Government Not Enforcing Health Laws

May 18, 2007

The provincial government recently stated that user charges for emergency health care services provided at the new False Creek Urgent Care Centre are legal. Minister of Health George Abbott says he would not have any basis for legal action because the doctors providing urgent care at the clinic are from outside the province.

We would suggest the minister read his own legislation before making such pronouncements.

BC and federal public health care laws exist for good reason. They were created to advance the public interest and to protect patients from being gouged, exploited or abused, especially when they are ill and vulnerable. The laws are meant to safeguard certain basic principles that Canadians hold dear; for example, that people should not be able to pay to jump the queue, and doctors and for-profit clinics should not be able to place the long-term strength of the public system at risk.

Canadians want laws to protect the public health care system in which we all have a shared stake - rich and poor alike. This is why medicare laws ensure that access to health care is based on need, not on how much money we have. And we have chosen to build a non-profit system in order to ensure that scare dollars are not diverted to foreign and Canadian shareholder returns.

BC is violating the federal Canada Health Act if it fails to prevent extra user charges to ill patients by businesses like False Creek Surgical Clinic.

Under the Canada Health Act, provinces that allow providers to charge extra for publicly-insured hospital and physician services are breaking the law. Indeed, in 1995 then-federal Minister of Health Diane Marleau affirmed that charging patients for insured hospital services - regardless of where they're delivered - is illegal.

But provincial law is also broken when clinics and other providers charge for services covered by the Medical Services Plan (MSP).

Patients who use the False Creek Urgent Care Centre will have to pay a fee of $199 for a physician consultation that, under MSP, costs between $60 and $80. A spokesperson for the company said these higher fees might be necessary to get the return on investment - that is, profit - that the owners were expecting.

BC's Medicare Protection Act protects patients from unscrupulous user charges by health care professionals. Under this law, services covered by the public insurance system - MSP - can't be covered by private insurance. Doctors can either bill MSP directly or bill the patient who in turn is reimbursed by MSP. But doctors can also unenroll from MSP altogether; in these cases they directly bill their patients who are unable to seek a reimbursement from either a public or private insurer. For obvious reasons, very few doctors are unenrolled.

False Creek Urgent Care Center said it had recruited doctors who are not enrolled in BC's MSP. In response, George Abbott said "it would appear we would have no basis for any legal action against the clinic." However, Abbott's legal spin is out of sync with the law. Both the Canada Health Act and the Medicare Protection Act prohibit any physician, regardless of whether they are enrolled or not, from billing patients a higher fee than the MSP rate. False Creek Urgent Care Centre can charge patients directly, but not for more than the fee allowed under the Medical Services Plan.

So Mr Abbott is wrong. Not only is False Creek in violation of provincial legislation, but BC is guilty of violating the Canada Health Act. Either way you look at it, the new urgent care clinic is billing on the wrong side of the law, not to mention the principles Canadians hold dear, if it charges a rate higher than the one set by MSP.

It is tempting to say that Minister Abbott is turning a blind eye to these legal options. But in fact he's doing the opposite: he's carefully side-stepping his obligation to uphold the law and thereby protect and advance the public interest. In the process, he is actively encouraging the proliferation of for-profit clinics, and encouraging the development of a health care system based on cash, not need - exactly the opposite of what British Columbians have told the government, in the Conversation on Health, they want.

It's up to the legislature, the cabinet, and the Minister of Health to make sure the laws are upheld - after all, they're supposed to put the interests of British Columbians and vulnerable patients first, not those of health care investors.

Colleen Fuller is a health policy analyst and research associate with the Canadian Centre for Policy Alternatives' BC Office. Stuart Murray is a CCPA researcher.