Health Law Blog

Dying for Access to Private Health Care: Dr. Brian Day’s Challenge to the Current Limits of For-Profit Delivery of Medically Necessary Services

September 2, 2014

a) It has the potential to determine whether every Canadian reading this (literally) lives or dies.
b) It’s one of the most misunderstood cases in Canadian health law.
c) It poses the biggest challenge to Medicare in this generation.
d) All of the above

The answer is “d) All of the above” and “it” is the upcoming landmark court case between Dr. Brian Day and the Province of British Columbia.

To bring you quickly up to speed, Day, a former Canadian Medical Association President and a co-owner of the for-profit Cambie Surgery Centre in Vancouver, believes that if patients can’t get timely access to medical services under the current public health care system, they should have the right to use their own money or private insurance to access private health care. To quote Day, “We believe governments act unlawfully when they promise but fail to deliver timely care, and at the same time outlaw other options.”

Joining Day as plaintiffs are several patients who claim their health has suffered due to long waiting lists. One of these individuals is a teenage boy who, after waiting for three years for scoliosis surgery, flew with his mother to the United States for treatment. Unfortunately, due to complications from that delayed surgery, he is now a paraplegic. Another plaintiff died from a brain tumor while waiting for the trial.

Basing their case on the 2005 Chaoulli Supreme Court of Canada case that struck down Quebec’s ban on doctors accepting private insurance for medically necessary services, the plaintiffs are expected to argue that individuals should be allowed to buy health insurance that can be used to purchase medical services from private clinics if they cannot receive those services in a timely manner from the public system.  The Chaoulli ruling found that prohibiting Quebecers from spending money to access health care when lengthy waiting lists essentially rendered public care inaccessible, “infringes the right to personal inviolability and that it is not justified by a proper regard for democratic values, publicorder and the general well-being of the citizens of Quebec.” The case is expected to eventually be heard before the Supreme Court of Canada.

Public reaction has been swift and strong, particularly among those who feel a private health care system competing with our iconic public system is anathema to Canadians. Some believe that a win for Dr. Day would be “disastrous for Canadians”, leading to a two-tier system, skyrocketing health care costs, longer wait times in the public health system, and all the “good” doctors being lured away from the public system by the promise of more profitable practices in the private system.

But would it?

Is it possible, for example, that wait times for everyone would be reduced because those who are willing to pay out of their own pocket remove themselves from the public queue, thus shortening the line for others, not to mention that more money flowing into the system in general translates into more equipment and the ability to take advantage of new technologies? And while we’re on the topic of where money is flowing, according to a report published by the Fraser Institute, more than 46,000 Canadians sought treatment outside of Canada, many, presumably, because they chose not to endure lengthy waits at home. This represents a substantial economic opportunity cost to our country.

Perhaps the biggest worry is that all the “good” doctors will move over to the private system. That assumption however misses the bigger and more disconcerting fact that surgeons who can’t get enough operating room time because there isn’t sufficient money available under the current public system to keep operating rooms going 24/7 are at risk of seeing their skills erode. Surgeons need to use their skills or they will lose them and today’s sad reality is that there is not enough public money available to pay them to practice their craft sufficiently. If the naysayers are afraid of the possibility that the public system will lose “good” doctors if the law changes, they should perhaps also be aware of the reality that we definitely will lose good doctors if it doesn’t.

A comprise is possible. A market-based health care policy that combines public and private health care could reap the same kinds of positive benefits currently being realized in countries like Belgium, France, Germany and elsewhere. And there is no reason that the government can’t require doctors who choose to be paid by private funds to donate a certain percentage of their time to the public system.

This case has been delayed several times, most recently being postponed until March 2nd, but when and if Dr. Day gets his day in court, he will most certainly face an uphill battle and sadly for the patients whose health is deteriorating as they wait for both care and the outcome, it is a political battle much more than one about their medical care. Let us hope it leads to much needed reform to the Canadian health care system before there are even more casualties.


Several years ago I was fortunate enough to have been selected as a Tremayne-Lloyd Fellow here at Western Law. I used the funds to finish a book and to begin work on a new one. It dawned on me far too late that I had never thanked you for that splendid gift. The new book is to be published by Harvard Press in 2010. The TTL Fellowships provided ritual seed capital for this project, which required me to spend a good deal of time and money at The National Archive in Washington. Again, with many thanks.

R. W. Kostal Professor of Law and History

Tracey Tremayne-Lloyd Health Law