British Columbia has a great public heath care system. If you are sick or injured you can see a doctor, if diagnostic tests are prescribed they are covered. If surgery is required the public health care system will take care of that as well.
As great as our system is, however, it is not without its flaws. One of the biggest shortcomings is delay. Many people involved in serious injury claims quickly come to this conclusion. If you need to see a specialist the wait can be long. Delays can be equally long for diagnostic tests and surgical intervention. Some people with means prefer not to wait and seek out private health care services instead. Where there is a need the market tends to fill it and some entrepreneurial companies have sought to fill this void and offer British Columbian’s services on a private basis.
There is a tension, however, between the Government of BC and these private health care facilities. These tensions were demonstrated in reasons for judgement released today by the BC Court of Appeal.
In today’s case (Cambie Surgeries Corporation v. British Columbia (Medical Services Commission), the Province of BC sought a Court order allowing a government inspector to access the premises of the Cambie Surgeries Corporation and to perform audits to see if violations of the Medicare Protection Act are taking place through the clinics private services.
At the trial level the BC Supreme Court ordered an injunction requiring these audits to take place. The Cambie Medical Clinic appealed arguing that provisions of the BC Medicare Protection Act are unconstitutional because they “have the effect of preventing patients from using their own resources to obtain desired medical care in a timely manner“.
Ultimately the BC Court of Appeal set aside the trial decision finding that the government should have applied to a justice of the peace for a warrant to inspect Clinic rather than seeking an order through a lawsuit. Before reaching this verdict the BC Court of Appeal set out the following provisions which restrict the availability of private health care services in BC and the argument alleging this restriction is unconstitutional:
 The Medicare Protection Act governs the administration of British Columbia’s Medical Services Plan (the “Plan”), the primary public health insurance scheme in the province. Most residents of B.C. are enrolled as beneficiaries and most physicians are enrolled as practitioners entitled to payment for their services under the Plan. A number of the provisions of the Act are relevant to the appeal. Rather than setting them out in the body of these reasons, I have appended the relevant portions of the statute.
 In the normal course, practitioners bill the Commission for services performed for beneficiaries, and the Commission pays the practitioners in accordance with its established payment schedules. Section 14 of the Act allows enrolled practitioners to opt out of the normal payment arrangements and to bill patients directly.
 Unless a physician has opted out or is not enrolled in the Plan, s. 17 prohibits him or her from charging a beneficiary for the provision of a service covered by the Plan. Where a physician has opted out or is not enrolled, s. 18 prohibits him or her from charging a patient more than the amount that the Plan would pay for a medical service.
 Together, ss. 17 and 18 greatly restrict the scope for medical practitioners to bill patients directly for their services. Section 18 also prohibits “extra billing” – i.e., billing a patient for an amount beyond that which the Plan pays for a service.
 The clinics admit that they have engaged in practices that would violate the statutory prohibitions against direct and extra billing if those prohibitions are constitutional. Some patients have signed “acknowledgement forms” confirming their understanding that they are being billed for amounts in excess of those provided for under the Plan.
 The clinics contend, however, that ss. 14, 17 and 18 of the Act are unconstitutional. They allege that those provisions have the effect of preventing patients from using their own resources to obtain desired medical care in a timely manner. Relying primarily on Chaoulli v. Quebec (Attorney General),  1 S.C.R. 791, the clinics argue that the impugned provisions of the Medicare Protection Act violate the rights of patients to life, liberty, and security of the person in a manner that is not in accordance with principles of fundamental justice, contrary to s. 7 of the Canadian Charter of Rights and Freedoms. They have commenced an action seeking a declaration that the impugned provisions are unconstitutional.
It appears that this battle will continue to play out before the Courts. It will be welcome, for both patients and health care practitioners alike, to have certainty in this area of law so that British Columbians can better know what healthcare care options are available to them when they are in need of care.