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More Canadians would face financial hardship or even — in extreme cases — "medical bankruptcy" from paying for private care, he writes.

"Anything like a user fee is a barrier to people being able to receive medically necessary care and

"The priority of the Medical Services Commission and the Ministry of Health is to uphold the Medicare Protection Act and the benefits it safeguards for patients in this province," B.C. Health Minister Terry Lake said in a statement on Tuesday. "We expect and require these clinics to come into full compliance with the law, and we remain fully committed to seeing out this case to its resolution." The ministry said it could not comment further because the case is before the courts. But the federal government is also watching the proceedings closely and has sought intervenor status in the case. In a statement from Ottawa, Health Canada said many provisions of the B.C. legislation mirror those of the Canada Health Act, "making this case of significant importance not only to British Columbians, but to all Canadians."

Given that Canadians "overwhelmingly" support universally accessible health care, "any challenge to a principle so fundamental to our health-care system is of significant concern to the Government of Canada." During a federal Liberal caucus retreat in Saguenay, Que., last week, Health Minister Jane Philpott said the case and the prospect of health-care privatization are a cause of "concern" for her. "I think I have made it very clear on repeated occasions that our government is committed to firmly upholding the Canada Health Act. The Cambie case deals specifically with that, with the provision of services," she told reporters. "It's fundamentally important to the health-care system in the entire country, not just in British Columbia, that we make sure that medically necessary services are universally insured and there are no barriers to access of those services." Ms. Philpott acknowledged that some health-care services in Canada are delivered privately, citing physiotherapy, which is largely carried out in private clinics because it is not included under the Canada Health Act.

But she said anything similar to a user fee is a barrier to people being able to receive medically necessary care. Ultimately, Dr. Day said, the law, facts and evidence are on the side of his argument that Canadians would best be served by a "hybrid" health-care system. "I kind of hope the judge doesn't hear that, and our lawyers would be nervous to hear that, but that's what I believe," he said. Within that system, public hospitals would offer private services and private hospitals would offer public services. He said he also wants to see competition between and within the systems. "Competition breeds excellence," Dr. Day said. © 2016 The Globe and Mail Inc. All Rights Reserved.

Dr. Brian Day's court challenge is underway in Vancouver. The main issue is whether Canadians should be permitted to pay privately for "medically necessary services" already covered by their provincial health plan. Is there a need for increased private health care in Canada? If so, can it be implemented without jeopardizing the public system?

Philpott admits "innovation" is required. Yet governments are constrained by blindly adhering to certain parts of the CHA, while ignoring others. As Ben Eisen of the Fraser Institute has emphasized, provinces have been forbidden to experiment with user-fees, copayments, etc. that would encourage individuals to use health services more responsibly. A "two-tier" system has always existed. Federal prisoners, Workplace Safety and Insurance Board patients, members of the military and RCMP, politicians and professional athletes usually obtain more timely care - often at private facilities. For those not near an inter-provincial border and not a member of a "special group," the main option for timely care may be to go to the United States. This provides employment to American doctors and nurses and profits to U.S. hospitals. Wouldn't it make more sense to allow all Canadians to spend their after-tax discretionary income on health in their own province? Frozen hospital budgets have caused excessive wait times for knee and hip replacements as operating rooms often don't function at full capacity. According to a 2013 survey, 15 per cent of Canadian surgeons considered themselves underemployed and 64 per cent cited poor access to ORs. About 25 per cent of nurses in Newfoundland and Labrador work only part of the year.

If orthopedic surgeons had access to additional "private" OR time, wait times could be shortened for all Canadians and new employment would be created for health-care professionals. If hospitals were permitted to operate electively on Americans and other foreign patients, this would bring in extra revenue and relieve the strain on provincial health ministries. So that MDs did not abandon the public system, they could be required to work 25 to 30 hours per week in the public system in order to receive government reimbursement for malpractice insurance. Most MDs would confine their practice to the public system. They deserve fair treatment. Philpott should amend the Canada Health Act to mandate binding arbitration when provincial negotiations fail, as they have in Ontario. Since 1984, the population has grown and aged, new diseases have been recognized, and new drugs and technologies have developed. Some 32 years ago, it was understood that Ottawa would pay half of health costs. Now it covers less than a quarter. We need to amend and modernize the Canada Health Act. Where wait times are excessive, certain diagnostic services and surgical procedures should allow for private access for all Canadians - not just a select few. This would maximally utilize expensive equipment and provide new employment for nurses, technicians and surgeons. It would provide extra revenue that would help to keep universal public health care sustainable and accessible for all Canadians. Ottawa should then enforce all sections of the Canada Health Act on all provinces and territories. Dr. Charles Shaver Ottawa

The intervenor coalition includes Canadian Doctors for Medicare, Friends of BC Medicare, Glyn Townson, who has AIDS, Thomas McGregor, who has muscular dystrophy, and family physicians Dr. Duncan Etches and Dr. Robert Woollard, both professors at the University of British Columbia. A second intervenor group representing four patients also warned that the Charter challenge would lead to an inequitable health system across Canada. “This case is indeed about the future of the public health care system, in its ideal and actual forms,” said the group’s lawyer Marjorie Brown, according to a report in The Globe and Mail. Cambie and its co-plaintiffs, who made their opening argument last week, say the BC law barring extra billing, so-called dual or blended practices and the use of private insurance for publicly covered services violates Sections 7 and 15 of the Canadian Charter of Rights and Freedoms.

A successful Charter challenge in BC would mean an inequitable health system, where those who can pay get priority service, states an intervenor coalition.

Moreover, they claim the prohibitions exacerbate the under-funded public system’s problems, especially waiting lists for various treatments and surgeries. Allowing a “hybrid” system would relieve the strain. The coalition brief, echoing the BC government’s lengthy opening argument, said there’s no evidence that creating a two-tier system would reduce wait times. But there is a risk of hollowing out the public system as resources migrate to the more lucrative private alternative. Those who couldn’t afford private insurance could still find themselves waiting for treatment, thus undermining the principles of universality and equity spelled out in the Canada Health Act, Latimer said in her submission. Latimer also questioned whether the legislation falls within the scope of the Charter, more often invoked to overturn criminal laws, not those with socio-economic objectives.

“This legislation is intended to protect the right to life and security of the person of all British Columbians, including the vulnerable and silent rights-holders whose equal access to quality health care depends upon the challenged protections,” Latimer stated. There’s also a risk of sapping the public system of not only doctors but nurses, lab technicians, administrators and others drawn to the more lucrative private market, the brief said. Dual practices could also foster “cream-skimming,” where private clinics handle simpler but profitable procedures, leaving complex cases to the public system. The British Columbia Anesthesiologists’ Society, intervening to support the challenge, will be making arguments later in the trial, which is due to last at least until February 2017. The federal government is expected to begin making arguments in several months.