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.

Get local stories you won't find anywhere else right to your inbox.
Sign up here

Just Posted

Principal Marie-Claude Carrier has overseen the opening of the Cowichan Valley’s first francophone school. (Citizen file)
Registration now open for Duncan Francophone school

École francophone de Duncan opened last fall with six students

Reggie went missing in Duncan’s McAdam Park on Jan. 3 and owner Brittny Bukva is hoping for his safe return. (Submitted)
Have you seen Reggie? Dog went missing in Duncan’s McAdam Park

Have you seen Reggie? Dog went missing in Duncan’s McAdam Park

Workers prepare to take down 28 large trees on private property on Mill Bay Road this week after they were intentionally poisoned almost two years ago. (Submitted photo)
Still no charges over poisoning of trees in Mill Bay

It’s been almost two years since incident involving 28 large trees

Cory Harrington has been found. (Submitted photo)
Missing Lake Cowichan man located

Cory Harrington was last seen on Dec. 11

Alistair MacGregor will have Pharmacare on his mind for a Thursday, Jan. 21 virtual town hall. (Photo by Lexi Bainas/Cowichan Valley Citizen)
Cowichan MP hosting town hall on universal pharmacare

“Pharmacare for All: A Prescription for Your Wallet”

Syringe is prepared with one of B.C.’s first vials of Pfizer vaccine to prevent COVID-19, Victoria, Dec. 22, 2020. (B.C. government)
B.C.’s COVID-19 caseload stays steady with 465 more Tuesday

No new outbreaks in health care facilities, 12 more deaths

Stand up paddleboarder Christie Jamieson is humbled to her knees as a pod of transient orcas put on a dramatic show on Jan. 19 in the Ucluelet Harbour. (Nora O’Malley photo)
Updated: Ucluelet paddle boarder surrounded by pod of orcas

“My whole body is still shaking. I don’t even know what to do with this energy.”

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

Inmates at Metchosin’s William Head Institution are being given COVID-19 vaccines as part of the first phase. Around 600 inmates will be vaccinated in the coming days. (Black Press Media file photo)
William Head prison inmates in receive first doses of COVID vaccine

Priority set for older inmates and those with underlying medical conditions

New Westminster TV production designer, Rick Whitfield, has designed an office in a box for British Columbians in need of a private workspace. (BC Box Office photo)
PHOTOS: B.C. man designs ‘box office’ solution for those working from home

‘A professionally designed workspace on your property, away from the distractions of home’

Chilliwack ER doctor Marc Greidanus is featured in a video, published Jan. 18, 2021, where he demonstrates and describes effectiveness of various styles of masks. (Youtube)
VIDEO: Emergency room doctor runs through pros and cons of various masks

‘We’ve been asked to wear a mask and it’s not that hard,’ Greidanus says.

(Pixabay photo)
VIDEO: Tip to Metro Vancouver transit police helps woman 4,000 km away in Ohio

Sgt. Clint Hampton says transit police were alerted to a YouTube video of the woman in mental distress

A woman types on her laptop in Miami in a Monday, Dec. 12, 2016, photo illustration. THE CANADIAN PRESS/AP/Wilfredo Lee
British Columbia government lax on cybersecurity practices, auditor reports

The audit did not highlight a specific threat, but it found breaches in cybersecurity are increasing globally

A water taxi at Victoria’s Fisherman’s Wharf. (Black Press Media file photo)
Man arrested after stolen water taxi raced up Victoria’s Gorge Waterway

Man is facing recommended charges of theft over $5,000 after leading police on marine chase

Most Read