A male patient is prepped to have a cyst removed from his right knee at the Cambie Surgery Centre, in Vancouver on Wednesday, August 31, 2016. Dr. Brian Day, a self-styled champion of privatized health care, is bringing his fight to British Columbia Supreme Court on Tuesday for the start of a months-long trial he says is about patients’ access to affordable treatment, while his opponents accuse him of trying to gut the core of Canada’s medical system. THE CANADIAN PRESS/Darryl Dyck

Closing arguments begin in B.C. case launched in 2009 over private health care

Dr. Day said he illegally opened the Cambie Surgery Centre in 1996 in order to create more operating-room time

A framed iconic photo in Dr. Brian Day’s office shows Muhammad Ali raising a triumphant gloved hand as he stares down at his opponent splayed on the mat after a first-round boxing knockout less than two minutes into the fight.

Day, 72, will step into a courtroom on Monday as final arguments begin in the culmination of a battle he launched a decade ago against the British Columbia government based on a constitutional challenge saying patients have a right to pay for private care if the public system leaves them waiting too long.

“I stayed up to listen to the fight on the radio,” Day said of the legendary spectacle between Ali and Sonny Liston in 1965, adding he stopped boxing in his native Liverpool, England, at age 11 as his peers began outgrowing him.

He took on the provincial government, and in effect the “myth” of Canada’s single-tier universal health-care system, in 2009 and the case landed in B.C. Supreme Court in 2016 with support from four patients.

Other countries, including Switzerland, Germany and England, that offer a parallel public-private system of care have managed to shorten wait lists, he said.

“We’re the only jurisdiction on Earth where private health insurance for medically necessary care is unlawful, unless you’re an injured worker,” Day said after doing knee surgery on a 61-year-old patient from Alberta, the first of his eight procedures that day, some involving people whose costs would be covered by B.C.’s workers’ compensation agency.

That’s unfair to children and others needing surgery because they must choose to either pay for private clinics or suffer through delays in public hospitals, he said.

“One of the witnesses in our trial was a welder who had previously undergone surgery for a knee ligament injury on one knee and came back a few years later with the same injury in the other knee but he hurt it in sports on one knee and got an MRI quickly and on the other side was told it was going to be 18 months.”

However, government lawyers say in written closing arguments that Day’s claims of the plaintiff patients having been deprived of life, liberty and security of the person under Section 7 of the charter are problematic because those protections apply to issues of justice, not health care.

Rather than a constitutional challenge, the government alleges Day’s case amounts to ”political theatre” and an attempt to force change on the health-care system for the financial benefit of doctors who earn more money from wealthy patients going to private clinics.

The province also says Day’s lawyers have failed to establish that patients any suffer harm by waiting for services.

READ MORE: B.C. health ministry moves to bar extra billing

Day said he illegally opened the Cambie Surgery Centre in 1996 in order to create more operating-room time for surgeons who couldn’t get it in public hospitals and profit was never a motive.

In 2018, Health Minister Adrian Dix announced the government would begin to fine doctors $10,000 for a first offence and $20,000 for a second violation of its Medicare Protection Act if they charged patients for publicly available services. He said the ’Don’t ask, don’t tell’ approach, which allowed private-clinic surgeries and diagnostic tests to continue because provisions of the law had not been enforced, would come to an end.

However, Day successfully sought an injunction that prompted B.C. Supreme Court Justice Janet Winteringham to order the government not to enforce sections of the act until their validity could be established at trial, which is expected to conclude Dec. 6 with the trial judge.

Days before the start of closing arguments, the surgeon said the injunction order was a positive sign he would prevail in his court battle because Winteringham recognized patients would “suffer serious physical and/or psychological harm while waiting for health services” if they couldn’t turn to private clinics.

READ MORE: B.C. is using taxpayer money to outlast plaintiffs in health-care trial: critic

Winteringham’s words apply generally to the “nonsense” of an inadequate universal health-care system that doesn’t meet patients’ needs, said Day, a former president of the Canadian Medical Association.

“It’s unconstitutional. You cannot have it both ways. You cannot promise health care, then not deliver it in a timely way, then outlaw the patients’ ability to access it independently,” he said.

“I’m confident that the evidence is in that major harm is being done to patients by the health system as it operates.”

The federal government is an intervener in his trial, along with Canadian Doctors for Medicare, the B.C. Nurses’ Union and the B.C. Health Coalition.

Dr. Danyaal Raza, board chair of Canadian Doctors for Medicare, said the delivery of health care is being reorganized around the country and some changes are based on a model in Richmond, B.C., where a hospital reduced wait times for hip and knee surgeries through efficiencies such as booking surgeries centrally.

“It’s a model that Alberta has also pursued and now in Ontario we’re learning from the experience of B.C. and Alberta and we’re learning from that experience how to approach back pain,” the family doctor said from Toronto.

READ MORE: Private clinics win injunction against B.C. law that banned them

“I think the pace of change needs to speed up,” he said. “If we go down the road that Dr. Day wants to take us, wait lists are not going to get better, they’re going to get worse. So, we really have to decide when we make changes to the health-care system, do we want changes that are going to benefit everyone or do we want to make changes that prioritize those who can pay?”

He said a parallel public-private system has not worked in some countries, including Australia and Scotland.

Day said his case has so far cost $6 million, with much of the money raised by the Canadian Constitution Foundation, but the province has refused to divulge how much it has paid in taxpayers’ dollars since 2009.

Derek From, a lawyer with the foundation, said the Office of the Information and Privacy Commissioner ordered the government to release the amount at the foundation’s request but the government won an appeal of the decision in court though his group is in the process of filing an appeal of that ruling.

Camille Bains, The Canadian Press


Like us on Facebook and follow us on Twitter.

Just Posted

Toys for Tots to Teens at South Okanagan secondary school

For the second year Pen High is hosting the annual Toys for Tots to Teens

Vandalism closes public washrooms in Penticton’s Okanagan Lake Park indefinitely

A post by the city’s Facebook said the damage is ‘quite extensive’

Okanagan Water Board opens floodgates with call for grant applications

Water Conservation and Quality Improvement program open from Armstrong to Osoyoos

Community safety, recreation and culture first topics of discussion in Penticton’s 2020 budget

Penticton RCMP clocked roughly 6,000 hours of overtime in ten months, at a cost of $422k

Three-vehicle crash in Penticton sends one to hospital

The Penticton RCMP are looking to speak with anyone who may have witnessed the collision

Video: Magicians and Bubble Wonders highlight Penticton Shriners Variety Show

The annual fundraiser filled the Cleland Community Theatre on Sunday.

RCMP rescue wounded raven on Vancouver Island highway

Bird expected to make full recovery

Be aware of ticks when chopping down Christmas trees

Potential for ticks to transfer to clothing

More rowers come forward with complaints about coach, criticism of UVic

Barney Williams is accused of verbal abuse and harassment

Raptors fans show Kawhi the love in his return to Toronto

Leonard receives championship ring, leads new club to win

Process to identify those killed in Gabriola plane crash could take days

Canadian flight museum suggests Alex Bahlsen of Mill Bay died in Tuesday’s crash

Disturbing find: Shuswap family seeking Christmas tree locates several animal carcasses

Black bear, a coyote and five deer found dumped in gravel pit west of Salmon Arm

RCMP uncover meth in arrest of Sicamous woman linked to alleged pellet gun shooting

Police say methamphetamine and other drugs found in car driven by suspect

Pawsative Pups: Help your dog love their crate

Lisa Davies is a new columnist for Black Press who writes about dog training

Most Read