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.

Tuesday, March 18, 2008

Government trying to keep evidence from Frank Paul inquiry

Frank Paul's death almost 10 years ago has raised harsh questions about racism in B.C. Police, the justice system, the provincial government are all under a dark cloud.
Now some key players - the government prosecutors who decided not to lay any criminal charges in the case - are trying to avoid scrutiny at the public inquiry belatedly called into Paul's death.
It's a grim story. Three weeks before Christmas in 1998, two Vancouver police officers found Paul semiconscious in alley. They called a patrol wagon to take him to jail. A video shows the native man being dragged from the wagon to a hall outside the cells.
A nurse walks past. Then an officer decides Paul isn't drunk. He's dragged out of the jail by his feet.
The officers drop him in an alley. Hours later, police find him dead.
And then, for the next nine years, stonewalling and cover-up. None of the people or institutions that should have been concerned - the coroner, the police complaints commissioner, the police board, the solicitor general, the premier - did anything.
Until last year, when mounting pressure from First Nations and human rights advocates forced the government to call a public inquiry.
The inquiry evidence hasn't got that much attention, but it has been important. One police officer offered emotional testimony, expressing his remorse at leaving Paul to die.
Another insisted that the man was not drunk, even though he couldn't walk out of the jail.
Larry Campbell, then coroner, now senator, couldn't offer a good reason why he hadn't ordered an inquest.
Then solicitor general Rich Coleman has yet to explain why he rejected the police complaints commissioner's request for a public inquiry. Coleman feared, among other things, that an inquiry would uncover allegations of racism against the Vancouver police. That seems a reason to hold an inquiry, not to avoid one.
The inquiry has been hearing from the witnesses it considers important.
Until now. The provincial government is going to court to try and prevent Crown counsel from testifying about the decision not to lay any charges against the officers involved in Paul's death.
Inquiry commissioner William Davies has ruled that he wants five Crown prosecutors to testify about the procedures they followed in deciding against charges in the case.
Davies noted that the Criminal Justice Branch of the Solicitor General's Ministry was one of the public bodies specifically identified as subject to review in the inquiry's terms of reference.
"The branch is currently under a cloud, for its response to Mr. Paul's death. It is too early to tell whether or not that cloud is warranted," he said.
But the government is going to B.C. Supreme Court to oppose the requirement that Crown prosecutors testify at the inquiry. Its reasons are unconvincing.
The government argues that prosecutors should not have to account for or explain their decisions to lay charges or decide against them under any circumstances.
Having them testify "opens the door for government, special interest groups and others to put pressure on Crown prosecutors to proceed with criminal charges in circumstances where it is not warranted."
There are three problems with the argument. First, it's unclear how having the prosecutors explain their thinking and the process allows special interest groups to pressure them. Especially given how infrequently such inquiries are called.
Second, it suggests that there is no accountability for prosecutor's decisions not to lay charges. Judges' decisions can be appealed; prosecutors, under this model, would be not just independent but omnipotent.
And third, the attempt to block the evidence from being heard suggests the government still does not understand the critical need for answers in this case.
Frank Paul's death was followed by years of actions that prevented the truth from coming out. The government shouldn't be continuing that secrecy.
Footnote: The B.C. Supreme Court is unlikely to hear the province's arguments until May. Meanwhile, the continued efforts to keep prosecutors from providing evidence is angering First Nations organizations, which complain the government is reneging on Attorney General Wally Oppal's promise of a full and open inquiry into Paul's death.