Ian Mulgrew: B.C. medicare challenge more black eye than Broadway
Credit to Author: Ian Mulgrew| Date: Tue, 19 Nov 2019 00:53:13 +0000
The B.C. government predicted it would be only political theatre but, as it draws to a close, the marathon medicare constitutional trial has become an indictment of the health care system.
Lawyer Peter Gall on Monday said the rhetoric — two-tiered medicine, private doctors skimming the best patients and the potential collapse of medicare — was fear mongering.
“All of this is speculation,” Gall said, noting there was widespread access to private care for 20 years before government began enforcing provisions of the B.C. Medicare Protection Act that restrict access to private care.
“All we have is hypothetical fears … not based on anything that has happened in the last 20 years. None of these concerns have arisen over the last 20 years. The government acknowledges there is no problem,” he said. Private care “just relieves some of the pressure on the public system.”
Victoria’s defence was an attempt to muddy the waters and distract the court, without evidence to support its trampling on the rights of patients, Gall said as he began his closing arguments on behalf of those challenging the law, led by Dr. Brian Day of the Cambie Surgery Centre.
“It’s far from political theatre, Gall told B.C. Supreme Court Justice John Steeves. “It’s a serious, very serious constitutional case. We did not lead all this evidence about harms suffered or avoided by patients for the purpose of embarrassing the government or as a lobbying measure to try to encourage the government to improve the public system.”
Gall said it wasn’t enough for the province to talk of vague risks when it was limiting constitutional rights. There must be a compelling reason to force some people to endure suffering and perhaps even death, he said.
“There is no evidence to date of any detriment or harm to the public system” from private operators that would justify the prohibitions on access to private care.
He said the evidence instead confirmed excessively long waits for diagnostic treatment and surgery caused physical and psychological suffering and potentially irreparable harm to patients.
“These harms have all been proven through direct evidence from patients, from their physicians, and from experts who explain the medical consequences of waiting,” Gall said. “They have also been confirmed by the wealth of systemic data that has been led in this case.”
He added that the persistently long queues in the public system showed the government was unable to alleviate harms that could be avoided by access to more timely treatment. And he said even the government acknowledged that reality.
Although the two provisions of the law under challenge have existed for 20 years, only recently has the NDP administration moved to enforce them — enforcement held in abeyance by an injunction until the three-year-old case reaches a conclusion.
“The evidence, in this case, shows that allowing access to private diagnostic and surgical services in the province … will not harm the public system or deny any patient of access to care in the public system,” Gall insisted.
Every other industrialized nation with universal health care, except Canada, has a parallel private care system, he said. “It would be different if the government came along and said look at what happened in the last 20 years and we have to do this. But nothing happened.”
Experience has proven that private treatment is an essential component of the system, Gall asserted, because it allows patients to alleviate their suffering and protect their health in the face of lengthy waiting times.
Notably, he said, the overall number of scheduled surgeries has not increased, despite many government initiatives and significant investments particularly over the past 10 years.
There was no factual or legal rebuttal by government to the plaintiffs’ complaints in the lengthy trial, Gall averred: “It’s not they have found a magic solution to wait times. … They’re not saying that. In fact, they have to admit they have no solution, this is going to be an ongoing problem.”
The government claim that failure to enforce the prohibitions would cause the public system to collapse has been disproven by the experience in B.C. and in other countries, Gall said.
“There is no compelling reason to deny patients the right to access private diagnostic and surgical services.”
A ruling in favour of the plaintiff clinics and patients would not mean any radical change to the B.C. health system, the lawyer assured the court, but only maintain the long-standing status quo.
If they lose, however, Gall said the harms would increase as doctors stopped providing private diagnostic services and care.
He will require the rest of the week for his summation; the two governments and interveners involved will then present their final arguments.
Steeves is expected to begin deliberating by Dec. 6.