A case in British Columbia’s Supreme Court is raising concerns that we might see an even greater private-pay health care market in Canada.
Ask a random Canadian if our health care system looks more like that of the United States or the United Kingdom. Chances are, most will respond that our system is nothing like that of the US — which is largely paid for privately — and every bit like the UK’s, which is publicly funded.
The reality is more of a cold shower.
When we look at data from the OECD comparing the health systems of the wealthy countries of the world, we see that Canada is well ahead of most peer countries in terms of private financing, with a whopping 30 percent of our health expenditures paid for through private health insurance or out-of-pocket spending. This is 50 percent higher than in the UK, where private health spending is at 20 percent, and three times as much as in France, where it’s only 10 percent.
A case in the British Columbia Supreme Court has some worried that we might see even greater development of the private-pay health care market across Canada. In the Cambie case, owners of the Cambie private clinics are challenging BC’s Medicare Protection Act, which limits patients’ use of private care and mandates that physicians must work in either the public-pay or the private-pay sector, but not both. The plaintiffs argue that these limits infringe on patients’ Charter rights.
For those with good memories, the Cambie case may be oddly reminiscent of the Chaoulli case, which unfolded more than 13 years ago. Jacques Chaoulli, an orthopedic surgeon, claimed that Quebec’s legislation restricting private duplicative insurance — private insurance for services already covered by the public plan — infringed on rights in both Canada’s and Quebec’s Charters. The Supreme Court of Canada did not reach a decision about the Canadian Charter right but ruled in favour of Chaoulli on the question of the Quebec Charter right.
To understand both cases and their real or potential impact, a reminder of the legal provisions that constrain the private purchase of health care in Canadian provinces will be helpful.
Doctors across Canada are prohibited from “extra-billing” or “double dipping”: charging patients for services already covered under our publicly funded medicare. Provinces are required by the Canada Health Act to enforce legislation with those prohibitions, or they may face clawbacks of the federal Health Transfer. This is what happened in BC, for instance.
In most provinces, doctors are also prohibited from working in both the public-pay and the private-pay health systems at the same time when providing publicly insured services. The concern is that such a “dual practice” could result in a conflict of interest, creating wait times in the public system in order to funnel patients to a more lucrative private practice. The bottom line: physicians in those provinces must choose to be either “all in” the public system or “all out.”
Like Chaoulli, the Cambie court challenge seeks to end the ban on duplicative insurance, but it also aims to break down the “all in” or “all out” dilemma for physicians, striking at the heart of BC’s legislation by targeting all constraints on extra-billing, opted-out practice and dual practice. This broad scope makes Cambie far more ambitious than Chaoulli was at the time.
Still, many were concerned when Chaoulli won, and Quebec responded with Bill 33, which opened the door to private duplicative insurance for a small number of otherwise publicly insured health services that had long wait times. While Bill 33 turned out to be fairly innocuous (largely because private insurers did not deem this a profitable venture and the new law applied only to Quebec), it nevertheless responded to the spirit of the court challenge, sending a powerful message that Quebec’s elected officials were, at least in principle, supportive of more private health provision and insurance.
Chaoulli should thus really be seen as a symptom of Quebec’s leniency toward the private sector, rather than a cause of the growth in Quebec’s private health market, now arguably one of the largest such markets in the country. In fact, the cause was more neglect by legislators — whether benign or strategic, and for decades preceding Chaoulli — that allowed several “hot spots” of privatization to flourish. They include private diagnostic services, which are reimbursable by private insurance in Quebec, but not elsewhere in Canada; physicians opting out of the public system in ever increasing numbers, year after year; and extra-billing, which was officially banned by the province only in 2017 (after threats of clawbacks of the federal Health Transfer).
While BC has historical trends similar to Quebec’s, we see no such benign neglect by BC legislators at present. Instead, the BC government appears to be fighting tooth and nail in the face of Cambie, pulling out all the stops to buttress the Medicare Protection Act. It even resurrected the Medicare Protection Amendment Act, a law passed but not enacted 14 years ago, in a deft counterpunch to give the province more powers to crack down on extra-billing.
With both sides firmly entrenched in their positions, it is unlikely that we will see a swift resolution to the Cambie conflict. Whichever side loses the court case is likely to bring it to the provincial appeals court, and from there to the Supreme Court of Canada, as happened with Chaoulli.
In other words, there’s still a long battle ahead. However, the Quebec experience suggests that the impact of the Cambie case on private-pay health care hinges critically on how forcefully and decisively the BC government signals its support of the Medicare Protection Act. The court decisions matter, but, at the end of the day, it will be provincial governments’ actions (or lack thereof) that open or shut the door to two-tier health systems across Canada.
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