VANCOUVER—In the final days of a landmark case challenging the basis of Canadian health care, the lawyer for a B.C. doctor is arguing that preventing patients from accessing private health care would increase suffering and violate their right to life.

On Monday, closing arguments began in what has been a decade-long legal battle. Dr. Brian Day, the CEO of Cambie Surgical Corp., is challenging the Medicare Protection Act of B.C. for the right to provide private health care for medically necessary services.

Observers say the case has the potential to open the door to a two-tiered system of private and public health care in B.C.

The central argument by Day’s lawyer, Peter Gall, to be explained over the next week, is that waiting for diagnostic and surgical services causes harm to patients in the form of “physical and psychological suffering;” there are long wait times in the public system; and that patients should have the right to access private services that offer a way to alleviate that harm. Gall further argues that lifting restrictions on private care would not affect the public medical system.

"The public system can't provide timely diagnostic and medical services to everyone," Gall said in court.

"The government can't then prevent patients from taking their own steps, their own measures to alleviate their suffering and protect their health. That's what this case is about."

Gall also said he would be using several other landmark health cases to help make his argument. One is the Supreme Court of Canada’s 2011 InSite ruling that allowed supervised drug-injection clinics to operate. Gall argues the Supreme Court ruled in favour of taking down restrictions to health care in favour of a patient’s right to life.

Day said in a news conference outside the courtroom that when he started out as a doctor in the 1970s, wait times were nearly non-existent. But after a decade in the field, he saw his operating room hours get reduced “from 22 hours to five,” while wait times for patients grew.

Day said he sees the private system as a necessary solution to this problem.

“A little competition will improve the system,” he said. “The system is broken, otherwise we wouldn’t be here.”

Government lawyers say in written closing arguments that Day's claims that the plaintiff patients having been deprived of life, liberty and security of the person under Section 7 of the charter are problematic because those protections apply to issues of justice, not health care.

Rather than a constitutional challenge, the government alleges Day's case amounts to "political theatre" and an attempt to force change on the health-care system for the financial benefit of doctors who can earn more money from wealthy patients going to private clinics.

The province also says Day's lawyers have failed to establish that patients suffer harm by waiting for services.

Public health-care supporters, including interveners in the case such as the B.C. Health Coalition, were also present in court.

“I find it really brutal they were using examples like InSite, which are a part of the public health-care system, that would be harmed if they lifted the ban on private insurance,” Edith MacHattie, a representative for a coalition of interveners, said in an interview. “You only have to look to the States to see the predatory nature of insurance companies.”

She added that doctors are already allowed to practise “entirely privately”, but that these businesses weren’t profitable enough without charging the province for medically necessary services covered under the health-care system.

“They can’t make enough profit. That’s why they want the public to subsidize their businesses, so they can make enough money.”

Day legally opened the Cambie Surgery Centre in 1996, saying he wanted to create more operating-room time for surgeons who couldn't get it in public hospitals and that profit was never a motive. The facility has been operating since 2003 in violation of provisions of the Medicine Protection Act that haven't yet been proclaimed into law.

The case, first started in 2009, landed in B.C. Supreme Court in 2016 with support from four of Day's patients.

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In 2018, Health Minister Adrian Dix announced the government would begin to fine doctors $10,000 for a first offence and $20,000 for a second violation of the act if they charged patients for publicly available services. Dix said the “don't ask, don't tell” approach, which allowed private-clinic surgeries and diagnostic tests to continue because provisions of the law had not been enforced, would come to an end.

However, Day successfully sought an injunction that prompted a B.C. Supreme Court judge to order the government not to enforce sections of the act until their validity could be established at trial, which is expected to conclude Dec. 6.

With files from the Canadian Press.

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