Category "Human Rights"


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

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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.




British Columbians pack meeting to help develop accessibility law

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Thousands of disabled British Columbians are contributing ideas for legislation to make the province more accessible, including a large group that packed into a community meeting Saturday in Vancouver.

More than 150 people turned up for the public consultation session at a downtown hotel where Shane Simpson, Minister of Social Development and Poverty Reduction, asked them about the barriers they have experienced, what they think about framework proposed for the legislation, and how his ministry can improve it.

The province’s framework shows how the legislation could work by including standards for service delivery, employment, information and communication, and transportation, according to the document.

At Saturday’s meeting, Olive Olajide and Esther Wien, friends who live in Vancouver, said they came to hear how the legislation is progressing and what barriers it will remove.

Olajide, 78, uses a power wheelchair and said transportation is a major issue for her. She is mostly satisfied with the accessibility of public transit in Vancouver but said newer buses have been “terrible.”

She can’t use her right arm and must rotate her wheelchair to scan her Compass card, so a second scanner left of the door would help. The buses have less space, so she suggested bus drivers be given a pre-recorded announcement to play when a person using a wheelchair needs to board or disembark.

“People get on when you’re trying to get off, everybody has to be first,” she said. “Sometimes I have to fight with people.”

Olajide lamented that many public buildings in the city do not have automatic door openers, including her doctor’s office.

Wiens, 64, said people with invisible disabilities like her tend to be ignored in discussions by government about accessibility.

She suffers illnesses such as fibromyalgia, osteoarthritis and chronic fatigue syndrome, but is not allowed to move into an accessible unit, of which there are far too few in the city, she said.

“People say, ‘Look, you look totally able-bodied, therefore you can handle stairs,’” she said. “I cannot.”

Home-support services for disabled people have also been neglected, Wiens said.

“Right now, they are geared only toward frail, elderly seniors, not physically disabled (people),” she said. “That’s a big oversight, as far as I’m concerned, because we have rights under the United Nations Convention on the Rights of Persons with Disabilities which are being totally disregarded.”

Bill Conway, from Sechelt, said he even faced barriers in the hotel on his way to the meeting with his guide dog, DA Chief, including hallways packed with trolleys.

Conway said he has visited hotels with elevators which do not have Braille labels on their buttons. Grocery and drug stores have replaced human cashiers with self-checkout machines which have touchscreens he can’t use. Businesses have refused to allow DA Chief to enter, breaking the law.

Strong enforcement is key to making the legislation work, said Conway, who is the 2nd vice-president of the Canadian Council of the Blind’s B.C.-Yukon division.

“The District of Sechelt where I live has adapted an accessibility building code and we are finally getting contractors to recognize it, but to have the government enforce it, that’s the right thing to do,” he said.

B.C.’s framework says the legislation could require an accessibility directorate responsible for overseeing progress and helping organizations comply with the legislation and standards. A standards development board could be responsible for development and revision of the standards. An accessibility commissioner could be responsible for ensuring compliance and enforcement.

Those who fail to comply could face monetary penalties. In Manitoba and Nova Scotia, the maximum fine is $250,000.

The federal government passed Canada’s first national accessibility legislation in May, meant to “identify, remove and prevent” accessibility barriers in areas that fall under federal jurisdiction. Those include built environments, federally run programs and services, banking, telecommunications and transportation that crosses provincial lines.

That legislation, however, doesn’t address barriers within provincial jurisdiction. Manitoba, Ontario, Quebec and Nova Scotia have passed accessibility laws, and Newfoundland and Labrador are developing their own, too.

But B.C. — where more than 926,000 people over the age of 15 have some form of disability — has lagged behind. The government here says the legislation would help it work with disabled people and everyone else to identify, remove and prevent barriers.

Simpson’s ministry began collecting feedback by phone, online and at public meetings on Sept. 16, 2019, to guide the development of the legislation, and will continue to do so until the end of this month.

Simpson, who is attending all 10 community meetings, said his ministry began groundwork on the legislation about a year ago, in anticipation of the federal legislation passing. They’ve received thousands of surveys since consultation began and gained valuable knowledge.

“We’re starting to hear that education probably needs to have a bigger role than we had originally thought,” said Simpson, MLA for Vancouver Hastings.

Businesses and local governments are showing that they will commit to the legislation and want it done right, he said.

“I think that the time is right to make these changes that will create an opportunity for people to have a better life, both in terms of their standard of living but also their opportunity to take advantage of all the things that you and I take advantage of every day, in our day-to-day lives, that aren’t necessarily available to people with disabilities,” Simpson said.

Simpson said he wants the legislation to be tabled in the fall of 2020.

The next in-person community meeting is in Kamloops on Nov. 12. Public consultation is open until 4:00 p.m. on Nov. 29, 2019, and details about providing feedback can be found at engage.gov.bc.ca/accessibility.

— With files from The Canadian Press



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Nova Scotia says it won’t appeal accessibility ruling by human rights board – Halifax

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The province says it won’t appeal a Nova Scotia human rights ruling that it discriminated against people in wheelchairs by failing to enforce a regulation requiring restaurants to have accessible bathrooms.

The independent board of inquiry said in a decision released in September that the province did not regulate food safety provisions on accessible washrooms in restaurants with patios.

READ: ‘Accessible washrooms should include everyone’: N.S. human rights inquiry begins

Chairwoman Gail Gatchalian ordered the Environment Department to interpret, administer and enforce the regulations as they appear.

The Justice Department says it will fast track an action plan to ensure the human rights decision is implemented in a timely fashion.

WATCH: Nova Scotia’s Accessibility Advisory Board holds inaugural meeting in Halifax

It will be developed in collaboration with the disability community and the restaurant industry.

The department says its effort will be supported by the newly established Accessibility Directorate and the Nova Scotia Accessibility Advisory Board.

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