On Friday, July 15, the B.C. Court of Appeal explicitly acknowledged the plight of thousands of British Columbian patients on waiting lists. However, in a ruling worthy of Orwellian doublespeak, the court proceeded to deny them the right to do anything about it in the name of “fundamental justice.” This despite the fact that every other developed country with a universal health-care system allows patients to seek care privately when they choose to do so.

And many of these “private alternative” countries deliver more timely access to care with better access to physicians, medical technologies and hospital beds despite costing the same or less than Canada’s vaunted public system.

While the Supreme Court of Canada will almost certainly be asked to hear an appeal, British Columbians will remain locked within a system that—in the court’s own opinion—deprives them of the right to life and security of their person.

The case, now in its 13th year of litigation, is spearheaded by Dr. Brian Day, former head of the Canadian Medical Association, along with four of his patients. Dr. Day’s surgical clinic in Vancouver provides privately-funded medical services to patients failed by the public system and patients with access to private services through other programs. However, the manner in which the clinic provides these services is in violation of B.C.’s Medicare Protection Act, which places severe limitations on private insurance, direct billing and extra-billing for medically necessary services.

To be clear, Dr. Day is in no way interested in or advocating for the dismantling of Canada’s cherished universal health-care system—in fact, he’s a proponent of universal health care. However, he’s also intimately familiar with Medicare’s failings and understands the importance of offering patients a pressure valve to relieve the burden on the public system. As such, the doctor and his patients simply argue that B.C.’s regulations go too far by limiting their options for recourse when the public system fails and is unable to deliver timely access to care.

There’s no doubt that the province’s system is failing patients seeking timely care. The annual survey of physicians (published by the Fraser Institute) reported a median wait of 26.2 weeks in B.C. between seeing a general practitioner and receiving treatment in 2021, with an estimated 212,482 patients waiting for care. While some of this is due to COVID-related backlogs, the same survey reported a median wait time of 24.0 weeks in 2019—before the pandemic started.

Of course, wait times are not benign inconveniences. They can result in poorer outcomes from care or more complex treatments because of deteriorating medical conditions. In the worst cases, waiting too long may also result in patients paying the ultimate price—death. This is not hyperbole. A recent report revealed that at least 11,581 patients died while waiting for surgeries, procedures and diagnostic scans in Canada in 2020-21.

Again, Canada’s wait times are also much longer than in other universal health-care countries. For example, the Commonwealth Fund’s international surveys routinely rank Canada last (out of 10 universal systems) for wait times to see a specialist and receive elective surgery. Time and again, fewer Canadian patients report being able to receive timely treatment compared to their international peers. For example, in 2020, only 38 per cent of Canadians reported waiting less than four weeks to see a specialist—far less than Dutch (69 per cent) and Swiss (68 per cent) participants. And while only 62 per cent of Canadians were waited less than four months for elective surgery, 99 per cent of Germans received treatment within that timeframe.

All three of these countries have universal health care. The difference? None of them have the sort of prohibitions on private alternatives and patient cost-sharing that Canada does. Rather these countries—and others including Australia, Sweden, France—understand the importance of embracing the private sector as a partner or pressure valve.

Today’s ruling ensures that British Columbians will continue to be denied the right to seek treatment from physicians like Dr. Day closer to home, and instead be forced to cross international borders to receive timely treatment. It also ensures that B.C.’s health-care system remains a poor performer in international comparisons, failing to delivery timely care to patients while still serving taxpayers an oversized bill for their care. While it’s hard to understand who exactly won in today’s decision, it’s abundantly clear that patients lost.