Will the B.C. government stand up to Dr. Day and protect health care for everyone?

Michael Butler
7 years ago

Today, health coalitions from across Canada are holding press conferences and a day of action (see here, here, here, here and here) to highlight the substantial implications and the threat to universal public health care that the current court case regarding the for-profit Cambie Surgical Centre, and its co-owner Dr. Brian Day, has for all of us.

I was on hand at Vancouver’s Cambie Surgery Centre (along with allies who are intervening in the case) demanding that the B.C. government hold this and other private clinics accountable for breaking the law. It is no exaggeration to say that the future of our public health care and a system that values all patients equally is at stake. This case could be the most significant constitutional challenge in Canadian history and could affect every one of us.

There are many possible outcomes to this case, but the outcomes that put the health of all Canadians first require some real leadership at the political level. Canadians across the country value their health care and demand real solutions to protect, strengthen and expand it. Today we are seeing people not only in B.C., but across Canada, calling on the B.C. government to take a strong position to uphold public health care law to its full extent and ensure full and immediate compliance of all clinics and physicians with B.C.’s Medicare Protection Act (MPA). The extent to which the province’s lawyers will push for an outcome that is not watered down, and future enforcement of the MPA, depends largely on the will of politicians. 


(Council of Canadians, BCHC and CDFM gathering in front of

the notorious Cambie clinic in Vancouver for press release)

British Columbians - and all Canadians - need to be assured that there are real and significant consequences for the past unlawful activities of those involved. As the province is currently negotiating a settlement with Cambie Surgery Corporation owner Dr. Brian Day, the outcome of this negotiation will determine the future of medicare in B.C. and will send a clear message to patients about whether or not they should receive equal care to those who pay their way to the front the of line. We have the right to demand that the government of B.C. stop turning a blind eye to two-tiered American-style health clinics operating in the province. We have a right to demand that our public health care system is protected and that everyone in Canada has the ability to access equitable, timely, quality care. We have the right to demand that a precedent is set to warn other health professionals that illegally profiting off sick and vulnerable Canadians will not be tolerated and those who attempt this will be prosecuted. We have the right to demand that our illnesses aren't commodified and that we all have access to care before profit. Democracy doesn’t only count on election day, and we need to remind the B.C. government of this.

“In order to protect patients from user fees, high costs, and growing inequality, the B.C. government must hold Dr. Day accountable for his violations of the laws protecting single-tier medicare and prohibiting extra-billing and user fees,” said lawyer Steven Shrybman, a partner at Sack Goldblatt Mitchell, who is acting for the BCHC and CDM in the court challenge. Shrybman says that if Dr. Day faces a light penalty for his practice of over-billing, it will send a message to for-profit health care operators that it is “open season” on this lucrative practice. It will also send a message to patients that they cannot trust public health care law to protect them.


(Lawyer Steven Shrybman joins OHC and CDFM in Toronto)

 

The Council of Canadians joins with our allies the CDFM and BCHC in believing that “if those harmed by Dr. Day’s clinics are to be treated fairly, and if others are to be deterred from breaking the law, the B.C. government must hold the clinics accountable for these violations. At minimum, the B.C. government should do so by:

  1. Requiring restitution to patients for the cost of services for which they were unlawfully billed at CSC and SRC.
  1. Conducting a full audit of the CSC and SRC (extending beyond the original period reviewed by the Medical Services Commission), and making that audit publicly available.

The 2012 Audit repeatedly referred to non-cooperation by the principals of the CSC and SRC who denied auditors access to the books and accounting records which they required for the audit. In light of the serious findings of endemic and unlawful billing at the CSC and SRC, we believe that the Commission must complete a full and comprehensive audit, and conduct audits of a wider period of time, so that those responsible may be held to account.

Auditing should cover the period from 2001-present, starting when patient complaints of extra billing were first made against CSC and SRC. Failing that, at a minimum, a comprehensive audit should be conducted from the time of the patient interveners’ 2008 legal petition to present.

  1. Requiring a commitment from Dr. Day and all physicians operating at his clinics assuring strict compliance with the MPA and
  1. Instituting a permanent injunction restraining CSC and SRC from contravening the Act (as sought by the Medical Services Commission’s counterclaim).
  1. Referring the cases of practitioners who have engaged in unlawful billing to appropriate disciplinary bodies.
  1. Requiring the practitioners, owners of the facility, or representatives of the corporations, to reimburse the Medical Services Commission for the cost of the audit; to pay the full costs of the law suit, including those of the public interest and patient interveners, to pay a surcharge on fees improperly billed, and to reimburse the province for the amount of any reduction in federal transfers to the Province made in relation to the extra billing and user charges levied by the CSC and SRC or those practicing there.
  1. Instituting a permanent injunction to restrain CSC and SRC from requiring beneficiaries to execute Acknowledgement Forms, such as is sought in the Auditor General’s Counterclaim, which also sought a declaration that these forms are void and unenforceable as being unconscionable, oppressive, unlawful, and inconsistent with public policy.

Finally, we urge the Medical Services Commission to proactively use its monitoring and enforcement role to ensure future compliance with public health care law in all of B.C.’s private clinics.”


Background On This Court Case

The catalyst for this case began in 2008 when a group of patients filed a legal petition seeking to have the provincial laws enforced that restrict the private billing of medical services which the Cambie Surgical Centre (Cambie) and the Specialists Referral Clinic (SRC) had been openly flaunting in contravention of the Medicare Protection Act.  Knowing that Canadians were becoming aware and outraged with this queue jumping for the rich, in January 2009, a group of for-profit medical clinics (led by Dr. Brian Day) launched a constitutional challenge against the B.C. government to try and keep their illegal and lucrative for profit-clinics open (it has been noted that these profits are well above even what the government and his own profession have identified as fair).  By doing this, the advocates of privatized two-tier health care, “have launched a direct attack on the single most important feature of the medicare model: that health care be provided according to a patient's need and not his or her ability to pay.” 

The Council of Canadians has written that Dr Day, “is taking the B.C. government to court using Section 7 of the Charter of Rights and Freedom. He contends that our public health care system is infringing on a person’s security, right to life and liberty when there is a wait time. Day argues that if you have the money, you should have the right to buy your way to the front of the line.” 

Private corporations - like these notorious clinics - do not need to disclose their financial records publicly (despite taking public money), and neither the profits nor the cost-effectiveness of Cambie’s services are known. But, as a result the Cambie and SRC medical practices being audited in 2012, we do now have more of a sense. It was found that, during a period of less than 30 days, almost half a million dollars in extra-billing had taken place at Cambie. It also appears that claims were submitted by the clinic at the same time to the Medical Services Plan for services provided to some of these same patients. In other words, “not only were patients unlawfully charged for insured health care services at CSC and SRC, but physicians in the clinics were doing so with the benefit of a very substantial public subsidy by submitting claims to, and receiving payments from the Medical Services Plan for services that ‘overlap’ with those for which patients have paid privately. “

So it is clear that very substantial sums of money are involved. Even with very limited sample gathered by the auditors over a period of less than 30 days, the audit found that $491,654 in extra billing took place, with overlapping claims being for at least another $66,734. To highlight, these egregious practices were found in just one month.

The cost to patients and MSP for the years this unlawful behaviour (breaching  s. 17(1) and s. 18(3) of the Medicare Protection Act) has continued to this day and the real cost to us all has yet to be exposed. To put it another way, if the 2012 audit results are representative of the regular practices of these clinics, then costs to patients, taxpayers, and are public health care system is likely in the hundreds of millions of dollars.

In 2013, Cambie and SRC submitted a Notice of Civil Claim and the province responded with a Response to Further Amended Civil Claim as well as three counterclaims by the MoH, AGBC and MSC. The MoH, in its counterclaim, alleged that, “there was a strong public interest in maintaining a fair, efficient, and cost-effective health care system and that the clinics’ unlawful billing practices both undermined this public interest and intentionally or recklessly caused economic loss to the province. The AGBC, in its counterclaim, alleged that the clinics’ practice of having patients sign “Acknowledgment Forms” is unconscionable, oppressive, unlawful, inconsistent with public policy and constitutes a public nuisance. In the final counterclaim, the MSC sought a declaration from the Court that Cambie and SRC have violated the Medicare Protection Act as well as interim and permanent injunctions to prevent Cambie and SRC from continuing to violate the Act.” 

While the case was supposed to being on September 8th, Day’s lawyers requested and were granted a 6 month delay. It is likely the case which will go to court in March 2015. While there are multiple reasons and thoughtful speculations for the cause of this delay, it provides an opportunity for us to, ‘to turn our attention to the blinding ethical discord that lies beneath the growing for-profit health care industry in Canada.”


So What Is This Case Really About?

What Dr. Day and other health privateers are up to isn’t about real solutions to health care challenges or providing people with choice; what Dr. Day really cares about is making more profit for himself. This reckless court case by Dr. Day and his financial backers is a calculated and strategic plans to use the courts to create a two-tiered US style health care system that will only benefit a small elite while substantially diminishing health outcomes for the rest of us. Looking past the smoke and mirrors, Dr. Day is seeking to erase from our laws the fundamental concept of care based on need, not ability to pay. Again, Dr. Day is not going to court because he wants to provide the best care. We know from a 30 day audit that he’s already unlawfully billed nearly $500,000 to patients and the BC health care system and now he wants to make millions more by removing pricing caps and allowing the free market to make as much profit off the sick and vulnerable Canadians as possible. He is in this for personal gain and profit. This is what the case is really about.

This case threatens health care for everyone in Canada. While private clinics are popping up across the country that appear to be violating the Canada Health Act by openly selling two-tier health care, B.C. remains ground zero for the proliferation of private clinics in Canada. So, even though the attack has been launched in BC, it takes aim at the very cornerstones of Medicare, mandated by the Canada Health Act, which have been put in place by every province.

There are other myths and outright lies that have been come out in the media surrounding this case.  The truth is, allowing wealthy patients to pay for faster care does not take the pressure off the public system.  As Maude Barlow, Monica Dutt (CDFM), and  Rick Turner (BCHC) outlined in an op-ed this year, “Doctors can only take care of one patient at a time, and when they are serving rich private patients first, they are not available to serve the rest of us, even when our need is greater,” and further that, “While the elite might get faster care, an abundance of evidence shows that for-profit hospitals reduce access to care for everyone else. Studies in Canada, Europe and the U.K. show that patients who can’t pay, and whose doctors work in both the public and private systems, have the longest wait times. Australian research shows that private, for-profit clinics drain the limited supply of doctors and other health professionals from the rest of the health-care system, lengthening waiting times for all but those who can afford expensive private insurance.”

If Dr. Day succeeds, this means that we will have to purchase private health care insurance for essential and emergency care like they do in the United States, and like the United States, many many people cannot afford this. In the U.S., private health insurance through employers costs $16,000 for an average family of four, with employees paying over $4,000 for family insurance, with a $2,000 deductible (so $22,000). In Canada, the actual cost of our public system insuring a family of four is half of that - $8,000, paid through our taxes. The administration of our Medicare system is just 1.3% of health care costs – while in the US, administration eats up 31% of health care spending. Two-tiered health care will mean more income insecurity for Canadian families. 3 of every 5 bankruptcies in the US are due to medical bills  and 69% of Americans who experienced medically related bankruptcy were insured at the time of their filing. This is the system of "choice" Dr. Day advocates. Further, beyond overbilling and double dipping at his clinics, we can also look at the fact that physicians at Cambie have been shown to charge some patients nearly six times the actual cost of a procedure. Dr. Day claims his constitutional challenge is about human rights, but it will do just the opposite for the human rights of the majority of us. This is the type of system Dr. Day and his financial backers are trying to create.

Further, it has been pointed out that, “services provided at boutique for-profit clinics like Cambie do not serve the majority of the population. In a context of rising income inequities this is particularly poignant, as an increasing proportion of the population can’t afford their steep premiums for care. They also provide a restricted list of services that don’t require complex care: largely opportunities for patients to jump to the front of the wait-lists to see specialists, and day procedures. Complex procedures or procedures for complex patients who need overnight stays, specialty medical or multidisciplinary care, simply aren’t as profitable, and so they aren’t offered. For-profit clinics like Cambie provide freedom for the wealthy to jump to the front of wait lists, while siphoning doctors and nurses from the public system.”

Barlow, Dutt and Turner in their op-ed also highlighted, “There is no evidence that private, for-profit care results in better outcomes. None. Anywhere in the world. Canadian studies show that for-profit health care has worse health outcomes than not-for-profit care. Evidence from the U.S. shows the same. If all the evidence shows that Dr. Day’s proposed changes will lengthen waits and create worse health outcomes, then what this case really comes down to is profit.” For profit clinics make public wait times longer for all of us.

Wait times and access to service are a concern to everyone.  What we need is real solutions and improvements to our public health care system that benefit everyone, not just those who can afford it.  It goes without saying we all care about our personal health care and want the best health outcomes; but paying to the jump the queue at clinics like Cambie (being subsidized by Canadian tax dollars and resources) is not a solution and has been proven to diminish the overall quality of care for the public.

What we need is to re-focus our discussion beyond a doctor who is using a court case to try and further line his own pockets and have a real evidence-based discussion working with health care providers and all levels of government to create better Medicare for all Canadians.  This is how we make improvements to reduce wait times that are efficient and equitable for all Canadians regardless of income. There are dozens of examples across Canada of innovative programs and projects that, “improve access, quality and cost-effectiveness, while protecting equitable access to care. The Alberta Bone and Joint Institute, for example, was able to reduce wait times from 11 months to 9 weeks for hip and knee surgery. Expanding public projects and efficiencies that have proven to reduce wait time, and continuing to innovate within medicare, represents the best future for the Canadian health-care system.”  We can also look at other factors and social determinants of health -like a shortage of acute care beds or community health centres or pan-Canadians health strategies- to make improvements to our system that benefit everyone.  

The real solutions are there. It falls upon us to demand our governments and leaders protect, strengthen and expand our public health care. This what poll after poll shows Canadians want and now more than ever we need to make out voices heard. The B.C. government has both an opportunity to hold these health privateers like Dr Day accountable and show a commitment to equitable health care solutions for everyone, now it is up to us to demand it.