Cambie case decision

Yesterday, BC court ruled on the Cambie surgery clinic. For full disclosure I went there for my shoulder surgery back in early 2018 and yes I am enrolled in MSP and yes I paid for it. So essentially the surgery I got then may no longer be allowed in future. My view on ruling is mixed and below I will give both positive and negative reactions and also my thoughts on this overall.

Due to complexity of health care and risks of striking down the case, I think judge made right decision as much as I don’t like either the Canada Health Act or Medicare Protection Act. Courts have to find an actual rights violation and in this case I would say that is a real stretch. More importantly they cannot make laws, they can only strike down laws. And when they strike down laws, they cannot take political considerations into account. Otherwise they cannot assume politicians will legalize private health care but put up in appropriate safeguards. They have to take into consideration risk of no safeguards being put in place. So while right ruling, it is disappointing what may come and really too bad we don’t have governments at both levels willing to change this.

I am fully supportive of a parallel private system provided it is properly regulated with appropriate safeguards so as public system is not undermined. Most other developed countries do this and deliver better outcomes than we do. I believe the biggest barrier is the Canada Health Act at the federal level. While it does not specifically ban centres like Cambie one; it is so vague that its interpretation largely is up to the discretion of the government of the day. Some like Harper government take a very narrow view of it and only issue deductions for blatant violations. Others like Trudeau who is a social democrat at heart and for ideological reasons opposes idea of anyone getting health care faster (except for himself, no way he would wait in line if had to, but that is a whole different story) will threaten fines for any province that allow such clinics. He has already threatened provinces over private MRI clinics even though they have existed legally for over a quarter of a century without issue. For this reason, provinces generally make their restrictions on health care super strict and don’t allow any experimentation since fear is even if government of the day was okay with it; some future federal government might not be. So solution is to repeal the Canada Health Act which is a political act and has outlived its usefulness.

I’ve found most politicians on this appeal to emotional idea of care being based on need not ability to pay. It is fine to have this as an ideal, I support this ideal too. But like any ideal, there needs to be a dose of pragmatism that we don’t live in an ideal world and sometimes our ideal isn’t practical. So then focus should be on what is best possible outcome. Many say Canada Health Act is part of our core national identity, but if that is so, then why is it needed? Provincial governments are all democratically elected and if truly part of our national fabric, which I believe it is, any provincial government that privatized health care would see their party annihilated at the polls. By putting such act in, this is essentially saying federal government fears people in some provinces might elect a government that would allow more private involvement than they are comfortable with. And for an ideal to be part of our national identity, it must be one that has support in every corner of the country, not just the most populated parts. So since this is a barrier to reform, I believe its repeal is long overdue. Unfortunately running on such platform would be political suicide therefore people who understand its detriment need to promote it since until public is in favour of this, zero chance of happening. I also think if repealed, little would change anyways as provincial restrictions on private health care would continue to exist unless repealed by provincial government. More importantly as a federation, I think allowing provinces freedom to experiment gives us a chance to learn what works and what doesn’t. Much of opposition to greater private role in health care is fear we will have US system. I find on far too many issues we only look at two countries and base our decisions on that. I believe that is not the way to go as there are depending on definitions, around 30-50 developed countries globally so why not look at all of them and learn from best instead of just being satisfied our system is better than the US.

Until Canada Health Act is repealed not much provinces can do lest they risk deductions in transfers which they can ill afford. But if someday it is ever repealed (I don’t think that will happen sadly), I believe the solution is not to get rid of Medicare protection act but amend it. I oppose doctors being allowed to cut back time in public system to work in private. That means longer waiting times for those who cannot afford to go private and that is not right. But if doctors wish to work additional hours beyond their time in public system in the private, I see that as a positive. Yes it means the rich getter faster care, but also means the poor do too as public queue is shortened so everyone is better off. Yes rich see bigger gains so it is not equitable, but if equality means bringing everyone down to lowest common denominator, I fail to say how that is a good thing. Our goal should be to improve things for people so if everyone is better off, what is the problem other than left wing ideology? The doctor who operated on me, only got 10 hours a week of operating time in public system so that is why he went private. If the government cannot give doctors like him having a full 40 hours of operating room time a week, then they should not stop them from spending the additional 30 hours in the private system. I likewise think Saskatchewan’s experiment with MRIs is one that should be considered and expanded to surgeries. This would mean for every paid surgery, one must be offered free of charge. And as someone well off, I would have no problem paying double for private surgery so someone else in the public queue could get one free in the private.

Right now, doctors can only go private if they de-enroll from MSP. I would change that to allow private health insurance for medically necessary services so more people can afford it and also allow doctors to operate dual practice with restrictions. Any doctor that wishes to go private should be required to do a minimum number of hours in public system. Likewise any doctor operating in dual practice should be prohibited from advertising or telling patients about their private practice so as to avoid conflict of interest unless patient specifically asks. Or even better if a doctor in public system refers a patient to someone in private system, it must be another person who is not working for same corporation so as to avoid conflict of interest. I would however maintain the ban on extra billing meaning if you bill the patient, you cannot bill MSP and vice versa. That I do not support changing as eliminating that would put public system at risk.

With the ruling my concern, is if enforcement of Medicare Protection Act is put in place, wait times will get worse which we can ill afford. I think the federal government should drop its ill advised position of ending private diagnostic clinics as I believe main reason for provincial enforcement is more due to federal government threats of deductions. If federal government ended that, I don’t believe provincial government would take action. NDP may ideologically oppose such clinics, but unlike federal Liberals, they have to deal with political fallout if line ups swell so more likely they would simply ban future clinics or as finances permit, buy back private ones. By contrast federal Liberals don’t have to deal with political fallout so they can get away with an ideological approach.

Ruling may have been a setback for those who favour greater private provision, but that doesn’t mean debate is over. Otherwise ruling only says such restrictions are constitutional, it does not say whether they are a good idea or not. Francois Legault has already said health care is provincial jurisdiction and Canada Health Act has no bearing on their province. Since we have mostly small c conservative premiers, I see no reason why Legault and Kenney couldn’t form an alliance to push for its repeal. Yes federal government would push back and Tories would be reluctant to champion it, but with Legault being super popular in Quebec and Quebec a key province one must do well into form government, maybe this is our best hope. Other solution is to open such clinics on Indian reserves which has been discussed multiple times and due to treaty rights federal government may have a tough time shutting those down. More importantly even if they could legally stop them, it would not look good or go over well. And once people see such clinics don’t threaten public health system, less opposition there will be to changes. Off course there is an element of around 1/3 of Canadians who blindly opposes these for ideological reasons. That group will never support these irrespective of evidence. Likewise around 20-30% believe people should have the right to pay for health care if they wish and that group would never support any ban on such. However the remainder who make up the middle are not ideologically opposed to bans on private health care, but not ideologically for either. Their main concern is which system delivers best outcome and that is the group where focus needs to be.

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