Should BC residents have the right to purchase health insurance to fund privately secured medical services?

Health Law Update

July 11, 2017

Jonathan P. Rossall, QC, LLM | Partner, McLennan Ross LLP

Cambie Surgeries Inc. et al vs. British Columbia is a truly Sisyphean effort

Contributed by: Jonathan P. Rossall, QC, LLM | Partner, McLennan Ross LLP

The Greek gods punished Sisyphus, the king of Ephyra, for his self-aggrandizing craftiness and deceitfulness by forcing him to roll an immense boulder up a hill, only to watch it come back down time and time again. Through the adaptation of this myth into modern culture, tasks that are laborious and futile are described as Sisyphean.

Almost two years ago, this space featured a column entitled “BC constitutional challenge will have its day in court.” It was optimistically reported at that time that the case would commence in November 2015. In point of fact, the case commenced in September 2016 after several delays arising from the late production of documents by the defendant, the BC Government, and the last-minute addition of the federal government as a co-defendant. Now, the case is delayed further until September this year. At this stage, the plaintiffs have not completed putting their case fully before the courts and, needless to say, the defendants have not even started the defence.

Readers will recall that the challenge relates to the right of BC residents to purchase health insurance to fund privately secured medical services. Essentially, it is a challenge to the ministry of health’s monopoly on the provision of public health services. The plaintiffs are Cambie Surgeries Inc., four of its patients and another private medical clinic.

According to recent reports, the plaintiffs have found themselves mired in a series of procedural issues and applications, many revolving around their efforts to have expert evidence on the impact of wait lists and other relevant issues put before the court. According to Dr. Brian Day (the representative of Cambie Surgeries Inc., and an outspoken advocate of the need for private medical resources), the government has deliberately used stall tactics and has erected artificial barriers to the efforts of the plaintiffs to complete their case.

More recently, Dr. Day states the plaintiffs are also running out of funding. He has indicated that the initial budget for legal fees anticipated a six-month trial, which has already been surpassed. According to Dr. Day, the plaintiffs have spent more than $2 million (which includes privately donated funds and money donated from the Canadian Constitutional Foundation).

An example of the roadblocks allegedly placed by the government is their objection to the plaintiffs’ attempt to admit evidence from Dr. Bassam Masri. Dr. Masri is the head of orthopedic surgery at the University of British Columbia and the Vancouver General Hospital. He holds several senior administrative positions in the health industry. A large part of what Dr. Masri does is oversee the allocation of surgical resources.

The province allegedly questioned Dr. Masri’s qualifications to give an opinion on the impact of wait times on patient care. Dr. Masri believes that current wait times are unsustainable, that the availability of private health care provides competition to the public system and that private health care would serve as a valuable alternative. The purpose of expert opinion evidence in the context of a trial is to provide insight from a qualified individual on areas of evidence that the court itself does not have and which cannot be gained merely from the introduction of evidence. So although it would be possible to introduce evidence from patients regarding their individual experience with wait lists, expert evidence is required to get a broader view and form an opinion of the impact that wait lists might have on health care generally.

Strangely, the trial judge agreed with the province and held that while Dr. Masri is entitled to his personal opinion on such issues, that opinion was not supported by any research or other evidence. Based on even a cursory review of Dr. Masri’s background, it is difficult to envisage a physician better qualified to venture an opinion on wait lists and the availability of resources, but such are the vagaries of the judicial system.

Similar objections have apparently been raised (and upheld) in relation to numerous experts sought to be admitted, which has resulted in the passage of time and ever-increasing costs.

And so the case creeps on, with the plaintiffs using the time off to raise funds, locate other experts, re-group and generally continue pushing the boulder up the hill.

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