Friday, March 21, 2008

Nurses' union wins round in fight against two-tier care

It's been one of the great frauds in B.C. Governments have proclaimed the importance of equal access to health care, while ignoring the expansion of clinics that offer special treatment for those who can pay.
The clinics and surgical centres are routinely breaking the law, both the Canada Health Act and the province's Medicare Protection Act. It's illegal to charge a premium for services covered by the Medical Services Plan.
You can buy optional treatment, like cosmetic surgery.
But you can't pay extra so your son is treated ahead of some other, sicker child.
That's the service the various clinics and centres offer every day. But the provincial government chooses to pretend it's not happening.
We are supposed to live by the rule of law. But there's little recourse for the average citizen when a government decides it's above the law.
Or there didn't seem to be. The B.C. Nurses' Union has changed that.
I like judicial activism. Ideally, people could count on their MLA or MP to stand up for them and the law.
But with almost all power in the premier's or prime minister's office, that won't happen. So the courts stand in for our local elected representatives.
The nurses' union filed a lawsuit in B.C. Supreme Court against the attorney general and Medical Services Commission for not enforcing the Medicare Protection Act and allowing two-tier care.
The government argued the case should be tossed out. It was none of the union's business whether the government enforced the law, the lawyers said.
And who says the government has to enforce its laws anyway, they argued. (I'm paraphrasing; for the source, go to Click on this week's Supreme Court decisions in the menu on the left.)
Justice Stephen Kelleher disagreed. "What the union is doing in pursuing this position is well within what a democratic trade union normally does in our society," he ruled. "The courts have recognized that unions have a legitimate role to play in engaging in broader political and social processes of society." The union's members would be hurt if the basic principles of medicare were abandoned, he noted.
It seems a stretch. I'd argue that a union's role is to represent the interest of its members.
But the ruling also seems in the public interest. It's important that sick kids' opportunity to get medical care shouldn't depend on their parents' ability to pay.
If the government won't enforce the law, and individuals can't afford to, perhaps unions have the responsibility be default.
This is, once again, one of those issues that cuts across party lines. The expansion of two-tier care really got going under the NDP government in the 1990s. It stood by while private clinics and surgical centres started offering speedy treatment for those willing to pay to jump the queue in the public system.
The Liberals have mostly continued to practice willful blindness as two-tier care expanded in obvious violation of the law.
The federal government fines the province for Canada Health Act violations related to user fees most years. B.C. has the worst record among provinces. But nothing happens.
There was a brief flurry of provincial interest in enforcing the law. In late 2003, then health care minister Colin Hansen brought in legislation to uphold the Canada Health Act and prevent two-tier care. It was debated and passed in the legislature with overwhelming government support.
But three weeks later, Premier Gordon Campbell apparently changed his mind. The law has never been put into effect.
So far, Canadians have supported the principles of the Canada Health Act, particularly the notion that care should go to those who need it most, not those with the biggest bank accounts.
But in B.C. - and other provinces - governments have chosen not to enforce the law. The union's legal action lawsuit might change that.
Footnote: The lawsuit, launched three years ago, doesn't challenge the private delivery of services, only some operators' practice of charging extra fees for speedier access. Governments are free under the law to contract with clinics for necessary treatments, as long as the patient doesn't have to pay any extra user fees.


Anonymous said...

Kelleher Got it Right

PW wrote: "I'd argue that a union's role is to represent the interest of its members."

I'd say that if the BCNU - or any other union - solely focussed on the immediate 'interests' before their members they would be abdicating their greater social interest policy advocacy to those whose interests may not be fully aligned with the union's members - Kelleher seems to agree: "What the Union is doing in pursuing this position is well within what a democratic trade union normally does in our society. The courts have recognized that unions have a legitimate role to play in engaging in broader political and social processes of society."

A contentious subject for sure... It will be interesting to see how the BC Appeal Court and (perhaps) the Supreme Court of Canada deal with these questions of interest.

The Kelleher decision - 2008 BCSC 321:

Gazetteer said...

Mr. Willcocks--

Thanks for putting this into context in a way that allows us to see the true import of the story.


Dawn Steele said...

We're seeing a steady shift towards two-tier services for kids across the board, not just in the hospitals.

The drastic erosion of special education services in our schools over the past decade means that getting struggling kids the help they need to succeed depends largely on whether parents can afford to hire private tutors and/or place them in costly special private schools like Glen Eden or the Fraser Academy.

The shift to individualized funding for everything from early intervention to respite services for young children with developmental challenges allows governments to hand everyone a cheque that doesn't actually cover the service needed. So only those who can afford to top up privately get adequate service for their preschoolers.

Even the new early learning initiatives, like the one where the preschoolers need to be accompanied by a parent, discriminate against poorer working families.

And then at the federal level, we have the shift to tax credits vs. actual child care, which again provides inequitable benefits to those in higher tax brackets.

You're right, Paul. Many of these shifts did start under the NDP and were intensified under the Liberals. Shifting the social burden onto families and individuals is a natural response to our relentless pressure for tax cuts and containment of government costs.

As long as this is the key lens by which we evaluate the worth of political parties, the trend will continue, no matter whom we elect, and we can expect our society to continue down the road towards "every man for himself, and the devil take the hindmost."

Anonymous said...

I'm pleased to see the nurses take time and their own money to go to court.Kelleher did the right thing as well. Why do working people have to go to court to resolve rights? if workers don't have money for the long haul certain governemtns would and will ride roughshod over them and us,