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Ian Mulgrew: Final arguments, finally, in Big Brother medicare case

The plaintiffs call it the medical equivalent of Orwell’s Big Lie: that B.C. has the best health care system in the world and it’s egalitarian.

Indeed, the evidence shows operating rooms sit empty while surgeons twiddle their thumbs and waits for surgery and diagnostic services grow to historic lengths and a slew of exempted patients jump the queues.

The case took a decade to get to court and it’s dragged on for three years, but B.C.’s marathon medicare trial lurches back to life Monday after a hiatus, with lawyers making final submissions.

The plaintiffs — private clinics and a handful of patients — claim draconian provisions in the B.C. Medicare Protection Act should be struck down because they prevent people from paying for private health care to avoid waits for publicly funded care that endanger their health, or buying insurance to cover such care.

They argue the B.C. law violates sections 7 and 15 of the Charter of Rights and Freedoms and are not saved by Section 1, which allows “reasonable” limitations on freedoms.

B.C. Supreme Court Justice John Steeves must decide whether they’re right.

There is a library of documents and data entered as evidence but the case rests on a simple argument — though one plaintiff’s lawyer, Peter Gall, takes more than 500 pages to summarize it.

The constitutional challenge does not argue the province caused any harm, but rather that Victoria is preventing individuals from avoiding or alleviating the social, interpersonal and psychological harms of waiting for treatment.

The case was not about dismantling medicare.

Until the mid-1980s, the government funded all surgeries and did not restrict operating times, so effectively there were no lineups.

But ballooning health costs led to the rationing of services and restrictions on surgery that produced long waits that were already a crisis in the 1990s. The court heard some surgeons have so little operating room time they struggle to do enough surgeries to maintain their competence levels.

Dr. Brian Day, the face of the litigation, testified that health authorities and provincial Crown corporations, such as B.C. Hydro, paid for private surgeries for their employees, as have Canada Post and unions including those for nurses, plumbers, postal workers and boiler workers. The Cambie Clinic he helped found in 1996 has also provided private surgeries and services for judges and senators.

The Supreme Court of Canada has wrestled with the issues before, in a Quebec case known as Chaoulli. But t only the prohibition on private insurance, not the ban, as in B.C., on doctors practising in both the private and public sphere.

The majority struck down Quebec’s laws, so private insurance is allowed in Quebec for the three surgeries that had the longest waits. The sky did not fall. Medicare endures in la Belle Province.

For more than 20 years, private diagnostic and surgical services have been available in B.C., performed by specialists who are also enrolled in the public system, and the sky has not fallen either.

Despite being aware that private clinics were thumbing their noses at the law, the government did nothing until recently.

Although Chaoulli directly addressed the insurance issue, three other cases are at the heart of B.C. case — known as Bedford, PHS Community Services and Carter.

They focused on government actions that did not directly cause harm, but prevented people from helping themselves.

In Bedford, Criminal Code provisions against keeping a bawdy-house and living on the avails of prostitution prevented sex workers from taking steps to protect themselves from violent pimps, johns and other predators, such as by hiring security guards or ‘screening’ potential clients.

The situation in Carter was analogous — the impugned law prevented people from ending debilitating suffering through physician-assisted suicide.

Similarly, in PHS Community Services, drug abuse and addiction caused harms but the law prevented individuals from alleviating them.

All three were rooted in the precedent set in the high bench’s decision in Morgentaler, which struck down restrictions on abortions because they violated the security of the person.

In the medicare case, the same principle is at stake, the plaintiffs say — the law prevents people from taking steps to address their own health needs and avoid additional harm caused by waiting for treatment.

They maintain the government has taken a wrong turn — gone from ensuring that everyone has timely access to health care to deliberately erecting barriers to prevent people from obtaining access to care.

Provincial data from March 31 submitted in court confirmed none of the health authorities even came close to meeting the target of testing 85 per cent of patients needing colonoscopies within the maximum acceptable wait time.

Thousands of patients suffer and may have their chances at recovery compromised as a result of the delay for a critical diagnostic procedure — and the number is increasing every year.

The trial heard “non-acute” plastic surgery cases — vital procedures such as breast reconstruction following a mastectomy, facial reconstruction after facial palsy and mastectomies for those with a high likelihood of developing cancer — are often delayed.

There was evidence patients are enduring lengthy and harmful waits beyond the maximum acceptable waiting times for cataract surgery.

Victoria has outsourced many publicly funded cataract surgeries for years to private clinics in order to provide more timely care. Nonetheless, queues persist due to increasing demand.

Despite the focus on hip and knee surgeries, there was evidence B.C. has never come close to meeting the federal benchmark for replacement surgeries or the maximum acceptable waiting times for the more urgent patients.

The evidence showed adult and child patients waited well beyond the maximum acceptable time for a variety of spinal surgeries, with continuing pain and disability and, in some cases, substantial risk of permanent damage.

Waiting times for diagnostic imaging in British Columbia, such as MRI and CT scans, were said to be among the longest in Canada and much longer than in other OECD countries: Only 46 per cent were receiving their MRIs within the maximum acceptable waiting times.

Yet the newly proclaimed amendments to the B.C. Medicare Protection Act remove the option to get private MRI or CT scans.

The indictment went on and on. The system provides a reasonable level of care for many, especially emergency and acute care, but it fails many others.

There is the capacity to perform additional surgeries, but the government won’t or can’t pay for them.

In essence, the court is being asked to stop the government from denying you the right to pay for your own better health or buy private insurance to do the same.

Final submissions are expected to run into next month and Steeves to deliberate into next year.

imulgrew@postmedia.com

twitter.com/ianmulgrew

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