Principle has to outweigh privilege in Canada’s imperiled health-care system By: Dan Lett Posted: 7:00 PM CDT Monday, Apr. 10, 2023 Last Modified: 8:40 AM CDT Tuesday, Apr. 11, 2023 Updates

Opinion

Hey there, time traveller!
This article was published 10/04/2023 (880 days ago), so information in it may no longer be current.

Another day, another Canadian court decision reinforcing the idea that no one in this country — no one — has the constitutional right to do or get something at the expense of someone else.

In this instance, it was the Supreme Court of Canada’s decision not to hear an appeal from two private surgical clinics in Vancouver that filed a constitutional challenge to the Medicare Protection Act, a British Columbia law intended to reinforce provisions of the public health-care system; in particular, the act preventing people from buying publicly insured health-care services privately.

B.C.’s Supreme Court dismissed the challenge three years ago and the province’s Appeal Court upheld that decision, prompting the applicants to seek leave to appeal to the Supreme Court of Canada.

The two private facilities and four patients had argued the B.C. law violated their constitutional rights by forcing them to languish on waiting lists when they could afford to purchase health services immediately. This, the applicants argued, amounted to a breach of the patients’ right to life, liberty and security of the person, a pillar of the Charter of Rights and Freedoms.

The B.C. courts noted that while having to wait for health-care services did pose a risk to some patients, it was justified within the confines of a system that helps people based on need and not ability to pay.

The decision to deny the applicants a hearing in the highest court in the land is not only legally and morally correct, it is also somewhat heartening that the laws guaranteeing universal health care have not been eroded by lobbying, ideology, politics or the personal agendas of jurists. In the United States, we’ve got ample evidence of how all of those forces can corrupt the rule of law.

The decision is also consistent with the posture that courts in this country have taken with libertarian citizens and their crusading attorneys who tried to challenge pandemic restrictions and requirements on constitutional grounds.

You can hear more than a little pandemic-era libertarian hogwash in the application filed by the Vancouver clinics and their patients. You know, the claim that I have a legal right to do whatever I want, whenever I want and nobody can tell me otherwise?

Fortunately, courts in this country have established, over and over again, that these arguments are perversions of the principles of democracy and constitutional rights.

Fortunately, courts in this country have established, over and over again, that these arguments are perversions of the principles of democracy and constitutional rights.

Still, you can see how the applicants may have thought that if there was any time in the country’s history when this kind of flawed argument might get an audience with the Supreme Court, this might be it.

Health care in Canada has been shaken to its core by a combination of the pandemic and government mismanagement of resources. Wait lists for many services have lengthened from weeks to months and years. Physician and nurses shortages have reached the critical stage.

For anyone stuck on a wait list for a priority elective surgical procedure or cancer treatment, a debate over the principles of constitutional rights and freedoms may seem superfluous. But the principle of need over ability to pay are critically important in all aspects of health care that provide a measure of fairness, even in a system that is having trouble meeting expectations.

In an emergency room at any hospital, people with broken arms or non-life-threatening lacerations wait hours for treatment for many reasons, but chief among them is a triage protocol that identifies those patients of greatest need. Waiting for hours to see a doctor is worrisome; but we endure because we know those people who face life-threatening health issues get seen first.

Of course, no system is perfect, and all of us can point to anecdotes where people of significant need got lost in the chaos. People who have cardiac surgeries delayed have died. People with subtle but still life-threatening conditions have been misdiagnosed and died.

Health care in this country has been stretched to the point of breaking. But we don’t improve things by allowing those who can pay to steal resources from a system created to help everyone, regardless of income.

Again, however, the general chaos that afflicts health care now, and the critical incidents that are sometimes caused by it, are not “solved” by allowing people to buy more health care privately. On the contrary, allowing people to pay out of pocket for priority health-care services will only prompt more chaos.

The biggest single factor driving wait times in health care is a lack of human resources. More specifically, there aren’t enough nurses to handle the volume of patients seeking care. And thanks to the aforementioned government mismanagement, fewer and fewer people are considering careers in nursing.

If the private health-care system is allowed to expand, there will be fewer physicians and nurses to work in the public system. That is not an extrapolation; it’s already happening as a result of the expansion of private surgical clinics and nursing agencies.

Health care in this country has been stretched to the point of breaking. But we don’t improve things by allowing those who can pay to steal resources from a system created to help everyone, regardless of income.

The Vancouver clinics and their patients wanted only to help themselves. Thankfully, the courts have denied them that.

dan.lett@winnipegfreepress.com