Legal proceedings that are currently underway in the British Columbia Supreme Court raise important issues about the constitutionality of restrictions on Canadians’ ability to pay for medically necessary health care services. Two private health care facilities located in Vancouver, British Columbia, the Cambie Surgery Center and the Specialist Referral Clinic (Vancouver) Inc., are in the crosshairs of the provincial government because of practices that they readily admit contravene restrictions in provincial health care legislation on the ability to pay for health care services. A recent development in those proceedings, discussed below, suggests that this matter may finally be coming to a head.
The Regulation of Health Care in British Columbia
By way of background, the legislation governing health care in British Columbia is called the Medicare Protection Act (the “MPA”). The MPA provides for a public health care insurance plan called the Medical Services Plan (“MSP”), which is managed by the Medical Services Commission of British Columbia (the “Commission”). Residents of BC enrolled in the MSP are referred to as “beneficiaries”. Medical and health practitioners can apply to be enrolled in the MSP and, once enrolled, they then bill the MSP for medical services provided to beneficiaries. There is a payment schedule which sets out the amount a practitioner can bill the MSP for any given service.
Most medical practitioners in BC are enrolled in the MSP and bill the MSP directly. Some medical practitioners have elected under s. 14 of the MPA to bill their patients directly, in which case the patient must then apply for reimbursement from the MSP. A few medical practitioners have chosen not to enroll in the MSP at all. Under s. 17 of the MPA, only medical practitioners who have made an election under s. 14 or who are not enrolled in the MSP are permitted to bill patients directly.
Section 18 of the MPA prohibits “extra billing”, which is charging a patient who is a beneficiary more than the MSP would pay for the service in question. The prohibition covers any kind of related charges for the service, such as a facilities fee. The one exception is that a medical practitioner who is not enrolled in the MSP can charge more for services, so long as those services are not provided in a hospital. Under BC legislation, a private surgical clinic is regarded as a hospital.
The Claim Commenced by Cambie Surgeries Corp.
Cambie Surgeries Corp. (“Cambie”) owns and operates a private health care facility in Vancouver, British Columbia called the Cambie Surgery Center (“CSC”). At the CSC, patients receive surgical and diagnostic services in a variety of specialty areas, including orthopaedic surgery, eye surgery, and plastic surgery. The CSC is affiliated with another private health care facility called the Specialist Referral Clinic (Vancouver) Inc. (the “SRC”). The SRC primarily provides medical consultations or evaluations.
The CSC and the SRC (the “Facilities”) admit that the way they charge beneficiaries for medical services contravenes the provisions of the MPA. As described above, the MPA prohibits medical practitioners enrolled in the MSP, and who have not made a s. 14 election, from billing beneficiaries directly for services covered by the MSP, and prohibits all extra billing, which includes facilities fees, in respect of medical services provided in a hospital. At the CSC, even though most of the practitioners are enrolled in the MSP, patients are charged a “facility fee” to cover the costs of things like supplies, overhead, and nursing (while the costs of the physician’s services are charged to the insurer, which, in some cases, is the MSP). Similarly, at the SRC, in some cases, patients are billed directly for services, and, where a consultation is linked to subsequent surgery at the CSC, may be billed the facilities fee by SRC rather than CSC.
In April 2008, the Commission referred the Facilities for an audit review in response to complaints from beneficiaries that they had been charged for medical services received at the Facilities. The Facilities took the position that the statute giving rise to the audit, the MPA, was unconstitutional and, as such, the audit could not proceed.
In January 2009, Cambie filed a lawsuit against the government alleging that ss. 14, 17, 18 and 45 of the MPA (the “Provisions”) are in breach of ss. 7 (right to life, liberty and security of the person) and 15 (right to equality) of the Charter of Rights and Freedoms. As described above, ss. 14, 17 and 18 relate to direct and extra-billing and s. 45 prohibits private insurance for medical services covered by the MSP.
Cambie asks the court to declare that the Provisions “have the effect of preventing or severely limiting the development and availability of private health care to ordinary British Columbians…when the public health care system cannot guarantee reasonable health care within a reasonable time…”. Cambie wants the court to order that the Provisions are of no force and effect, either immediately or, alternatively, within six months (to allow the Province time to amend the offending provisions).
The Injunction Sought by the Medical Services Commission of British Columbia
Following some legal skirmishes on the issue, the Commission commenced an audit of the Facilities in January 2011 and the report was issued in June 2012. The findings from this audit confirmed that Cambie had been engaging in improper direct billing and extra-billing practices. Accordingly, on July 18, 2012, the Commission ordered the Facilities to stop these practices within 30 days, failing which it would seek an injunction. The Facilities did not comply with the demands of the Commission and, as such, the Commission commenced injunction proceedings on August 22. The injunction application is scheduled to be heard on November 19-21, 2012.