Picture of Trevor HancockTrevor Hancock is a professor and senior scholar at the University of Victoria’s school of public health and social policy


Our health care system is not the only, and not even the most important determinant of the health of the population. But it is a determinant, and thus any threat to the proper functioning of the system is a threat to health. One such threat is the court case that started this week in the BC Supreme Court, in which Dr. Brian Day and others are seeking to overturn some of the fundamental principles on which the system is based.

Day co-founded the Cambie Surgery Centre in Vancouver in 1996; in essence it’s a private hospital with a number of operating rooms, offering a wide range of surgical procedures. There is nothing wrong in principle with a private hospital. Most Canadians don’t seem to realise this, but much of our care is provided through privately-owned clinics – that is what your doctor’s office is.

So while the average gross clinical payment per physician was $339,000 in 2014-15, that includes the overhead cost of running their practice – rent or mortgage, equipment, staff salaries and benefits, insurance, as well as their own pensions and educational debts: On average it amounts to a quarter of their gross income.

But they are not allowed to pass those costs on to you. As the 2012 provincial government audit of the Cambie Surgery Centre makes clear, BC’s Medicare Protection Act, with certain exceptions, “prohibits medical practitioners from extra billing beneficiaries for a benefit, or for materials, consultations, procedures, facility use, or for any other matters that relate to the rendering of a benefit”. (A beneficiary is a person covered by Medicare, a benefit is any service that is covered.)

The audit found “significant evidence to indicate extra billing had occurred . . . on a frequent and recurring basis, contrary to the Act”, that “the extra billing would often overlap with physician claims of MSP” and that “charges to beneficiaries for benefits rendered. . . exceeded the value of what the beneficiary could claim from MSP”. (Day might dispute some of these findings.)

Day’s response has been to bring a suit against the province claiming that it is unconstitutional to prevent a doctor charging patients more than MSP allows, to ban private insurance for medically necessary care, and to prevent doctors working in both the public and private system.

If he wins, then as Prof. Colleen Flood (who holds a university research chair in health law and policy at the University of Ottawa) noted in the Globe and Mail in April 2015: “Foundational pillars of Canadian medicare — equitable access and preventing two-tier care — could well be vanquished in the process.”

Her views are reinforced by the expert report the federal government is using to support its intervention in the case. The expert is Dr. John Frank, first Scientific Director of the Institute of Population and Public Health (part of the Canadian Institutes of Health Research) and now a Professor of Public Health Research and Policy at the University of Edinburgh. According to an August 29th CBC News report, he writes that “in my expert opinion,” more private health care would reduce fairness and efficiency and “society as a whole would be worse off.”

If Day and his supporters win, we would have a system where those with money or a private or employer-provided benefits package would do fine, the rest would not, much as is the case for dental care. What does that look like? Well, in 2007-9, 32 percent of Canadians had no dental insurance at all, and that increased to 50 percent among lower-income Canadians. Those without private insurance would all rely on public insurance in a 2-tier system. Is this really what we want our entire health care system to look like?

So there is a lot at stake in this trial. Whoever wins — and I profoundly hope it is not Day — this will almost certainly end up at the Supreme Court of Canada. If ultimately the latter should rule in favour of Day, I can think of no better example of a situation where governments across Canada should invoke the “notwithstanding” clause of the Constitution to protect our health-care system. The public interest far outweighs the private pursuit of profit.

Editor’s note: This blog was originally published as a regular column in the Times Colonist