Thread by @Lorian_H

A summary of and some thoughts on today's decision upholding BC's limits on private health care...

The plaintiff argued that the combination of long waits and limits on private care violated Charter. The Court found that "there is in fact expert evidence that wait times would actually increase" with privatization.

As expected, the court agreed that waits could engage the Charter-protected right to security of the person. Specifically, court noted that some patients wait longer than provincial benchmark to receive care.

The court noted that although BC's law's don't prohibit private health care, they are "intended to prevent...the emergence of a duplicative private healthcare system...by restricting the prices physicians can charge patients and the scope of private funding for healthcare."

The court found that BC's laws don't violate the right to life. The court said that expert evidence showed that "timely and high quality care is provided to patients with urgent and emergent conditions...and there is no evidence of any deaths caused by waiting" in BC

In sum, the right to security of the person was infringed but not the right to life. However, these rights aren't absolute. The plaintiff also had to show that the deprivation wasn't in accordance with the principles of fundamental justice. This is where he fell short.

On principle of arbitrariness: "purpose of the impugned provisions is to preserve and ensure the sustainability of a universal public healthcare system that ensures access...is based on need and not...ability to pay"

Arbitrariness cont: private care would "increase demand for public care, reduce the capacity of the public system to offer medical care, increase the public system's costs, create perverse incentives for physicians", etc, etc, etc. Many concerns with private care.

Arbitrariness cont: "duplicative private healthcare would not decrease wait times in the public system and there is expert evidence that wait times would actually increase", causing "further inequitable access to timely care"

Laws also not overbroad (do not capture conduct unrelated to their purpose) or grossly disproportionate (their effect not out of synch with their purpose)

Because no rights violation, no need to consider section 1, but court said "in the context of a complex social program...where there is a need to balance conflicting interests and claims over limited resources, a high degree of deference is owed to the government"

That was the quick summary of the judge's summary. More to come on his weighing of the expert evidence from other health care systems...

Supreme Court decisions support the argument that when a province has a monopoly, it has a constitutional duty to ensure the service is provided in a reasonably timely fashion. In determining what is reasonable, court looked at benchmarks.

Specifically, preferred BC prioritization codes and corresponding benchmarks over pan-Canadian benchmarks because the former "are patient centric" and represent the treating dr's "individual assessment of each patient" based on diagnosis, history, health, social circumstances

Not all waits problematic. Court said that some relate to capacity but others to patient preferences, physicians' referral practices, etc.

Court's treatment of Chaoulli: parties disagreed on how persuasive it was, how different Quebec health system in 2005 was vs BC health system in 2020, defendant urged the court to approach Chaoulli cautiously given that it has been widely discredited

Chaoulli continued: judges in Chaoulli criticized for picking what they thought was the optimal policy, court here reaffirmed that this is NOT the appropriate legal test, the test is whether the impugned law "bears no relation" to its objectives (a high bar)

Another important difference between this case and Chaoulli was that Chaoulli only considered ban on private insurance, while this case also considered other limits on private $ (like ban on extra billing)

"no constitutional right entitling patients to choose public or private healthcare on demand"

The purpose of laws limiting privatization "is to preserve and ensure the sustainability of a universal public healthcare system which guarantees that access to necessary medical care is based on need and not on an individual’s ability to pay"

Unlike court in Chaoulli, the judge here was appropriately cautious about importing policy evidence from other jurisdictions.

UK expert evidence: "[n]o respectable scholar would attribute the fall in NHS waiting times to any aspect of the private health care insurance market.” Improvements due to wait time guarantees, reputational damage to hospital managers, and high increases in healthcare funding.

Another UK expert: "in some areas in the United Kingdom which had the highest levels of private provision of healthcare there was 'cream skimming'"

Judge's conclusion on UK: "private healthcare and private health insurance played a minimal role, at best a supportive one, in reducing wait times in the UK." The reasons wait times were reduced were increase in $, wait time targets, etc.

New Z expert: New Z "not a good example in terms of equitable access...the wealthier and healthier segments of the population, those who can afford private health insurance and are not excluded due to pre-existing conditions, are able to purchase more expedient care.

New Z expert: "issues in terms of private pay patients jumping the queue in the public system by accessing specialist services more quickly in the private sector, only to then return to the public queue at a more advanced stage."

New Z expert: "Another issue has been cross-subsidization of the private system by the public system, including by way of higher usage of the public system by individuals who have private health insurance."

Irish expert evidence: "the trade-off between the relatively limited benefits of private health insurance are outweighed by the increased costs associated with its administrative complexity."

Irish evidence: physicians allowed to work in both pub/priv systems, 2009 report from the Comptroller and Auditor General found "the proportion of consultant specialists in breach of their 2008 contract terms was in the order of 33% and was more than 50% in some hospitals."

Irish evidence: issues with solidarity, integration, equity

Australia expert evidence: "anecdotally, hospital managers believe that doctors cancel public work in favour of their private patients because they are overworked. This is particularly the case in areas where there is a shortage of surgeons."

Australia expert evidence: "there has not been a reduction in wait times in Australia associated with the take-up of private insurance", "evidence that physicians are preferring private practice over the public system"

Conclusion on experts: "there is evidence here that supports the defendant’s position that the introduction of private healthcare would detrimentally affect the public system in British Columbia"

Application of evidence to BC: private insurance would increase utilization, which would increase costs; private healthcare would increase admin costs and inequity; "very clear that...duplicative private healthcare would not improve wait times in the public system"