Values, politics and evidence in the trial of Day vs Bc gov.

The legal battle between Dr. Brian Day’s Cambie Surgery Corporation and the British Columbia government on the issue of allowing private funding for medical care began September 6th 2016 in the BC Supreme Court. This is an important case which could have deep-reaching impact on the way health care is funded in Canada and the rules about who pays what, and who gets treated, when.

Over the next months – and likely years – the trial and its potential impact will be abundantly commented. Pundits on both sides will try to win the public opinion battle and in the process we will hear and read plenty of rhetorical tricks and overinflated pathos as well as highly selective examples from other jurisdictions used as shortcuts to escape tough technical debates. It might then be timely to discuss what this case is really about.

First, this legal case is about the way we fund health care in Canada, not about the way care is provided and this distinction is central to keep in mind. Throughout the country, physicians are overwhelmingly private entrepreneurs who have a great deal of liberty in their practice. Moreover, technological developments make it possible to offer a growing portion of care outside of hospitals. Because of this, private clinics paid by provincial plans contribute a growing proportion of the care offered. Overall, the rhetoric about unjust restrictions on the private delivery of care (and the marvellous efficiency of the private sector) are nothing but one of the many straw men in this debate.

Overall, the rhetoric about unjust restrictions on the private delivery of care (and the marvellous efficiency of the private sector) are nothing but one of the many straw men in this debate.

 

Even when it comes to private funding, the restrictions in place are far from drastic. For example, doctors in Canada can decide to work outside of Medicare, and in most provinces treat whoever they want for whatever they may have and bill them the amount they wish. There is nothing that forbids private practice. Even for doctors working within Medicare, depending on their province and specialty, a significant portion of their practice can be paid-for either privately or through para-public insurance. What Dr. Day and his co-plaintiffs want isn’t about allowing or not private practice but rather about removing some of the few – but highly important – constraints on what doctors are allowed to bill to whom.

What Dr. Day and his co-plaintiffs want isn’t about allowing or not private practice but rather about removing some of the few – but highly important – constraints on what doctors are allowed to bill to whom.

 

Specifically, the Cambie clinic case is about allowing doctors to bill both provincial health plans and patients at the same time, permitting doctors enrolled in provincial health plans to also sell medically necessary services in the private sector, and allowing the sale of private insurance to cover such fees. This would undoubtedly bring more money in the system and increase the total health expenditures. But in their day to day, most people don’t really care about provincial or national total health expenditures (although they should, as any good macro-economist will tell you). What people do care about is access to care when and where they need it.

This brings us to the second important element in this case. The relationship between an increase in the amount of money invested in health care and actual access to care is all but obvious. This may be counter-intuitive but whether you compare countries or provinces that spend a lot with those that don’t or whether you look at time trends within provinces, pouring more money in the health care sector does not mechanically improve care or access to care. The real question is then whether allowing more private money to flow in the current provincial health system would actually improve access.

This is a surprisingly tough question and one should be wary of anyone providing a simple and neat answer. Private funding poses obvious equity issues, although sophisticated public regulation of private insurance can dampen most of it (as most European insurance systems show). In terms of public debate, however, as soon as the discussion reaches the shore of the relative merit of the various policy instruments used to regulate the health care system, there is no way to escape a complicated, jargon-laden technical debate that will bore almost any ordinary person out of their minds. Incidentally this is usually when throwing a few cherry-picked examples from abroad in the debate, as if they proved anything, usually closes the discussion.

How can we, as a society, have an intelligent and informed debate on the way we want to regulate health care funding?

In our view, this is one of the core challenge of the debate spurred by the trial. How can we, as a society, have an intelligent and informed debate on the way we want to regulate health care funding? The starting point here is about values. What criteria should influence decisions about who pays what and who gets treated when? Then how to coherently link those values-laden choices with funding regulation policy. Those are important matters. This case could threaten the survival of the Canada Health Act as we know it. If things go sideways,a devastating blow could be dealt to the Canadian ideal of providing universal coverage for care.

The fact that such an important social and technical debate is going to be arbitrated by the judicial system is a testament to the political failure of both provincial and federal governments in keeping laws and regulations in line with rapidly evolving technology and expectations. And though it should have been done before, it is still time to have a debate focused on values and evidence rather than wait for the Supreme court to formulate our health policies.

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