B.C. can't privatize its way out of long surgical waits, Supreme Court says. What now?

The Supreme Court of Canada's dismissal was 56 words long, but it spoke volumes.

Canada's highest court said it would not hear a Vancouver orthopedic surgeon's appeal challenging B.C.'s key limits on private health care, ending Dr. Brian Day's 14-year legal fight.

Health Minister Adrian Dix celebrated the dismissal as a "vindication" of the public health-care system Thursday morning.

As he did, more than 80,000 British Columbians were waiting for their surgeries in the public system. Some in the north and Interior have been waiting for more than two years.

Day and some advocates say persistent long waits prove the public system isn't up to the task of fixing the backlog and fear the court is washing its hands of an important issue.

"This is a worse day for justice than it is for health care," Day told CBC News Thursday.

Stories of individuals facing long and painful delays showed the case's high stakes, but the public health-care system wasn't on trial.

The court was considering whether B.C.'s limits on private insurance and extra billing violate the principles of universal and reasonable access to health care enshrined in the federal Canada Health Act when waits are so long in the public system.

"The crux of this case is that we have unreasonable wait times in the public system and then limits on privatization," said Lorian Hardcastle, an assistant professor specializing in health law at the University of Calgary.

"The entire premise underlying the Canada Health Act is that people ought to be able to access health-care services based on need, rather than ability to pay," said Hardcastle.

WATCH | Dr. Brian Day says the health-care system is being left to implode:

Dr. Brian Day discusses Supreme Court's dismissal of his case

2 years ago

Duration 1:14

Vancouver surgeon says it is a bad day for health care and a "worse day for justice."

The dismissal leaves provinces to pick up the pieces of a beleaguered health-care system, discouraging them from turning to privatization, public-health-and-health-law academic experts say.

Experts have long feared a Day victory would have formalized a two-tier health-care system where wealthy patients could pay to jump long surgical queues. 

And now private upstarts offering paid membership for certain health services may think twice about expanding as the province and Ottawa vow to come down harder as well. 

"This will embolden moves by the government to limit the degree to which private practice is taking place," said Michael Law, a professor at the University of British Columbia School of Population and Public Health who was an expert witness for the province in the trial.

Charter confusion

Though Canadians hold health care as a core value, there is no right to health care in the Charter of Rights and Freedoms. 

Some, including Day, argue it is established within the rights to life, liberty and security of persons. 

Both he and Colin Craig, the founder of SecondStreet.org, a think-tank that advocates for privatizing health care in Canada, say what is reasonable and universal, as the Canadian Health Act requires, should be decided by the courts.

The dismissal denies these patients the same consumer rights enjoyed in nearly every other service and afforded to some patients in Quebec by the Supreme Court itself, said Craig.

In its 2005 Chaoulli v. Quebec decision, the Supreme Court repealed that province's ban on private clinics billing private insurance purchased by the patient, similar to B.C.'s provision.

"By refusing to hear this new case, [the Supreme Court] has essentially said that right doesn't extend to the rest of the country," said Craig.

The court needs to consider the legal framework and objective of the health-care system as a whole, not just sympathetic individual cases, said Hardcastle.

"This is not the court endorsing the health-care system as it currently is. It's the court saying we're not opening the floodgates of privatization as a response," she said.

Privatization could increase waits

B.C. has been making steady progress on its surgical wait list, even with cancellations due to the COVID-19 pandemic. 

The province has added 17,000 operating room hours since March 2020 and increased the number of annual diagnostic MRIs by 130,000 and CT scans by more than 200,000 per year.

Delays in diagnostic testing and specialist referrals, as well as the province's ongoing staffing crunch, still keep some operating rooms empty. 

Evidence from other jurisdictions shows privatization doesn't shorten wait times because it siphons away nurses and surgeons who would otherwise be operating within the public system, Hardcastle and Law noted.

WATCH | Health Minister celebrates 'very important day' for B.C.'s health-care system: 

Health Minister Adrian Dix calls Supreme Court decision "vindication" of public health-care system

2 years ago

Duration 0:58

B.C. will continue working through the surgical backlog and training more doctors and nurses, Dix says.

Other countries with parallel public and private systems, like France and Australia, also have safeguards to keep a minimum number of doctors and nurses in the public system before workers can move to private practice.

"It's pretty clear that having physician's practice both in and outside of the public system, if anything, results in longer wait times for patients in the public system, not the other way around," said Law.

The people most likely to need urgent surgery are often the least able to pay out of pocket, Hardcastle said.

"Those people may wait longer if private facilities are able to pull doctors and nurses and other staff from public hospitals," she explained.

All three experts agreed the province needs to increase the number of doctors and nurses it trains faster than it is currently adding seats in medical schools and residencies.

Since last year, B.C. has added 40 new seats to UBC's medical school program for a total of 328 seats this fall. It is also adding up to 88 new residency spots over the next two years, for a total of 214 seats in 2024.

Now it's up to B.C. to answer for the responsibility the courts have granted it. 

"While this case might be seen as a victory for public health care, it certainly isn't time for the governments to rest on their laurels," said Hardcastle.