Dr. Brian Day @DrBrianDay Twitter

  • Past President Canadian Medical Association
  • Past President Arthroscopy Association of North America
  • Honourary Associate Professor University of British Columbia
  • 2014 Doctors of BC Don Rix Leadership Award

The Waiting Games

May 15, 2017

BC Medical Journal


"In the current marathon Medicare case, almost half the (8) months of expensive court time has been consumed on arguments about expert credentials, procedural wrangles and government motions to block evidence. "

"In this challenge, the issue has become more about the strictures governing litigation and less about how long and at what cost people are waiting for needed medical services, the constitution and its requirements." Ian Mulgrew, columnist, Vancouver Sun, March, 2017

At the time of this writing, we are now approximately eight months into the constitutional trial. The six patient plaintiffs (two of whom died during the nearly eight-year delay getting to trial) and the Cambie Surgery Centre are opposed by 22 lawyers and a large team of paralegals and consultants. Governments have a limitless budget – your and our tax dollars. I console our lawyer, usually sitting alone and isolated at the front of the courtroom, with a reminder of the David and Goliath story.

Court observers have cringed at the discourteous dialogue between opposing lawyers and our witnesses. "Professionalism" appears absent from the code of conduct of the opposing legal team. Their manner of speech is often rude, aggressive, and ignorant. If physicians behaved similarly toward each other, or to patients, we would be disciplined for unprofessional conduct.

Government backtracked on a pre-trial agreement to accept submitted expert reports, forcing the solicitation of additional reports leading to further expense and delays. They had previously violated the rules by not disclosing 300,000 documents until a week before the earlier 2016 trial date, causing another financially harmful delay. A national charity, the Canadian Constitution Foundation https://theccf.ca/ is assisting with fundraising and our lawyers are frugal and efficient, but the government strategy of pressuring us financially represents a serious threat. I believe they have deduced that forcing us to abandon the case represents their only path to victory.

The court has heard protracted arguments and objections aimed at blocking the admission of factual evidence. Government appears to have no other strategy in place. They even argued that their own, government authored, reports and publications should not be allowed into evidence. The British Columbia Health Minister was called as a witness after he publicly admitted that countries with hybrid systems in Europe, and Australia and New Zealand outperform us. Government opposed his appearance arguing, that like Manuel in the BBC's Fawlty Towers, he knew nothing.

Access to justice in Canada is as bad as access to care. We hear opponents calling for equal access to care, while enjoying inequality before the law. Compare our eight months to date with the single month that the landmark Chaoulli case lasted.

The BC government web site lists 85,000 patients waiting for procedures from the time the hospital booking is processed. The evidence has already shown that surgical wait-time data is grossly underestimated. In targeted cases, such as knee replacements, less than half are receiving care within the benchmark of six months, and the time waiting for consultations and investigations is discounted. The COA has rejected government benchmarks as being over twice as long as they should be . Our Health Minister, a veterinarian, would likely lose his licence if he allowed a pet waiting for a hip arthroplasty to suffer in pain for even a week. The waits are worsening more so in the non-targeted procedures.

Government lawyers have argued that patients neither deteriorate nor suffer while waiting. They repeatedly invoke procedural gerrymandering to prevent the judge from hearing evidence that proves harm to patients. In advance of the trial, both sides had agreed not to challenge the credentials of experts. However, once witnesses were on the stand, government lawyers reneged and demanded that major sections of the reports be censored and deleted. Even a lawyer for an opposing intervenor group described that process as nonsense.

Such legal wrangling has forced multiple rearrangements and shuffling of witnesses. I was scheduled to appear in early April. The government asked for a two-month adjournment (remarkably, claiming it will help us better prepare our case). Because of the summer recess, that will effectively mean a four month delay. The real reason, I suspect, is that an election has been called, and the evidence of forthcoming witnesses would be embarrassing during an active campaign.

My testimony will expose extreme pretentiousness on the part of the defending BC and federal governments, not to mention the intervenors. While I will not disclose Visa numbers, I will describe inconsistencies in their professed beliefs. Some of our doctor witnesses may have taken the "Hippocratic Oath". I will describe how some key government players, and their supporters, appear instead to abide by a "Hypocritical Oath".

In 2005, the Supreme Court of Canada ruled that Quebec citizens have the right to purchase private insurance, and stated that Canadians are suffering and dying on wait lists. I presume government lawyers will argue that patients outside of Quebec should be allowed to suffer and die on wait lists.

Our case differs from the Quebec case in two important areas. First, it is argued only under the Canadian Charter of Rights and Freedoms and, as it rises through the hierarchy of courts, it will be precedent setting for all provinces. The Chaoulli ruling was under the Quebec charter. Secondly, we seek the legalization of "dual practice", which will expand opportunities for many doctors, and their patients, constrained by limited access to hospitals. In orthopaedics, that will help solve the dilemma of the reported 178 young, highly qualified, surgeons who cannot get full time work.

The court will ponder why Canada, in contrast to every other country on Earth (communist regimes of China, North Korea, Cuba, Laos, and Vietnam included), is alone in outlawing a citizen's right to obtain private insurance for physician and hospital services.

The court has heard arguments opposing governments' position that a monopoly serves consumers best. Our legal challenge is not about creating a free market in health care. We support a government-regulated internal market, with patient-focused funding (instead of block funding), and a small component of non-government competition, as exists in every successful universal health system.

Patrick Monaghan, a former Dean of Law at Osgoode Hall, has written:

"We conclude that 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."

Our case is about forcing governments to obey the law.

In upcoming editions of the COA Bulletin, Dr. Brian Day will be contributing trial updates from the Constitutional Challenge to B.C.'s ban on the purchase of private health insurance for medically necessary services that are already covered by the public system, led by the Cambie Surgery Centre. The outcome of this trial is important to orthopaedic surgeons across Canada as the decision in British Columbia will likely set a precedent for other provinces. Improving access will be beneficial to patients, to the economy of Canada, is compassionate, and will provide resources so that our orthopaedic graduates will have jobs in the future.

Regardless of how you feel about the trial and its outcome, the debate on access and funding of care is critical to the future care of our patients – Ed.