Today the Court dismissed a constitutional challenge to sections 17, 18(3) and 45 of the Medicare Protection Act. This judgment follows a marathon trial that lasted over 3 years in respect of a court case filed over a decade ago. It is important to appreciate what was at stake in this litigation. Sections 17, 18(3) and 45 of the Medicare Protection Act do not prohibit private healthcare. They prohibit some physicians and healthcare facilities, who are providing medically necessary services covered by the public plan, from charging user fees and billing MSP beyond the MSP schedule. Section 45 prohibits the sale of private health insurance to MSP beneficiaries for medically necessary services covered by the public plan. The plaintiffs argued that these restrictions infringed sections 7 and 15 of the Charter. These provisions protect individual rights to life, liberty and security of the person and the right to equality. In this case the plaintiffs established that unreasonable wait times engage the right to security of the person for some patients. This is because some patients suffering from non-urgent, deteriorating conditions and waiting for elective surgeries do not receive care in a timely manner. For some patients waiting beyond their assigned benchmark for their elective surgery increases the risk of deterioration and reduced surgical outcomes. The wait is clinically significant to their health and wellbeing. However, the Court found that timely and high-quality care is provided to patients with urgent and emergent conditions where there is risk to life or limb, and there was no evidence of any deaths caused by waiting in British Columbia. The rights to life and liberty were not engaged.
The plaintiffs did not establish that the deprivation of the right to security of the person was contrary to the principles of fundamental justice.
The Court found that the impugned laws were not arbitrary.
The purpose of the impugned provisions is to preserve and ensure the sustainability of a universal public healthcare system that ensures access to necessary medical care is based on need and not on an individual’s ability to pay. The combined effect of the impugned provisions is one of suppressing and discouraging the emergence of a parallel duplicative private healthcare system for the financing and provision of necessary medical services to MSP beneficiaries.
There is a rational bases for concluding that the introduction of duplicative private healthcare would increase demand for public care, reduce the capacity of the public system to offer medical care, increase the public system’s costs, create perverse incentives for physicians, increase the risk of ethical lapses related to conflicts between the private and public practices of physicians, undermine political support for the public system, and exacerbate inequity in access to medically necessary care. Indeed, it would create a second tier of preferential healthcare where access is contingent on a person’s ability to pay. Duplicative private healthcare would not decrease wait times in the public system, wait times would actually increase and this would cause inequitable access to timely care.
The laws do not capture conduct unrelated to their purpose, nor is their effect totally out of sync with their purpose
Nor was there evidence to suggest that the impugned provisions have a disproportionate adverse impact on the elderly, the very young or the disabled, as the plaintiffs argued.
Given there was no breach of the Charter, there was no need to conduct a section 1 analysis. Nevertheless, the trial judge found that In the context of a complex social program such as healthcare where there is a need to balance conflicting interests and claims over limited resources, a high degree of deference is owed to the government under s. 1 and taht even if there had been a breach, the laws would be a reasonable limit on those rights demonstrably justified in a free and democratic society under s. 1.
I acted for a coalition of intervenors in support of medicare.
The full decision is available here.