“On 8^th of June, 2004 … I returned from a visit to the Supreme Court of Canada where, as one of several intervenors, I listened to a Canadian Charter-based challenge to the constitutionality of our state-imposed restrictions on access to supplementary non-government health care. In a trial labeled by media as the “case of the decade”, seven Judges listened to many lawyers and a single physician, Dr. Jacques Chaoulli, put forth views on the constitutionality of the current restrictions on the rights of Canadians to purchase more health care than the government provides. I heard lawyers representing the governments of Canada, Quebec and Ontario argue that there was no evidence that wait lists for health care were harmful to patients. I heard a lawyer for the Canadian Health Coalition (a CUPE supported lobby group) argue that there were no restrictions on access to “private” health care in Canada, and dismissed the suffering that patients experience while they wait as being justified on the basis that the system is a defining feature of Canada’s national identity.

I listened in dismay as two government lawyers argued that the issues being discussed were too complex for the Supreme Court to understand. The questions were so difficult, they argued, that they should be left to (presumably wiser) politicians to decide. I became somewhat frustrated (there is no means of rebuttal) as a government lawyer presented a series of so called “research facts” that were in reality OCED articles commissioned or written by special interest groups.

Our own Canadian Medical Association, with the Canadian Orthopedic Association, were intervenors in the case, agreeing with us and the Appellants that forced denial of choice was unconstitutional but (timidly in my opinion) seeking a “care guarantee” as the remedy. In the most important legal case involving medicine in Canadian history, the other provincial medical associations, including our own BCMA, had decided to avoid taking their own position on this important issue and deferred to the CMA.

In response to the one point raised by one government lawyer that there was no evidence of patients suffering on wait lists, one Judge retorted, “Do you think we don’t read the newspapers?”

The Quebec government lawyer could only mumble when responding to one of the judges inquiries about private MRI clinics that were operating in that province. “They are only used to diagnose non-medicare covered problems,” he said.

“Can’t they be used to pick up a cancer?” asked the judge. There was no reply from the Quebec lawyer.

What will be the impact of a decision by the Court to allow the Appeal?

A system similar to that in Austria, Belgium, France and Germany will develop.

In those countries there is universal health care with a difference. They allow supplementary private care and yet there are no waits in the public system.

As a new insurance and health delivery system evolves in Canada, tens of billions of dollars in non-government funding will be pumped into patient care.

Cross-border shopping for health care will cease and pressure will be lifted off the public system leading to better care and shortened waiting lists.

Physicians will not have to stop work because of limited hospital sources and practitioners of all types will have the option to spend time practicing outside the public system.

Physicians may opt for a different quality of practice where they are not constrained by time limits on seeing patients. Walk in clinics will remain an option for those who want a quick, superficial assessment but physicians who prefer to spend more time or see more complex problems will be rewarded accordingly.

The brain drain of doctors frustrated by rationing and restricted assess to new technology will be reversed. Although no system is perfect, for the price we pay, ours ranks with the worse. A recent OCED study reveals that Canada’s health system is the most expensive of all countries that have universal public health care. It also ranks us 14th in “disability – free” life expectancy, 16^th in infant mortality and 16^th in doctors per 1,000 population.

A Canadian Institute For Health Research study published in May revealed 24,000 patients a year die in Canadian hospitals due to adverse effects and overall 7.5 percent of patients suffer serious adverse effects – double that in the United States.

The WHO ranks our system the 30^th in the world and below in top 20 in access to new technology. A recent survey shows that half of all children in BC Children’s Hospital were waiting a medically unacceptable period of time.

Our systems is clearly in need of repair, if not rebuilding. My hope is that the intents and irrational debates and rhetoric that has prevented objective discussion of Canadian Medicare will be resolved by the dispassionate and logical intervention of the highest Court in the land.

Editorial BC Medical Journal, July/August 2004.

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