Jenelle Schneider/Vancouver Sun

Medicare On Trial

“Kiss goodbye to healthcare as we know it”

By Linda McQuaig

An epic battle is underway in a Vancouver courtroom, with doctors, patients and experts clashing over how best to meet the healthcare needs of Canadians. Less visible—but nonetheless central to the trial—is a set of corporate interests that look at the medical needs of Canadians and see something else: lucrative possibilities. Indeed, for all the talk about wait times and improving patient care, what’s really driving this trial is the determination of two for-profit medical services companies to strike down healthcare laws that restrict their business opportunities.

The two Vancouver-based companies—Cambie Surgery Centre and Specialist Referral Clinic, both headed by CEO Dr. Brian Day—have spent about a decade embroiled in the bitter legal dispute now being heard in the BC Supreme Court. If Day and his companies succeed, their victory would fundamentally change the rules governing the most cherished public program in Canada, opening the door wider than ever to US-style private healthcare.

Or as Colleen Fuller, a health policy researcher with the Canadian Centre for Policy Alternatives, puts it: “If [Day] wins, you can kiss goodbye to medicare as we know it.”

What’s at stake was underlined last April when, in a surprise move, lawyers for the federal government appeared in court requesting intervener status in the proceeding so that Ottawa can help defend Canada’s popular medicare system against this private-sector challenge. Day, an orthopaedic surgeon, past president of the Canadian Medical Association and a medical entrepreneur, is the key protagonist in the case. But he is not alone; he represents a growing industry of hundreds of for-profit clinics and surgical facilities across the country that have been quietly changing the face of Canadian healthcare.

The BC and federal governments’ willingness to stand up to Day is long overdue. For years, says Fuller, for-profit clinics and surgical facilities in Canada have been routinely overcharging patients, contrary to federal and provincial healthcare laws. But governments have been timid in clamping down. This reluctance to enforce the principles of medicare has been particularly pronounced in Alberta, according to Sandra Azocar, the Edmonton-based executive director of Friends of Medicare. “We had the same [PC] government here for 44 years,” says Azocar. “They were bent on achieving two-tier medicine.”

Private medicine is well entrenched in Alberta, which has more than two dozen for-profit diagnostic clinics. Patients who pay the extra fees to have their pre-surgery diagnostic testing done at such clinics can get their results much faster—reportedly in a few days—whereas it might take six to eight weeks at a public hospital, according to Azocar. Since patients can’t have their surgery until their diagnostic results are ready, those who have paid extra to get them done quickly move to the front of the line.

Azocar is also disturbed by the emergence, particularly in Calgary, of “concierge clinics” which offer executive healthcare packages for fees of up to $10,000 a year per family. Clients of these private clinics can end up with faster access to doctors in the public system too, Azocar says. “This has moved beyond ‘professional courtesy’ to blatant queue-jumping.”

In May 2016 Alberta finally decided to audit one such “concierge clinic,” the Calgary operation of Copeman Healthcare Centre, after a CBC investigation revealed that the clinic billed the province for tests that its own doctors considered unnecessary. Health Minister Sarah Hoffman told the legislature, “We will not allow excessive billing practices that undermine Albertans’ access to universal public healthcare.” But if Day has his way, and his victory is upheld in a possible appeal to the Supreme Court of Canada, the province may not have any choice in the matter.

This—access—lies at the heart of the Day case. Like many conservative politicians, the BC doctor has been careful in how he presents his challenge to medicare, maintaining that it’s about protecting the rights of patients, who he says are “suffering at the hands of our current health system.” He wants the court to strike down limits on private payment for publicly insured services, insisting that such laws violate a patient’s rights, protected under the Canadian Charter of Rights and Freedoms, to “life, liberty and security of the person.”

But Fuller rejects this interpretation. “This isn’t about a patient’s right to pay; it’s about a doctor’s right to charge,” she says. Or, in the words of Karen Palmer, an adjunct professor of health policy at Simon Fraser University, Day is trying to win “a constitutionally protected right for doctors.”

Under BC laws, which reflect federal laws, doctors practising in the public system can’t charge fees higher than those set by government. If they want to charge more, they must opt out of the public system entirely, in which case they can charge whatever they want. Day is fighting for the right for doctors to stay in the public system—with all the financial security it offers—but also to be free to charge patients any extra amount they wish. He calls this a “hybrid” of public and private.

Canadian Doctors for Medicare (CDM) characterize it as “having his cake and eating it too.” The real problem with this “hybrid,” they say, is that it threatens the key feature of medicare—equitable access—by allowing speedier access for those who pay.

Dr. Warren Bell, a BC family physician with the group, described what happened when he referred one of his patients to a specialist for shoulder surgery. The surgeon’s office told the patient he’d have to wait 14 months, then suggested he try the surgeon’s “private office.” There, the patient was told he could see the surgeon in two weeks—if he paid $500. While such practices already occur, with the clinics operating in a grey zone, they could become a lot more common—even the norm—if Day wins his case.

CDM argues that medical need, not money, should determine who is at the front of the line, and that allowing some patients to pay for faster access results in slower service for others. “[Day] has no apparent regard for all the other patients who have suffered or been harmed because they can’t afford the fees he and his colleagues charge at his private-pay clinics,” says the group.

Some of his patients also apparently resent the hefty fees. Indeed, while Day presents himself as a champion of patients, his current court battle began as a result of patients complaining about his fees. It started back in 2007, when dozens of patients filed complaints with BC’s regulatory body, the Medical Services Commission. In response, the commission notified Day in April 2008 that his clinics would be audited.

But before the audit got underway in January 2011, Day struck back, launching his court challenge against laws restricting what doctors can charge patients for medical services. The gambit worked, initially at least. The media focused on Day’s court challenge, portraying it mostly sympathetically, and downplayed the fact he was also under investigation for overcharging patients.

Meanwhile he fought the audit and convinced a judge to have it temporarily stayed. But, after years of legal wrangling, the audit was eventually conducted and produced some striking findings: Over a period of less than 30 days, Day’s two facilities had charged patients nearly $500,000 in unlawful billings. In addition the audit found almost $67,000 in apparent “double-billings”—that is, billing both the patient and the government for the same medical service.

The Day case is central in what has become a fractious ideological and moral battle over healthcare. The Vancouver doctor has emerged as a darling of the Canadian political right, which has long yearned to rid the country of the “scourge” of universal public healthcare. Among Day’s supporters is the Calgary-based Canadian Constitutional Foundation, a fiercely anti-government group whose board includes Michael Walker, founder of the libertarian Fraser Institute. The foundation, which has charitable status, raises money for Day’s legal challenge on its website, offering tax receipts for donations.

Meanwhile, lined up against this anti-government crowd are a number of pro-medicare groups—which are considered advocacy groups and therefore are denied charitable status. So, while you can get a tax receipt for a donation to fight medicare, you can’t get one for a donation to save medicare.

This is highly ironic, if not ridiculous, since medicare enjoys strong support among Canadians. With its guarantee of equitable access to healthcare for all, medicare is widely regarded as one of the finest aspects of Canada. The profound difference between our public healthcare system and the mostly private US system—where millions of citizens are still effectively denied medical care—has long been a source of Canadian national pride. In 2004, after weeks of a highly publicized national contest by CBC-TV, Canadians voted Tommy Douglas, father of medicare, the greatest Canadian of all time.

So politicians have treaded carefully on this sacrosanct ground. Even Stephen Harper—who once headed the National Citizens Coalition, a conservative group founded to fight medicare—proceeded cautiously against public healthcare after he became prime minister. While avoiding direct criticism of the public system, he unilaterally changed medicare’s funding formula in a way that would deprive provincial health budgets of $36-billion over the next decade. He shut down the Health Council of Canada in 2013, which had reported on health outcomes and researched best practices and innovation.

Fuller argues that Harper’s “drastic funding cuts” must be cancelled, effectively restoring the $36-billion over the next 10 years. She and other medicare advocates insist that Ottawa should more actively oversee medicare and pick up a larger share of the bill, rather than pushing so much of the burden onto the provinces. Back in the late 1960s Ottawa paid half the cost of medicare, but today it pays only about 20 per cent. Advocates want to see the federal portion raised to at least 25 per cent.

Prime Minister Justin Trudeau certainly seems more supportive of medicare than Harper was, and he has resumed negotiations with the provinces over health funding. It’s not yet clear, however, if Trudeau will fully restore Harper’s $36-billion cut.

The financial benefits of opening up medicare to the free market are potentially immense for those selling medical services, as Day himself has noted. In a quote attributed to him on a California medical association website in 2006, Day said: “The coming changes will create a massive new industry and enable the Canadian health industry and its workers to enter the international health market and participate in the $2-trillion American health economy.”

Certainly, Day’s motivation seems to be at least partly about getting a piece of this booming international market in medical services for the rich; Cambie’s website boasts that it attracts “many famous celebrities and athletes” from around the world. He insists, however, that his patients are mostly working people, including those whose surgeries are paid for by the provincial workers’ compensation program.

Years of tax-cutting by provincial and federal governments set the stage for Day’s case, eroding government revenues and leaving many Canadians convinced that public healthcare is no longer affordable. But while many Canadians have been led to this conclusion, it’s actually private, for-profit medicine that is unaffordable. The publicly funded portion of Canadian healthcare spending—covering doctors’ fees and hospital stays—is not out of control. These costs amount to about 4 per cent of GDP—just as they did in 1980.

What is out of control, however, is the part of our health costs not covered by medicare—drugs, physiotherapy, home care, vision care, dentistry etc. Our spending on drugs, for instance, has been rising at the rate of about 8 per cent a year above inflation, as brand-name companies introduce ever more expensive drugs. Numerous studies—including the recent UBC-led “Pharmacare 2020: The Future of Drug Coverage in Canada”—have shown that Canadians could save billions of dollars a year if we had a publicly funded, universal, comprehensive pharmacare plan, as most other advanced nations do. Under such a plan we might pay slightly more in taxes (initially at least), but ultimately we’d save money because we’d get all medically necessary drugs free of charge and could avoid the expensive complications (including ER visits) that arise when people avoid medications due to cost.

Day argues that the changes he’s trying to bring about would move Canadian healthcare closer to the European model, which includes some private funding. But Palmer notes that European countries have strong public healthcare systems. “If we want to be more like Europe,” she says, “we should increase funding for public healthcare.”

In Canada, roughly 70 per cent of healthcare costs are publicly funded, leaving Canadians paying privately for more than 30 per cent—including drugs and physiotherapy. By contrast, in the UK, 84 per cent of healthcare is publicly funded, and in France the public sphere covers 77 per cent. The UK’s per capita health cost is US$3,935—or nearly 26 per cent lower than Canada’s US$5,292 cost. (The US, meanwhile, with only 48 per cent public health coverage, has one of the highest per capita healthcare costs—$9,403—in the world.)

If controlling healthcare costs is the goal, then extending the publicly funded portion of our healthcare system—not throwing the system wide open to private medicine—is the way to go, says Palmer.

Certainly, extending the public sphere is the way to prevent our healthcare system from becoming more like the one in the US, where the rich have always been able to buy their way to faster and better medical care. To many Canadians, resisting the US model is paramount. What we seem to value most about medicare is its rejection of special privilege. Paid for through our taxes, it guarantees all of us access to medical care, no matter how rich or poor we are.

And that’s unusual in today’s world of hyper-privilege. Evidence of elitism surrounds us these days. Travelling on Air Canada, if you’re not Super-Elite or at least Elite, you’re left feeling unworthy, uncertain whether you should even be flying. At movie theatres, you can skip lineups by paying more for a VIP screening room; at amusement parks, you can buy a “fast pass” that lets your child get on rides ahead of other kids who are just as eager to climb on board but are obliged to wait.

It requires determination and resolve to resist the way our culture panders to those with money. Medicare may be Canada’s last real bastion of equality in an age where the rich can buy their way to the front of just about every line. It’s a sprawling public system in which money counts for nothing. You can spend weeks in a Canadian hospital, getting sophisticated care for the most complex medical problems and emerge at the end without owing a penny! How bizarre, how utterly unlike the rest of the corporate world we inhabit.

Dr. Brian Day and other medicare critics deride our public system by noting that in Canada a dog can get a hip replacement faster than a human can. And they’re right—because veterinary care isn’t based on principles of equity but on market principles; with enough money, you can have anything you want as soon as you want it.

On the other hand, if an owner can’t pay, the dog is put down.

No wonder the trial going on in Vancouver is so passionate and intense. In many ways, it’s a fight for the soul of Canada.

Linda McQuaig writes an op-ed column in the Toronto Star. She is the author of nine books on politics and economics.

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