Dr. Brian Day: Access to health care is a Constitutional right

Dr. Brian Day says our medical system is broken.
Stuart McNIsh

Our constitutional challenge against government laws that ban private insurance for medical services will resume later this year. In authoritarian regimes, citizens’ rights can be ignored. Canadians might believe that our constitution offers protection against such oppression, believing Ayn Rand’s statement, “The government was set to protect man from criminals — and the Constitution was written to protect man from the government” applies in Canada. In practice, the enforcement of individual constitutional rights is severely limited by the enormous costs of litigation. We are facing governments using unlimited tax dollars in defence of their right to subjugate sick patients. Fortunately, a national organization, the Canadian Constitution Foundation, is helping support our efforts.

The question asked in our lawsuit is one that the Supreme Court of Canada answered when it abolished laws banning private health insurance in Quebec, stating “Access to a waiting list is not access to care” and “The evidence shows that delays in the public health care system are widespread and patients die as a result of waiting lists for public health care.” By extrapolation, believers in our current system support the suffering and deaths of patients on wait lists. We believe all Canadians should have the same constitutional rights as Quebecers. Governments continue to promise care while failing to deliver it. To add insult to injury (and illness) they outlaw the right to access that care independently.

In B.C., government lawyers have literally argued against their own reports and publications being allowed into evidence. They blocked the B.C. health minister from testifying, after he had stated publicly that hybrid systems in Europe, Australia and New Zealand outperform Canada. The media had foreseen such tactics, and tried to have the trial televised so that Canadians could observe, first-hand, governments’ arguments. We also supported such public scrutiny and transparency, but governments successfully fought the request.

I receive many enquiries such as: “I am 84 years old. I am limping in pain. I need surgery but I am afraid I will be breaking the law if I come and get surgery sooner than is allowed in the public system. What shall I do?”and. “My three-year old has cerebral palsy and has been waiting four months for a surgical release on her foot. The foot is stiffening in the deformed position. Can you please help her?”

To allow a suffering patient — or their insurance company — the ability to rent an operating room when the government won’t let them into theirs is not immoral, unethical or illegal. The B.C. government contracts care to private clinics, paying the clinic’s facility fee. They decide, based on available budgets rather than medical necessity, if you can access care privately. Who gives them that right? Do they own your body? Existing laws are synonymous with the medical enslavement of Canadians.

Our clinic was joined by six patients in challenging such draconian laws. Two of them have died and a teenager was paralyzed for life as a result of waiting. Federal Health Minister Jane Philpott boastingly calls the status quo “the Canadian way.” I wonder if the plaintiffs’ families, or the millions on wait lists, support her. In every other country on earth, a citizen has the right to look after their health when the state fails to do so.

Governments ignore manpower issues as they block 180 young, highly qualified, orthopaedic surgeons from accessing ORs in public hospitals. OECD rankings show Canada has an above-average number of nurses per capita, but our public hospitals cannot attract them to work.

B.C. lists 85,000 patients (a gross underestimate) waiting for hospital admission. In targeted knee replacements, 47 per cent receive care within the six-month government “benchmark,” which is double the time doctors have proposed as the maximum. The benchmark excludes waits for consultation and tests. Governments argue patients neither deteriorate nor suffer while waiting.

And it’s not just surgery. More than 4,000 Canadians a year commit suicide. Psychiatrists believe over half could be saved if access to mental health services were available.

Patients at private clinics include federal and provincial leaders and their families. They don’t wait like ordinary Canadians. Does anyone believe that multi-million dollar athletes should (or do) wait 18 months for a $5,000 knee surgery that gets them back playing in two months? Foreigners, RCMP, WCB, federal employees and prisoners use private insurance. They are exempt from laws that force others to wait. Citizens who are not in jail should have the right to take care of their health that existing laws grant to prisoners. Many opposing us in court have benefitted from private care for themselves or their families. Confidentiality rules prevent me from identifying them.

Like most doctors in Canada, I support a strong public system. But, if care is significantly delayed, patients should be able to use their disability or extended health insurance, to access treatment independently. That represents Canadian Medical Association policy. Our litigation is about putting that policy into law. International experience in countries with successful universal public systems proves that even a small element of competition improves performance in the public system.

In Canada public health bureaucrats outnumber those in Germany (where there are no wait lists), on a per capita basis, by 11:1. The federal government is primarily responsible for health care of First nations. They have the worst health access and outcomes in Canada. If the federal ministry were abolished, the billions of dollars saved could be directed to patient care. We don’t have a federal education minister and we don’t need a federal health minister. If our Medicare model were applied to education, independent schools would be banned and there would be long waits to get into school. Those waiting would be breaking the law if they or their parents tried to fund their education personally.

A former dean of law at Osgoode Hall has opined, “Where the publicly funded system fails to deliver timely access, governments act unlawfully in prohibiting Canadians to use their own resources to access those services privately.”

We intend to force governments to obey the law.

Dr. Brian Day is an orthopedic surgeon, medical director of the Cambie Surgery Centre in Vancouver and a former president of the Canadian Medical Association.

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