Anti-privatization Issues

On April 6, 2023 the Supreme Court of Canada dismissed Cambie Surgeries Corporation’s application for leave to appeal ending a 14 year-long legal battle that threatened to overturn key provisions in the BC Medicare Protection Act that ensure equitable access to medically necessary services.

The Supreme Court of Canada’s dismissal upholds the decisions at the BC Supreme Court and BC Court of Appeal that protected key principles ensuring patients are prioritized based on medical need and not ability to pay. In fact, the BC Supreme Court’s landmark decision based on extensive evidence made clear that  allowing doctors to provide preferential access to patients who can afford to pay privately would increase inequities for those who may not be able to pay but who have greater need.

Cambie Surgeries CEO, Brian Day, launched this constitutional challenge against public health care in BC in 2009. After dozens of patients complained that they had been illegally extra-billed at Cambie Surgeries Clinics, the Medical Services Commission (MSC) audited Brian Day’s clinic. The audit revealed that Day’s clinic had overcharged patients by almost half a million dollars in just a 30-day period. 

Instead of paying back the money his clinics illegally extra-billed, Brian Day marshalled a group of private, for-profit clinics and a few of his patients to file a constitutional challenge.

The corporate plaintiffs sought to make health care more profitable by striking down key protections in BC's Medicare Protection Act (Sections 14, 17, and 18). These provisions maintain private and public health care as two separate systems with no financial connection, and limit preferential access to essential health care services for financial gain.

While the appellants argued that long wait times for surgeries infringe on an individual’s charter rights, the actual issue at the centre of the case was whether private for-profit clinics could bill patients for medically necessary and publicly insured procedures. In other words, Cambie and its supporters were hoping to strike down key provisions in the BC Medicare Protection Act that would allow the public system to subsidize profits for private surgical clinics and their shareholders.

However, the BC Supreme Court found that duplicative private health care would not reduce wait times in the public system, and instead make them worse. In addition, the court found that a private pay system would undermine equitable access to care by essentially allowing people who have the ability to pay to cut to the front of the line, not actually fix the line. The BC Supreme Court of Appeal confirmed these findings.

Had this case advanced to the Supreme Court of Canada, the outcome would have certainly impacted all provinces and territories. The rules the plaintiffs sought to strike down go beyond BC’s Medicare Protection Act and had the potential to undermine the Canada Health Act and every provincial health care insurance plan.

To be clear, Cambie and other for-profit surgery clinics can continue to operate. But they can’t rely on the public to subsidize their profits. If this case was truly about the impact of long wait times on patients, surgical clinics can choose to continue taking patients willing to pay out of pocket without the profit margin.

While the Supreme Court’s dismissal is a victory for the stakeholders who fought tirelessly for 14 years, the threat of for-profit delivery continues in British Columbia and beyond. The BC Health Coalition and our allies are committed to continuing to advocate for public solutions to our health challenges that seek to address the root cause of the issue. 

For a deeper look into the Cambie case, visit www.savemedicare.ca.

Private clinics have taken over services formerly provided on a non-profit basis in public hospitals, they have bolstered their owners’ incomes and profits by charging extra user-fees to patients amounting to hundreds or even thousands of dollars for medical care. For patients, costs have risen and user fees have proliferated. And as clinics have gained an expanding foothold, they have grown more aggressive. In some cases they are flagrantly charging patients for services for which they have already paid in their taxes, in violation of public medicare laws. In some cases they are double- dipping -- billing individual patients and public health plans for the same procedures. Dangerously, private clinics have institutionalized the practice of co-mingling medically needed services with medically unnecessary tests and procedures to sidestep Canadian laws that prohibit extra user fees for patients.

Corporations are moving aggressively into virtual primary care including through apps that operate as virtual walk-in-clinics undermining continuity of care. Patients and physicians are turning to these models due to unmet needs in the current system; however, these models will result in negative outcomes on health outcomes, privacy, and societal inequality. Some of the issues identified with virtual care are:

• Inequitable infrastructure & delivery - the pushing of virtual care services leads to issues of inequity as some populations have trouble accessing virtual care especially if that care is not grounded in existing care provider relationships. In addition, the draining of physicians from the public system into private virtual care platforms creates even more demand for the majority of patients. 
• Poor clinical outcomes - virtual care not grounded in existing or new long-term care provider relationships lead to worse outcomes for patients as there is less follow-up and less attention paid to the social determinants of health for patients. For-profit private providers do not share information with long-term or existing care providers leaving gaps in patient knowledge and follow-up
• Monetization of patient data - for-profit operators are entering the virtual care space seeing profit to be made out of not only providing services to patients but also to monetize patient data. These for-profit operators are not accountable to the public on how patient data is stored or collected.

The symptoms of Canada’s strained health care system are well known by now. We see headlines about the shortages of doctors, nurses, and allied health professionals. Burnout rates, already a problem before COVID-19 hit, are reaching new highs. For patients, delayed or missed health care services resulted in 4,000 excess deaths in the second half of 2020 alone.

Decades of austerity cuts, underfunding, and neglect by conservative governments have not left Canada’s healthcare system prepared for the pandemic’s sustained pressures. In response to a crumbling system, Canada’s right-wing establishment is prescribing more of the same failing treatment: private health care.

We’re seeing a new wave of pro-privatization discourse in the media as provinces move their privatization agendas forward. Alberta, Ontario, Saskatchewan have all announced plans to outsource surgeries to private providers, a strategy already in use by the B.C. NDP-led government to clear its surgical backlog.

Private for-profit hasn’t worked

Contracting out surgical services to private companies is at best a short term measure, but evidence shows it to be counter-productive in the long run.

Evidence shows that outsourcing surgeries to private for-profits leads to:

• Higher costs for the public to as compared to the public system where profits margins are not factored in. Back in 2016, BC’s plan to pay for-profit clinics for MRIs was nearly twice as expensive as the same service within the Vancouver Island Health Authority.
• Lower quality and less safe services. Both Canadian and international experience shows that private for-profit facilities often cut corners to reduce costs, including hiring fewer and less skilled personnel.
• A rise in inappropriate surgeries, when a clear profit motive drives recommendations for more and more expensive surgeries. Private, for-profits also have an incentive to take on easier surgeries, leaving the public system with more complex cases.
• A drain of health human resources from the public system, as profit incentives pull from the same limited pool of health professionals.
• No improvements to wait times. The 2010 Saskatchewan Surgical Initiative, which made use of chartered facilities, showed a slight reduction of wait times in the short run but an overall increase in wait times in the long run.

In summary, private facilities are a band-aid measure for a strained public system. Heather Smith, president of  the United Nurses of Alberta, cuts to the heart of the matter: “You pull staffing, resources, and you further hamper the ability of the public system to deliver… Then you say, the ‘public system has failed, and we have no choice’”.

Public policy works

Decades of bad public policy have led to the erosion of our healthcare system. While pro-privatization pundits argue this is because of government’s inherent inability to build a functioning healthcare system, it can also be seen as a story of policy that was very successful in achieving intended outcomes.

In a recent opinion piece, Dr. Brian Day, the private surgeon who has lost a legal challenge to B.C.’s ban on extra billing, user fees, private duplicate insurance, admits that today’s shortage of doctors and nurses is the result of an intentional policy direction dating back to the 1990s. The flawed opinions at the time suggested that rising health care costs were due to the over-supply of healthcare services.

The proposed solutions – closing nursing schools, cutting medical school admissions, reducing hospital beds, closing hospitals, and denying immigrant doctors the right to practice – were highly successful in shrinking the supply of healthcare services.

The real winners of these policies have been doctors. With the supply of doctors restricted, the medical profession was able to maintain a powerful hold over the health care system. Demand for their services meant they could maintain the prestige and high incomes of their profession. Today they still continue to use this power to push for policy that protects their profits, such as extra billing, user fees, and private duplicate insurance.

Time for a public sector strategy

If our goals are to ensure equitable and timely access to health care services, then we already know what policy solutions will get us there.

We need a health human resources strategy to recruit, train, and retain health professionals for our public system. This should include the full team of health care providers. Diagnostic imaging technologists, prehabilitation and rehabilitation staff are as essential to the surgical journey as surgeons and nurses. In B.C. these professions have been chronically understaffed.

While no research shows that introducing for-profit health care into a public system works, there is solid evidence in support of proven public solutions, including:

• Fully utilizing existing public operating rooms
• Adopting a “first available surgeon” waiting list management model
• Scaling up innovative pilot projects like the Richmond Hip and Knee Reconstruction Project
• Expanding “one stop shop” patient assessment clinics that make use of multi-disciplinary teams
• Improving access to community and home care

Governments have been gutting the public healthcare system for decades, creating the scenarios that, on the surface, seem to justify allowing private actors to save the day. To fix this, we need a new set of government policies that will reverse the trend by investing in a systematic human resources and capital investment plan, bringing our public system’s capacity back to sustainable levels.

The future of surgical care in BC is at a crossroads. Over the past decade, surgical wait times have increased significantly.  BC leads the country in longest wait times for vital procedures such as hip replacement, knee replacement and cataract surgeries. 

In order to meet this challenge, we need innovative and public solutions that are consistent across the province to ensure everyone has access to the quality care that they need.

Public Solution to Wait Times Fact Sheet

Reducing Surgical Wait Times Solutions Series (CHC, 2023)

The Concerning Rise of Corporate Medicine (CCPA-BC & BCHC, 2022)

Reducing Surgical Wait Times (CCPA-BC, 2016)

For more information on contracting out, read our blog post here.