Seniors across Canada may be breathing a collective sigh of relief now that three justices of the B.C. Court of Appeal have rejected Cambie Surgeries Corp.’s appeal of the 2020 B.C. Supreme Court decision of Justice John Steeves that upheld the province’s health-care law.
In their appeal of Steeves, Cambie Surgeries argued that the judge erred in dismissing its case and argued that the prohibition on private surgeries in Canada is contrary to the rights guaranteed in the Canadian Charter of Rights and Freedoms, which in Sec. 7 guarantees “the right to life, liberty and security of the person.”
The declared goal of Cambie Surgeries Corp. and its founder Dr. Brian Day is to be able to offer private pay medical services (mostly hip and knee surgeries) legally to Canadians so that people can avoid suffering and putting their lives at risk through having to wait in line too long to receive these medically necessary services in the public system.
The Appeal Court justices reviewed the judgement of the earlier court for legal errors and agreed with Justice Steeves’ decisions on all but one point. They wrote that Steeves erred in his analysis of Sec. 7 and that the existing long wait lists for needed surgeries in B.C. could lead to death for some individuals. They said: “There is no doubt that many patients in most surgical categories are waiting beyond the prescribed benchmark for care.” They found, however, that the breach of Sec. 7 was justifiable given the egalitarian goals of the Canadian health-care system stated in Sec. 1 of the Charter.
The majority of those on wait lists for knee and hip surgeries in B.C. are seniors living on modest incomes without the means to travel to other countries for orthopedic surgery. Thus, we would argue that for the greater good, seniors must sometimes bear a heavy and unequal burden of the cost of supporting the current health-care system.
Even if seniors did have the option to obtain private surgical care in Canada, few seniors are likely to be able to afford the cost. We don’t know what the Cambie corporation charges at present, but a knee replacement operation costs about $25,000 US or more in California for non-U.S. residents (according to a U.S. orthopedic surgeon). In Canada, the cost to the public system, excluding rehabilitation, in 2019-20 is estimated to be on average $10,500. Whatever the Cambie clinic charges, the cost is likely to be prohibitive for many Canadian seniors given that the annual median income of adults 65 years and over in 2019 in Canada was $29,940, according to Statistics Canada.
Many seniors today will remember with dread the situation from 60 years ago when Canada did not have a universal medicare system and access to care was based on private insurance or ability to pay out of pocket. People suffered and died because they could not afford to pay for the medical treatment they needed.
It’s worth noting that while Justice Lauri Ann Fenlon agreed with Justice Robert Bauman that the appeal should be dismissed, she added: “The conclusion we are compelled to reach is far from a satisfactory one.”
Justice Fenlon also expressed concern that those unable to access timely surgical care in B.C. are ordinary people and not the affluent who can afford to travel to other countries for private surgical care.
The B.C. Appeal Court decision has implications for the whole of Canada since a win for the Cambie corporation would have undermined the basic principles of the Canadian medicare system and forced major changes in a system that is grounded in egalitarian values and designed to be based on need and not on ability pay. That is a cherished fundamental principle of the Canadian health-care system and one that makes Canada’s system very different from that of the U.S. and of many other developed countries that have various parallel public and private systems.
In the meantime, seniors in B.C. and across Canada ask their governments to ensure timely health care is available equally to all Canadian residents. Seniors are willing to work with our governments and all stakeholders to strengthen the current flagging health-care system to find ways to put the patient first and ensure those who most need care are at the front of the line.
Leslie Gaudette is president and Kathleen Jamieson is chair for the health committee at the Council of Senior Citizens’ Organizations of B.C.