Ian Mulgrew: Doctors trashed in defence of Medicare

“Canadians consider equal and timely access to medically necessary health care services on the basis of need as a right of citizenship not a privilege of status or wealth." — B.C. lawyer Jonathan Penner

B.C. lawyer Jonathan Penner reminded the B.C. Court of Appeal clinics such as Cambie Surgeries and Dr. Brian Day (above), the face of the constitutional challenge, had been flouting the MPA for more than 20 years, and perhaps worse.

COVID-19 may have conferred a saintlike halo on some doctors, but as far as the B.C. Government is concerned too many remain greedy, unethical and ready to ablate part of Canada’s soul.

Lawyers for the province told the B.C. Court of Appeal those physicians exaggerate waiting times, manipulate wait-lists and want to provide private necessary health services that would destroy the country’s celebrated egalitarian public system.

Both the B.C. and federal governments asserted the future of Medicare depended on the high bench upholding a 2020 B.C. Supreme Court decision endorsing provisions in the Medical Protection Act restricting access to private care even though patients in lengthy surgical queues may be suffering.

They agreed the impugned provisions suppressed a parallel private market, made it uneconomical for doctors to leave the public sector and erected barriers to the provision of private necessary health services.

But they emphasized those were effects — the purpose of the provisions was to protect the public system, a beacon around the globe.

“Canadians consider equal and timely access to medically necessary health care services on the basis of need as a right of citizenship not a privilege of status or wealth,” B.C. lawyer Jonathan Penner crowed, quoting the final 2002 report by Roy Romanow’s Commission on the Future of Health Care.

“The purpose of the impugned provisions is fundamental, in my submission, to Canadians’ view of the fairness of their society.”

Only those who are “healthier and wealthy enough” will benefit if Justice John Steeves’s 880-page ruling is overturned, Penner argued, and their gain will come at the expense of those who rely on the public system: Wait-times will be even longer.

If private clinics win, he feared the province will be forced to impose an intrusive regime of “auditing and second-guessing” of physicians’ treatment decisions to ensure only eligible patients accessed private care, because doctors make those calls.

The idea doctors would accept that, Penner scoffed, is “fanciful.”

Over three days, the two governments denounced duplicative private health care saying it would increase overall demand and costs in both systems, create a second tier of preferential treatment for those who can pay, lure doctors, nurses and technicians trained thanks to taxpayer support that can amount to $1 million a year, and expose B.C. to federal penalties for not meeting Canada Health Act requirements.

In countries where physicians practice in a public system and provide private services, Penner said the vulnerable suffer and access to health care skews towards the “healthier and wealthier” because doctors preferred to work for more money in private clinics.

In B.C., he added, private clinics paid doctors two to four times Medical Service Plan rates.

Penner accused U.S. practitioners of taking advantage of affluent people who don’t need care, inducing demand, over-treatment, over-testing and over-hospitalization.

“Their income depends on it,” he claimed.

Penner said there would be a financial incentive not only for doctors to maintain lineups in the public system, but also steer patients to the private sector:

“The negative effects on the public system will become a self-fulfilling prophecy with doctors leaving to seek more work in the lucrative private sector.”

He pointed out that between 33 per cent to more than 50 per cent of doctors in some specialties in Ireland were caught nipping out of public obligations so they could bill more time in the private sector.

In Australia, he said, 40 per cent left the public sector for more lucrative private practice.

Penner reminded the court clinics such as Cambie Surgeries and Dr. Brian Day, the face of the constitutional challenge, had been flouting the MPA for more than 20 years, and perhaps worse.

“According to Dr. Day, in his sworn testimony, there were no written agreements between the surgeons and Cambie relating to those payments (for private surgeries),” Penner said.

“No documentation of the manner in which those payments were calculated. The amounts of the payments were tracked in Cambie’s accounting software in a category labelled, ‘Consulting-Pediatric,’ although none of the services being paid for related to either consulting or pediatrics. On that evidence, it was open to the trial judge to find that Cambie was not only engaged in illegal activities, but activities even Dr. Day admitted constituted fraud.”

Justice Steeves made no overriding or palpable factual errors and no mistake in his legal analysis, the government lawyer maintained.

“The only constraint on patient choice (in the impugned provisions) is a limitation on their ability to spend money, to obtain certain types of treatment more quickly than they otherwise might,” Penner said.

“There is no constitutionally protected right to spend money for whatever purpose.”

Regulating doctors was especially difficult, he noted, as physicians were proudly independent.

“No jurisdiction anywhere has been able to solve the problems caused by dual practice,” Penner concluded Friday.

He warned the court not to set up a parallel private system and provide “an incredible financial incentive for doctors not to put any effort at all into solving the wait time problem in the public system.

“If they do not work actively and purposely with others in the public system, the public system will never be able to solve the wait time problem. If physicians don’t want the system to improve, it won’t.”

In reply, lawyers for the appellant clinics and patients disputed the governments’ characterizations and comparisons and rejected the slurs that doctors were exaggerating or motivated solely by money.

Chief Justice Robert Bauman said: “It’s a very difficult matter, it’s a very important case and the court reserves judgment.”

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