Private Medical Clinics Win Injunction Against Province’s Clampdown

The BC Supreme Court has handed private clinics a major victory, ordering the 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 surprising 74-page decision.

The injunction will prevent the Medical Services Commission from enforcing sections of the act that came into force on Oct. 1 constraining access to privately provided necessary medical care.

“Obviously I’m disappointed because it takes away our ability to do what we are obligated to do and what we need to do: enforce the law,” Health Minister Adrian Dix responded.

“But that said, the court case involved has been going on for 10 years, and I’m a very patient person about court cases. I’m a very impatient person when it comes to improving patient care in BC.”

Winteringham’s order is good until June 1, but can be extended if the continuing two-year-old constitutional trial hasn’t finished.

The injunction was necessary, she concluded, because the clinics said they would be forced to close and stop providing services that have been available for a quarter-century, dumping hundreds of patients onto already lengthy public waiting lists.

The justice wrote: “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 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 BC from the suffering that the BC 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 Dix claimed in April that 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 failure of the previous government to enforce the act has cost us,” Dix repeated Friday. “What is $16 million? Well, just as an example, it could be 55,000 MRIs in the public system. That’s what it cost us… the consequences of extra billing are fewer services than there should be.”

The clinics disputed that rationale before Winteringham and said the draconian fines and penalties for treating non-exempt individuals could force them out of business.

In support of their 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 waiting 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 explained 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 in their favour 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 maintained.

Dix insisted that “my clear message today” is that the government continued to oppose “extra billing.”

“That has always not been allowed under the Canada Health Act, that has always not been allowed under the Medicare Protection Act. This ruling today, and we are going to be reviewing it, it’s a long ruling… to see what our legal response is,” he said “But it’s clear that extra billing of medically necessary services is not allowed and everybody knows that. Doctors know that, and everybody else, and my assumption regardless of whether the enforcement mechanisms are in place, is that people will follow the law.”

Ian Mulgrew · November 24th, 2018 · Vancouver Sun

Note: Judge finds “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.”