalition of People with Disabilities until 2002 when he had to resign for health reasons. Mr. McGregor suffers from Limb‑Girdle Muscular Dystrophy. As a result he uses the public health care system frequently and is more reliant than healthier individuals on the system to cover the cost of his medical needs. His approximate annual income is $15,000, primarily from Canada Disability Pension.[2] Mr. Townson and Mr. McGregor represent the most vulnerable beneficiaries of BC’s health care system that the plaintiffs are asking this court to fundamentally change. Mr. Townson and Mr. McGregor would be disproportionately burdened by any weakening of the publicly funded health care system that would likely result from the development of a parallel private tier, since they are dependent upon the public system for their life and health. We do not expect the evidence to establish that people like Mr. Townson or Mr. McGregor ‑ or for that matter the majority of ordinary British Columbians ‑ would ever be able to afford the added burden of private insurance. Even if they could overcome these financial obstacles, their health status would likely be a barrier to any private insurance, as insurance providers – especially profit‑driven insurers ‑ will not insure individuals with disabilities or pre‑existing conditions, or will exclude from coverage the very disabilities or pre‑existing conditions most likely to require medical care. As a result, while they are not the main parties in this litigation, it is essential that their voices be heard.

6. We also represent two physicians. First, Dr. Duncan Etches, a practicing physician and Clinical Professor in the Department of Family Practice in the Faculty of Medicine at the University of British Columbia. Dr Etches is the medical director of South Granville Park Lodge, Dogwood Lodge and False Creek Residence, the chair of the board of Chalmers Lodge, and the District 3 representative for the College of Physicians and Surgeons. He is a former Director of the BC Women’s Hospital Family Practice Centre, and former District 3 representative to the Board of the British Columbia Medical Association (now Doctors of BC) Second, the Coalition Intervenors include Dr. Robert Woollard, who has practised medicine in the province for over 40 years and has been actively involved in teaching medicine since 1974. Dr. Woollard has been a tenured, full professor at the Faculty of Medicine at the University of British Columbia since 1995, and served as the Royal Canadian Legion Professor and Head of the Department of Family Practice there from 1998 to 2008.[3]

7. Dr. Woollard is also the Vice‑Chair of Canadian Doctors for Medicare (“CDM”).[4] CDM is one of the organizations of this intervening coalition. CDM represents doctors across Canada committed to preserving, strengthening and improving Canada’s universal and publicly‑funded health care system for the benefit of all Canadians.[5] Its physician members collectively reflect the interests and concerns of physicians like Dr. Etches and Dr. Woollard.

8. Dr. Etches, Dr. Woollard and the physician members of CDM all support the preservation of a universal and single payor publicly funded health care system in Canada. They are critically concerned that if the protections the plaintiffs’ challenge are struck down, the resulting for‑profit and parallel private system of health care would severely impact the ability of members of the medical profession to provide the very best care to patients according to need, not ability to pay.[6]

9. The last Coalition Intervenor, the British Columbia Friends of Medicare Society, known as the BC Health Coalition (“BCHC”) is a network of organizations and individuals from across British Columbia dedicated to the preservation and improvement of Medicare. The BCHC, which was founded in 1995, encompasses over 50 member organizations representing seniors, women, people with disabilities, anti‑poverty activists, health care providers, patients, members of faith‑based organizations and labour unions.[7] Many of their members would face insurmountable health and income barriers to accessing the kind of privately financed health care system the plaintiffs seek to impose. They are very concerned that the shift to a parallel for‑profit private system would reduce resources and capacity in the public health care system to provide for patients, would establish harmful incentives for longer wait times in the public system, and would make it even more difficult to implement the necessary reforms we need to improve the public system. Despite the plaintiffs’ claims to the contrary, we expect that you will hear considerable evidence to support the validity and strength of these concerns.

10. In short, the Coalition Intervenors are here to advocate for all of those British Columbians who rely on the public system, and whose right to equitable access to health care without regard to financial means or ability to pay ‑ the very object of the legislation being attacked – would be undermined if the plaintiffs were to succeed. Indeed, one of the most important considerations we will be urging your Lordship to maintain top of mind throughout these proceedings is the adverse impact on the s. 7 and s. 15 interests of ordinary British Columbians whose health depends on retaining the longstanding protections that the plaintiffs seek to eliminate.

B. OUR EVIDENCE

11. Pursuant to the Order of this Court dated May 21, 2014, the Coalition Intervenors have tendered the evidence of two experts in this proceeding – Professor Marie‑Claude Prémont, and Dr. David Himmelstein – each of whom has prepared an expert report that will be tendered at this trial. Briefly, their evidence will be the following.

12. Professor Prémont is a professor at the Ecole nationale d’administration publique in Montreal, before which she was a member of the Faculty of Law of McGill University. Her expertise in health law focuses on healthcare organization, delivery and financing. She has published extensively on the implications of the Chaoulli decision in Quebec.[8]

13. In her evidence, Professor Prémont explains how the protections being challenged in this case represent the three core regulatory measures used by provinces to achieve the objectives underlying the Canada Health Act[9] – these measures are (i) the prohibition of duplicative private insurance, (ii) the prohibition of dual practice or co‑mingling of physicians in the public and private spheres, and (iii) the capping of private medical fees to the level of public fees. Each of these measures forms part of a regulatory framework designed to enhance the sustainability of public healthcare and ensure that public financing of healthcare is directed to the equitable delivery of care. The policy objectives of these measures include preventing the diversion of public healthcare resources to a private market catering to a privileged niche, and which would in turn pose various threats to sustainability of the public system, and to the health and well‑being of all who depend on it.

14. Of course, as Professor Prémont will note, the Chaoulli case was narrower, in that it challenged only one of the three core regulatory measures used by provinces – the prohibition on duplicative insurance. This case challenges all three, and if successful, would mean that none of the core protections necessary to preserve and strengthen our public health care system would continue or be constitutionally permitted.

15. The second expert witness tendered by the Coalition Intervenors is Dr. David Himmelstein, a professor of health policy and management at the City University of New York School of Public health and a lecturer in medicine at Harvard Medical School. Dr. Himmelstein has published extensive empirical research in highly respected peer reviewed journals on health care policy and finance, with a particular focus on comparative analyses of the U.S. and Canadian health care systems.

16. Dr. Himmelstein explains the fundamental flaws in the Plaintiffs’ suggestion that striking down the protections of the Medicare Protection Act would open the way to a healthcare system similar to those operating in several European countries, where public and private payment systems operate in parallel. For a number of economic and historical reasons that Dr. Himmelstein explains, striking down these protections would be more likely to result in a U.S.‑like healthcare system, with large public insurance programs (Medicare and Medicaid) covering the portion of the population that is unprofitable or ineligible for private insurance, and private insurers selling to more profitable portions. Dr. Himmelstein surveys the various systemic problems in the U.S.‑style multi‑payer system, that are largely avoided as a result of the challenged protections ‑ and to which British Columbia would become exposed should the impugned provisions be struck down, especially given the implications, which the Court will hear about, of Canada’s trade agreement, including the North American Free Trade Agreement (“NAFTA”).

17. Dr. Himmelstein’s evidence is that if the plaintiffs were successful, this would result in (i) greatly amplified inequalities in access to care, (ii) an acceleration of health care cost increases, (iii) a very great increase in health care administrative costs, and (iv) compromised quality of care overall.

C. CONTEXT FOR EVIDENCE

18. It is axiomatic that context is critical in Charter adjudication.[10] This is true in interpreting the scope of constitutional rights at issue, but also in determining the purposes of legislation, its impact, and in any s. 1 analysis.

19. The broader context of this case is distinctly different from most leading cases decided under s. 7 – for example, Bedford,[11] Carter,[12] and Morgentaler[13] – which arose in the criminal context where the state uses the blunt tool of the criminal law to punish individuals with criminal sanctions as a result of prohibited conduct.

20. In the case at bar, by contrast, the challenged protections comprise the central tenets of a complex socio‑economic benefit and protective regulatory scheme. These protections operate individually and in tandem with the rest of the scheme to deliver British Columbia’s most comprehensive social benefit – a universal, sustainable and publicly funded health care system available to all British Columbians on equal terms and conditions. This legislation is intended to protect the right to life and security of the person of all British Columbians, including the vulnerable and silent rights‑holders whose equal access to quality health care depends upon the challenged protections.

21. As Justice Cory noted in Wholesale Travel Group Inc.:

This Court has on several occasions observed that the Charter is not an instrument to be used by the well positioned to roll back legislative protections enacted on behalf of the vulnerable.

It would be unfortunate indeed if the Charter were used as a weapon to attack measures intended to protect the disadvantaged and comparatively powerless members of society....

The importance of the vulnerability concept as a component of the contextual approach... should apply whenever regulatory legislation is subject to Charter challenge.[14]

22. Justice Cory’s caution applies with full force to this case.

23. As you know from last week’s opening statement from the plaintiffs, they assert that the plaintiffs’ s. 7 rights were infringed as a result of the restriction of the ability of enrolled physicians to operate simultaneously in the public system and outside of it, and restrictions on the right of physicians to bill patients or private insurance companies in excess of the amounts paid by the public system for any work they perform.

24. However, the plaintiffs’ argument ignores the extent to which the restrictions the plaintiffs’ challenge have as their objective to protect equitable access to health care and to prevent harm to the public system by limiting the extent of a private market. As Justice Binnie observed for three of the six judges who reached the Charter issue in Chaoulli:

[174] Not all Canadian provinces prohibit private health insurance, but all of them (with the arguable exception of Newfoundland) take steps to protect the public health system by discouraging the private sector, whether by prohibiting private insurance... or by prohibiting doctors who opt out of the public sector, from billing their private patients more than the public sector tariff, thereby dulling the incentive to opt out... or eliminating any form of cross‑subsidy from the public to the private sector... The mixture of deterrents differs from province to province, but the underlying policies flow from the Canada Health Act and are the same: i.e., as a matter of principle, health care should be based on need, not wealth, and as a matter of practicality the provinces judge that growth of the private sector will undermine the strength of the public sector and its ability to achieve the objectives of the Canada Health Act.[15]

25. From the perspective of the Coalition Intervenors, what the plaintiffs seek flies in the face of what have been the historic and underlying objectives and rationale of the British Columbia and other Canadian medicare health insurance programs since their very outset, namely, access to medical care for all based on the same uniform financial terms and conditions, that is, regardless of ability or willingness to pay.

26. Indeed, as Justice Slatter more recently recognized in the Alberta Court of Appeal’s 2015 decision in Allen v. Alberta:

[16] A key aspect of the Canadian health care system is its universality, which has two main components:

a) Economic Universality. Because basic health care is publicly funded, all Canadians have equal access to it. There are no distinctions to access based on means, wealth or social status.

b) Risk Universality. All Canadians are entitled to access the public health system without proving “insurability”. Even those who are frail, elderly, or sick, or who have genetic or other vulnerabilities to particular illnesses, are covered. No Canadian is denied coverage, or expected to contribute more to health care costs, based on his or her medical profile.[16]

27. As you will hear as the evidence unfolds, departure from these objectives would undermine the equality of British Columbia residents, undermine the efficiency, accessibility and affordability of the public health care system and weaken the public health care system that remains. If the plaintiffs are successful, the very people the Legislature seeks to protect with the Medicare Protection Act[17] – those who either would not qualify for or who could not afford to avail themselves of “private options” – would be harmed. They are the people who will be most at risk if the public system is weakened as a result of doctors and other health care providers leaving for a more profitable private market tier.

28. The plaintiffs say that they will establish on the evidence that the public system is not operating at full capacity when it comes to certain surgical procedures, that the provincial government is not prepared to provide the funding needed to operate at full capacity, and therefore that there will be no harm to the public system if Dr. Day and his associates were permitted to engage in dual practice and be paid more through private insurance. Apparently, they have envisaged a scheme in which a mechanism is developed which would ensure that physicians work outside the public system only where there is no work for them to do in the public system. Apart from the dubious and unlikely workability and capacity to monitor and enforce such a commitment, what the plaintiffs fail to recognize, is that, whether or not there is unused surgical capacity in the public system, the harms that the restrictions on dual practice, private insurance and extra‑billing are aimed at will still occur. As we expect the evidence will show, these restrictions protect patients, and the public health care system, in at least nine ways:

a. They protect patients from having their ability to pay determine their access to medical and hospital care (including in some cases the risk of financial ruin and bankruptcy), since this would undermine the core public policy and legislative objective of equal access, and the basic principle that the costs of medically necessary health care should be borne by society at large, rather than by relying on or permitting individuals to pay out of pocket directly or through private insurance. In this respect, Senator Kirby, in the same 2006 article on which the plaintiffs rely in their opening statement, acknowledges this as a valid criticism of permitting a parallel private health insurance system, noting that there is “one criticism made of the private option that is widely shared by most Canadians, including members of the Senate committee. This is that it is unfair to allow people to buy their way to the head of the queue for medically necessary services. I agree that this is a valid criticism of the system.”

b. They protect patients from the additional risk that they will not be eligible to be insured privately on the same terms as others because of their pre‑existing adverse health status. For example, private insurers are generally unwilling to cover pre‑existing medical conditions. They also protect employers from having to bear the cost of private health insurance for their employees, which makes them more competitive in the global marketplace, and protect workers from the job lock they would experience if they needed to remain with an employer because they were afraid to lose private health insurance.

c. They protect patients from the risk of self‑interest or greed among those in the medical profession who are not satisfied with the reasonable compensation provided under the Medicare Protection Act, and so would charge patients extra for receiving medical care if they were allowed to do so.

d. More generally, as the evidence will show, the measures protect all patients from the risk that if private insurance, extra‑billing and dual practice were allowed, the public system would be worse off. Despite the plaintiffs’ claim to the contrary, the very real risk of sapping critical health care human and other resources from the public health care system – a public health care system which is not only comprised of surgeons, but which also includes anesthesiologists, anesthesia assistants, physician surgical assistants, nurses, medical imaging and lab technologists, respiratory therapists, health care aides, administrators and many others. All of these people are needed to run a quality public health care system – and at least some of them would be incentivized to work in a more lucrative private market for health care instead of in the public system.

e. As well, this Court will hear evidence that the measures protect patients from the perverse and destructive incentive for doctors to keep waits in the public system longer, an incentive that would exist if dual practice, extra‑billing and private insurance were permitted. This is because under the system the plaintiffs propose, physicians could earn more income by siphoning patients into their private practices – in other words, no matter what the capacity of the public system, they would have an incentive to create a greater demand for private care, including by keeping their public waits longer.

f. The restrictions at issue also protect patients from physical harm. This Court will hear evidence that when surgical care is provided by private for‑profit clinics, medical decision‑making ‑ especially for elective surgery ‑ can, as a result of the conflict of interest arising from being paid more in the private system than in the public system, lead to inappropriate surgical intervention, i.e. surgeries that do not provide a health benefit to the patient, that are risky or that result in deterioration in a patient’s health status.

g. They also protect the public health care system from a phenomenon this Court will hear about which is known as “cream‑skimming”, where physicians in a private health care system prefer healthier patients and simpler, lower cost surgeries in order to increase their profit margin. This in turn risks undermining the public system as the efficiencies and cost savings that derive from simpler, more predictable surgeries become profits for private clinics rather than savings captured and used by the public system to mitigate the costs of more expensive and complex patient care. Again, this harm arises regardless of whether or not there is unused capacity in the public system.

h. The legislative protections are also intended to advance the objective of most effectively and efficiently deploying overall health care spending, thus protecting society from waste of scarce resources. This Court will hear evidence that marshaling the resources devoted to medical and hospital services through the public system is intended to avoid the substantially higher administrative costs and profit margins inherent in a market for private health care insurance.

i. Finally, the measures protect the public system from falling into disrepair as a result of the loss of social solidarity if a portion of the population who can afford to do so were permitted to exit the system. The measures ensure that those individuals who could otherwise opt out of the public system (because they could afford private health care) have the same stake as everyone else in supporting sufficient funding for and ongoing improvements in the public health care system.

29. It is true, as the plaintiffs have pointed out, that the legislation permits doctors to un‑enroll altogether from the public system and to operate entirely outside of the public system. This right to disengage entirely has been a feature of our health care system since the birth of medicare in Saskatchewan. But under our health care system, this is only permitted if physicians and their patients are not using or being subsidized by public resources, including public payment for physician services, and use and reliance on public hospitals, publicly funded diagnostics and public community care facilities. In other words, the legislation permits a limited right for physicians to un‑enroll, but stops at the point of permitting the public subsidization of inequitable access to care, and increasing the risk of resulting harm to the public system.

30. Notably, early on in the first day of their opening last week, the plaintiffs recognized that a deliberate objective of the legislative protections under challenge is as the Coalition Intervenors contend: namely, to prevent the emergence of a private market in health care. As plaintiffs’ counsel put it in his opening submissions at paragraph 43, “that is not an accidental byproduct of the Act,” but rather “it is the intention of the Act.” We agree. For the reasons we have discussed, and on the basis of the historical record and evidence this Court will hear, the objective of the challenged protections – the prohibitions against extra‑billing, against dual practice, and against duplicative private health insurance – include at their core discouraging and preventing the growth of a market in private health insurance and private health care, and therefore the proliferation of private, for‑profit health care.

31. The plaintiffs may not agree that the objectives underlying the legislative protections they challenge ‑ including protecting equal access to physician and hospital care on uniform terms and conditions, and preventing the emergence and subsidization of a private health care market – are appropriate. However, as Justice Slatter recognized in Allen: “A legislative policy is not ‘arbitrary’ just because we may disagree with it.”[18] Indeed, as the Supreme Court of Canada has held in Bedford, for purposes of the s. 7 fundamental justice inquiry, it is not for the plaintiffs, or for that matter the court, to question the government’s objectives; rather, the objectives must be accepted at face value, as the starting point for the fundamental justice inquiry.[19]

32. And in that respect, given the complex public benefit and regulatory context in which this case arises, the Coalition Intervenors expect that the evidence will show that the challenged protections and prohibitions – far from being arbitrary, overbroad, or grossly disproportionate – are directly related to advancing the multiple and complementary objectives that underlie their enactment. As detailed by one of the Coalition Intervenors’ two experts, Professor Prémont, the protections at stake are each important mechanisms by which to ensure that all Canadians have universal access to health care services irrespective of their ability or willingness to pay, and to ensure that overall societal resources are expended without the harm that would result from an expanded and subsidized market for private health care. As explained by the Coalition Intervenors’ other expert, Dr. Himmelstein, the effect of removal of these kinds of protections would be to amplify inequalities in access to care based on ability to pay, and to accelerate overall health costs, not to mention, compromise overall quality of care.

33. The following passage from the Alberta Court of Appeal’s reasons in Allen is particularly apposite:

[50] ..... Permitting private health care insurance is incompatible with fundamental values underlying the Canadian system, notably economic universality and risk universality, but also public administration, and accessibility. It must be obvious that private health care insurance is only available to the wealthy and the healthy. The result in Chaoulli is arguably inconsistent with these core Canadian values which, to use the words of Prof. Hogg, are “.... other values respected in Canadian society”. It is arguably constitutionally “justifiable” for the Canadian governments to craft a system in a Canadian context, as they have done, that is consistent with those values as expressed in the Canada Health Act, notwithstanding the policy choices that have been made by other democratic societies which reflect their different social circumstances.[20] [emphasis added]

34. The plaintiffs’ arguments simply fail to accept that, in delivering health care to its citizens, Canada and British Columbia deliberately chose to place the principle of substantive equality at the centre of their health care system. That principle ensures equal access to care for all citizens based on uniform terms and conditions, without individual patients and their families facing the risk of being required to pay in excess of what is paid to physicians by the public system. In other health care systems where some element of extra‑billing, or dual practice, or user fees, or parallel private insurance is permitted, governments may develop different regulatory schemes in order to provide health care in an attempt to mitigate or reduce the negative effects – but the principle of equity – which our Legislature placed at the very heart of our system – is compromised.

35. This is not to claim that there is not room for improvement in the organization and delivery of our health care system. But this Court will also hear evidence that Canada is by no means the only country to experience issues with wait lists, that no health care system is perfect or cannot be improved, and there are also waiting lists in the countries that the plaintiffs’ claim Canada should emulate. This Court will also hear evidence about the difficulties of cross‑jurisdictional comparison in complex disparate regimes and why it is not analytically sound to focus on one or two particular features in such a scheme to the exclusion of the entire context. The health care systems in each of these jurisdictions is unique in its specific history and values, and in the various measures in place which are aimed at protecting the public health care system from being eroded by a parallel private system.

36. This in turn raises the significant question, reflected in this Court’s exchange with Mr. Gall at the end of his opening, of whether the plaintiffs will be able to establish the necessary degree of causal relationship between the measures they challenge and the existence of wait lists in the public system. Once all the evidence is presented, we expect that it will show that the relief the plaintiffs seek would not reduce wait lists in the public system, and moreover, that there are other and better solutions that are more consistent with the objectives of the Medicare Protection Act – solutions which would not diminish the overall accessibility and quality and efficiency of our public health care system. Indeed, a misplaced focus on the measures the plaintiffs invoke ‑ private insurance and dual practice and extra‑billing – only serves to divert valuable time, energy and resources away from evidence‑based strategies, about which this Court will hear, to improve use of existing surgical capacity and to improve operating room and other efficiencies in the public system.

37. At the end of the day, it is our submission that there is no constitutional right to a health care system where physicians can claim entitlement to compensation from the public system while also participating in a private system in which they are incentivized to provide preferential access to care to those who can afford to pay more for it, nor do the principles of fundamental justice require such a health care system. There is no constitutional right to a health care system in which the Legislature is prevented from enacting safeguards to protect its fundamental objective of ensuring that individuals receive access to care without fear of having to pay for that care, or that prevents the enactment of social policy that declines preferential access to those who can afford to pay extra for their care over those who might need the care more, nor do the principles of fundamental justice prevent the Legislature from enacting such safeguards. And there is no constitutional right to compel the government to subsidize a private health care system, nor do the principles of fundamental justice require it. Not only would dual practice, extra‑billing and duplicative private health insurance be inconsistent with the objectives of the legislation establishing the public health care system, but allowing such practices would also cause harm to the majority of patients served by the public health care system and to their s. 7 rights and interests.

All of which is respectfully submitted this 14th day of September, 2016.

Alison M. Latimer,

Counsel


[1] Schooff v. Medical Services Commission, 2009 BCSC 1596 [Schooff], paras. 159‑61

[2] Schooff, para. 157

[3] Schooff, para. 162

[4] Schooff, para. 163

[5] Schooff, para. 163

[6] Schooff, paras. 164‑65

[7] Schooff, paras. 170

[8] Chaoulli v. Quebec (Attorney General), 2005 SCC 35 [Chaoulli]

[9] Canada Health Act, R.S.C. 1985, c. C‑6

[10] Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 [Charter]

[11] Canada (Attorney General) v. Bedford, 2013 SCC 72 [Bedford]

[12] Carter v. Canada (Attorney General), 2015 SCC 5 [Carter]

[13] R. v. Morgentaler, [1988] 1 S.C.R. 30 [Morgentaler]

[14] R. v. Wholesale Travel Group Inc., [1991] 3 S.C.R. 154, pp. 233‑34; Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038, p. 1051; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927, p. 993

[15] Chaoulli, para. 174

[16] Allen v. Alberta, 2015 ABCA 277 [Allen], para. 16

[17] Medicare Protection Act, R.S.B.C. 1996, c. 286

[18] Allen, para. 40

[19] Bedford, para. 125

[20] Allen, para. 50

The Evidence on Wait Times and Private Care

Canadians are hearing a great deal of confusing information about our health care system. Dr. Brian Day asserts that private care shorten wait lists and improve the system -- all the evidence indicates it will do the opposite.

  1. Australia has tried this, and found that the provision of private care did not decrease wait times; rather, in regions where private care was most often used wait times in the public sector rose.[1]
  2. In his CMAJ article, Stephen Duckett specifically finds that, while private health services slowed the pace of growth of demand in the public sector, public service demand still continued to grow, but now with diminishing access to resources to address it.[2]
  3. In a study of all OECD nations with parallel private care, researchers found that parallel private care produces longer wait times and draws resources out of the public system.[3]  They also note that shortening wait times in the pubic system is usually most successfully achieved by increasing the amount of public investment, not by increasing the amount of private investment.[4]

Evidence indicates private care will do nothing to alleviate wait times, in fact it will make it worse.


[1] Duckett SJ. 2005. “Private care and public waiting.” Australian Health Review; 29(1): 87-93.

[2] Duckett, SJ.  Private care and public waiting, CMAJ • SEPT. 27, 2005; 173 (7) 745

[3] Tuohy CH.,CM. Flood, and M. Stabile. 200. “How Does Private Finance Affect Public Health Care Systems? Marshalling the evidence from OECD Nations.” Journal of Health Politics, Policy and Law. Vol. 29, no. 3, June, pp. 37-375.

Cardiac Care Network of Ontario. 2005. “About CCN.”http://www.ccn.on.ca/mission.html.

[4] Ibid.

[5]