The B.C. Supreme Court has handed private clinics a major victory, ordering B.C.’s NDP government to not enforce provisions of the Medicare Protection Act until their validity is established at a lengthy ongoing trial.
“Taking into account the circumstances of this constitutional litigation and a preliminary assessment of the evidence, the plaintiffs have established that injunctive relief is appropriate in this case,” Justice Janet Winteringham said Friday in a 74-page decision.
The injunction will prevent the Medical Services Commission from enforcing sections of the act that came into force Oct. 1 constraining access to privately provided necessary medical care.
Her order is good until June 1 but can be extended if the continuing two-year-old constitutional trial has not finished.
Winteringham concluded the injunction was necessary because the clinics said they would be forced to close and stop providing services that have been available for a quarter century, shifting hundreds of patients onto already lengthy public waiting lists.
Her ruling said: “i. Some patients will suffer serious physical and/or psychological harm while waiting for health services; ii. Some physicians will not provide private-pay medically necessary health services after the MPA Amendments take effect; iii. Some patients would have accessed private-pay medically necessary health services but for the MPA Amendments; iv. Some patients will have to wait longer for those medically necessary health services that could have been available but for the MPA Amendments and impugned provisions; v. A sufficient causal connection between increased waiting times for private-pay medically necessary health services and physical and/or psychological harm caused to some patients.”
Dr. Brian Day, the face of the decade-long litigation, celebrated.
“We are very pleased that the court has ruled in favour of patients,” he said.
“The justice system has, quite literally, saved many thousands of patients in B.C. from the suffering that the B.C. government would have imposed on them and their families.”
Two clinics and a handful of patients launched the constitutional challenge to the MPA’s constraints on private care nearly a decade ago and the trial before Justice John Steeves has become a marathon.
The previous Liberal government decided to hold in abeyance the impugned provisions until their constitutionality could be established.
But NDP Health Minister Adrian Dix claimed in April new punishments had to be adopted because the old provisions were ineffective and led Ottawa to withhold $16 million in health transfer payments because of “extra-billing.”
More could be withheld if the scores of private clinics and diagnostic centres continued to thumb their nose at the law, he added.
The clinics disputed that rationale and said the draconian fines and penalties for treating non-exempt individuals could force them out of business.
In support of the injunction application, they filed numerous affidavits, extensive trial transcript excerpts and trial exhibits (including affidavits, expert reports, agreed statements of fact, documents from the common book of documents and substantial wait time data).
“Needless to say, the record is vast,” Winteringham quipped. “The Attorney General of British Columbia objects to almost all of it.”
The justice said the clinics had established irreparable harm could result in that some patients but for the law could obtain “private-pay medically necessary health services much sooner at a private clinic (such as Cambie) and the subsequent delay in receiving treatment causes some patients to endure serious physical and psychological suffering.”
Although she emphasized that “the MPA amendments are directed to the public good and serve a valid public purpose,” the clinics tilted the balance by establishing that restraint of the enforcement provisions will also serve the public interest in that private-pay medically necessary health services will be accessible in circumstances where the parties are in the midst of a lengthy trial to determine the complicated constitutional issues at play.
“Enjoining the province from enforcing the prohibitions for a relatively short period of time serves that important public purpose,” she said.
