Lawyers representing two groups tell court that a ruling in favour of the private clinic’s constitutional challenge would affect the future of the public health-care system for all Canadians.iStockphoto/Getty Images/iStockphoto
Two groups intervening in the constitutional challenge of B.C.'s ban on private health care say a ruling in favour of a for-profit clinic would greatly undermine the public medical system and its tenet that access to treatment doesn't hinge on a patient's ability to pay.
The Cambie Surgery Centre, a private Vancouver clinic, opened its constitutional challenge last week in B.C. Supreme Court. A lawyer for the clinic and four of its patients argued that barring residents from accessing private health care and forcing them to suffer on lengthy waiting lists violates their Charter rights.
But Marjorie Brown, a lawyer representing four patient intervenors, told the court in her opening statement Wednesday that the Medicare Protection Act is a "dignified way by which to lawfully ensure equal access to necessary medical care, regardless of one's ability to pay … and/or other social circumstances."
Ms. Brown said residents of this country have a right to not worry about the high cost of medical care. She said that is "the promise" of not only the Medicare Protection Act, but also the Canada Health Act.
This case, Ms. Brown said, could determine the fate of medicare for all Canadians.
"This case is indeed about the future of the public health-care system, in its ideal and actual forms," she said.
Ms. Brown went on to question the clinic's motivation for pursuing the case and said the provisions it seeks to strike are "all about the ability to charge money."
She pointed to one provision of the Medicare Protection Act that prohibits extra charges for medically necessary services, and another that prohibits the purchase and sale of private insurance.
Ms. Brown also argued the clinic's Charter argument is "not about the liberty or the security of the person, but rather about the right of the Cambie clinic to profit as a private corporation."
Alison Latimer, a lawyer representing another group of intervenors, gave her opening statement after Ms. Brown and urged the judge to remain mindful of the Charter interests of "ordinary British Columbians whose health depends on retaining the long-standing protections that the plaintiffs seek to eliminate."
The group Ms. Latimer represents includes Canadian Doctors for Medicare, the B.C. Health Coalition, as well as two patients and two individual physicians.
Ms. Latimer said her group will tender as evidence an expert report that found "fundamental flaws" in the plaintiffs' claim that striking down sections of the Medicare Protection Act would yield a health-care system similar to those seen in several European countries, where public and private systems operate in parallel.
She said striking down the protections would be more likely to result in a health-care system that resembles that in the United States.
Peter Gall, lawyer for the plaintiffs, last week told the court the B.C. government does not provide timely medical services and its failure causes substantial harm to the physical and mental health of residents. He said that because the public system has failed to protect the health of all British Columbians, the government cannot constitutionally prohibit residents from accessing private health care.
A B.C. government lawyer gave his opening statement Monday and acknowledged "longer than desirable" waiting lists persist for some elective or scheduled procedures. However, he said if the plaintiffs are successful in their constitutional challenge, the problem will only worsen.
Jonathan Penner, the lawyer for the province, said a win for the plaintiffs "would create perverse incentives for physicians and would introduce a private system that would depend on abandonment of the present efforts to reduce wait times in the public system."
The federal government, which is a party to the case, did not give an opening statement.