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

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

One of the tiny western toads during the 2019 migration. (Langley Advance Times files)
Environmentalists prep for annual Langley toad migration

South Langley will soon have tens of thousands of toads on the move

Blading for bees, led by Aldergrove resident Zach Choboter, headed through B.C. (Special to The Star)
Aldergrove’s bee blader crosses the prairies

Zach Choboter has rollerbladed from Whistler to Alberta in two weeks

Tourism Langley has put together Father’s Day gift boxes that support local businesses and aid the Langley Food Bank. (Special to Langley Advance Times)
This Father’s Day, you can support Langley businesses and aid the Food Bank

Tourism Langley brings back their popular gift boxes

Marsha Miller walked through the Derek Doubleday Arboretum Friday afternoon, reading the info stations about residential schools and their impact on Indigenous Canadians. (Matthew Claxton/Langley Advance Times)
Langley vigil for residential school victims brings forth powerful emotions

Tears from visitors even before evening event, organizer said

Trinity Western University held a vigil Tuesday as well as having two more on Thursday, June 10 to honour the 215 children whose remains were buried at a residential school in Kamloops. Their remains were found with ground-penetrating radar. (TWU/Special to the Langley Advance Times)
Langley university vigils honour the 215 children buried at Kamloops residential school

Indigenous leader offers suggestions on how to process the devastating information and on healing

t
How to tell if a call from ‘CRA’ is legitimate or a scam

Expert says it’s important to verify you really are dealing with the CRA before you give out any info

Airport ground crew offload a plane carrying just under 300,000 doses of the single-shot Johnson & Johnson COVID-19 vaccine which is developed by the Janssen Pharmaceutical Companies at Pearson International Airport during the COVID-19 pandemic in Toronto on Wednesday, April 28, 2021. THE CANADIAN PRESS/Nathan Denette
1st batch of Johnson & Johnson vaccines won’t be released in Canada over quality concerns

The vaccines were quarantined in April before they were distributed to provinces

The rainbow flag flies beside the Canadian flag outside the University of the Fraser Valley’s Chilliwack campus on June 26, 2020. Monday, June 14, 2021 is Flag Day, and also June is Pride Month. (Jenna Hauck/ Chilliwack Progress file)
Unofficial holidays: Here’s what people are celebrating for the week of June 13 to 19

Flag Day, Garbage Man Day, International Panic Day all coming up this week

British Columbia-Yukon Community News Association’s 2021 Ma Murray Awards were handed out during a virtual ceremony on Friday, June 10. (Screen grab)
Black Press Media winners take gold at B.C. and Yukon journalism awards

Publications received nods in dozens of categories

Cannabis bought in British Columbia (Ashley Wadhwani/Black Press Media)
Is it time to start thinking about greener ways to package cannabis?

Packaging suppliers are still figuring eco-friendly and affordable packaging options that fit the mandates of Cannabis Regulations

Forty sled dogs were seized by the BC SPCA from a Salmo kennel in February. A recent ruling has decided the dogs won’t be returned. Photo: Gounsil/Flickr
BC Farm Industry Review Board rules against Salmo kennel after 40 sled dogs seized

Spirit of the North Kennels was also ordered to pay BC SPCA $64,000

Prime Minister Justin Trudeau greets campers while visiting McDougall, Ont. on Thursday, July 19, 2018. THE CANADIAN PRESS/Frank Gunn
71% of B.C. men say they’d prefer to go camping with Trudeau: survey

Most British Columbians with plans to go camping outdoors say they’d prefer to go with Trudeau or Shania Twain

Members of the Department of Fisheries and Oceans’ Marine Mammal Response Program rescued an adult humpback what that was entangled in commercial fishing gear in the waters off of Entrance Island on Thursday, June 10. (Photo courtesy Marine Mammal Response Program)
Rescuers free humpback ‘anchored’ down by prawn traps off Vancouver Island

Department of Fisheries and Oceans responders spend hours untangling whale

Chilliwack cocaine trafficker Clayton Eheler seen with a tiger somewhere in Asia in 2014. Eheler was sentenced to nine years jail in 2018, but was released on bail in October 2020 pending his appeal of conviction.(Facebook)
Director of civil forfeiture seeks $140,000 from Fraser Valley drug dealer’s father-in-law

Clayton Eheler’s father-in-law Ray Morrissey caught with money in Fort St. John by B.C.’s gang unit

Most Read