B.C. Court of Appeal upholds legislation preventing parallel private healthcare services

In Cambie Surgeries Corporation v. British Columbia (Attorney General)¹, the B.C. Court of Appeal upheld the trial court’s conclusion that provincial governments may prohibit a parallel market for private healthcare services. The Court held that although prohibiting private healthcare may impact individual patients’ rights, this is permitted so long as it is done in accordance with “principles of fundamental justice”. A concurring minority judgment held that such infringement may be grossly disproportionate to individual patients, but is justifiable when balanced against the broader societal benefit from preserving the existing public healthcare system.

What you need to know

• In British Columbia, the Medicare Protection Act (MPA) prevents medical practitioners enrolled in the public Medical Services Plan (MSP) from billing patients any amounts beyond what is paid by the MSP. It also prevents the sale of private insurance covering the same medical services provided through the MSP.
• Similar legislation has been enacted in other Canadian provinces and is in fact a requirement for provinces to receive federal healthcare funding under the Canada Health Act.
• The appellants challenged the constitutionality of these MPA provisions, arguing that the prohibition against extra billing and private insurance infringes on a patient’s rights to life, liberty, and security of the person (found in section 7 of the Charter of Rights and Freedoms, a part of the Canadian Constitution).
• The majority in the B.C. Court of Appeal (BCCA) confirmed the trial judge’s decision that the MPA provisions are constitutionally permissible, stating that any such infringement is permissible under section 7 of the Charter because it is in accordance with “principles of fundamental justice”.
• A concurring ruling held that the infringement was permissible under section 1 of the Charter because such infringement by the government is justifiable in a free and democratic society.
• It is expected that the ruling will be appealed to the Supreme Court of Canada.

B.C.’s public health care system

Healthcare services in Canada are delivered through various institutions, both public and private. In British Columbia, residents are enrolled in the MSP, which provides public coverage for medically necessary services. Healthcare professionals may enroll in the MSP to receive payment for providing services covered by the MSP. While healthcare professionals may offer the same services without being enrolled in the MSP, patients will not be covered by the MSP if they receive MSP-covered services from unenrolled healthcare professionals.

The MPA governs how healthcare professionals are paid for providing services covered by the MSP. In particular, the MPA provides that in order to be eligible for payment under the MSP, healthcare professionals providing services covered by the MSP may not charge any fees in excess of MSP coverage. The MPA also prohibits the sale of private insurance for services covered by the MSP. While there is no explicit prohibition against providing private healthcare services, together these sections of the MPA make a parallel private market for healthcare services in British Columbia not economically viable.

B.C. Court of Appeal decision

Findings of fact

In a lower court decision from 2020, the trial judge made many findings of fact which were critical to the constitutional analysis. In particular, the trial judge held that the creation of a parallel private healthcare market in British Columbia would hurt the existing public healthcare system, and would specifically increase wait times in the public system. The trial judge also found that there are well-documented delays for patients seeking non-emergency surgeries in the B.C. public system, and that private surgical services would be able to reduce some of those delays, if not for the impugned provisions of the MPA.

Infringement of Charter rights to life and security of the person

Under section 7 of the Canadian Charter of Rights and Freedoms, individuals have the right to “life, liberty, and security of the person and are not to be deprived thereof except in accordance with the principles of fundamental justice”. The right to “security of the person” is infringed where a government action leads to serious physical or psychological harm (or the risk thereof) to an individual. Because patients experience harm and suffering through delayed access to non-emergency surgeries, the impugned provisions of the MPA infringe on the right to security of the person for patients facing such a delay.

While the trial judge held that the right to life was not infringed, since there was no evidence that delays led to the death of any patient, the BCCA found that the right to life is also infringed by these provisions. It reasoned that in some circumstances delays in treatment would increase the risk of death to patients. It also held that the trial judge had underestimated the number of individuals whose rights are infringed by the impugned provisions of the MPA.

Principles of fundamental justice

Infringement of section 7 Charter rights may be permissible if such infringement is consistent with “principles of fundamental justice”². In addition to procedural rights, the case law establishes three such principles: arbitrariness, overbreadth, and gross disproportionality. Laws may infringe upon section 7 rights provided that such infringement is connected to a valid legislative objective (i.e., not arbitrary or overly broad) and such infringement is not so severe that it violates fundamental norms (i.e., not grossly disproportionate).

The BCCA upheld the trial judge’s determination that the legislative objective of the MPA is to preserve the public healthcare system in British Columbia, and ensure that medically necessary services are available to all B.C. residents based on need and not on ability to pay.

The majority of the BCCA held that although the impugned provisions of the MPA do deprive B.C. residents of their rights to life and security of the person, it did so in a manner consistent with principles of fundamental justice. In particular, the majority found that eliminating the impugned provisions of the MPA would lead to further delays in the public system. As a result, individuals who are unable to pay for services would have their own section 7 rights infringed through such exacerbated delays. In balancing the infringement of rights to people prevented from paying for healthcare services under the present scheme, and the infringement of rights of people who would suffer harm if a parallel private system took hold, the majority held that the MPA provisions are not grossly disproportionate, and are consistent with principles of fundamental justice.

Limits justifiable in a free and democratic society

In a concurring judgment, the minority held that infringement of the rights to life and security of the person was grossly disproportionate. The concurring judgement held that the analysis of arbitrariness, overbreadth, and gross disproportionality must be performed from the perspective of the individual whose rights are infringed, and that competing broader societal benefits are not considered in the section 7 analysis. From the perspective of an individual patient whose treatment has been delayed and who would otherwise be able to pay for private healthcare but for the impugned MPA provisions, the minority judgment concluded that the infringement of section 7 rights is grossly disproportionate.

However, the concurring judgement went on to state that this is a rare case where a grossly disproportionate infringement of section 7 Charter rights is nonetheless justifiable under section 1 of the Charter. Under section 1, Charter rights may be infringed, to the extent such infringement is reasonable and justifiable in a free and democratic society. The concurring judgement held that the section 1 analysis is the proper place to perform a balancing exercise between infringement of individual rights against broader societal benefits.

The concurring judgement noted that courts should show some degree of “judicial humility” when considering a complex regulatory scheme such as the regulation of healthcare. Therefore, although the concurring judgement acknowledged the “legal dissonance” in holding that a grossly disproportionate infringement of the rights to life and security of the person are nonetheless constitutional, this is one such case where the societal benefit of preserving the public healthcare system would allow such a finding. However, the concurring judgment also noted that this ruling was based on findings of fact built on evidence tendered in 2018, and that changes in the underlying social science evidence, and indeed changes in public opinion after the COVID-19 pandemic, may result in a different balancing analysis in the future.

Next steps

As a result of the BCCA ruling, the MPA and limitations on providing private healthcare services in B.C. remain in force. However, it is unlikely that this will be the final word on the constitutionality of Canadian healthcare laws. It is likely that Cambie will try to appeal this ruling to the Supreme Court of Canada. The deadline to file an application for leave to appeal to the Supreme Court is September 29, 2022.