Access to care and access to justice

Issue: BCMJ, vol. 59 , No. 4 , May 2017 , Pages 209 Editorials

Physicians often act as “expert” witnesses at trials involving accident claims. In the current constitutional trial, I will soon—for only the second time ever—appear in court as a “non-expert.”


“In the current marathon medicare case… almost half the [8] months of expensive court time has been consumed on arguments about expert credentials, procedural wrangles, and government motions to block evidence.” Ian Mulgrew, Vancouver Sun, 17 March 2017.

Physicians often act as “expert” witnesses at trials involving accident claims. In the current constitutional trial, I will soon—for only the second time ever—appear in court as a “non-expert.” My first time was as a 5-year-old witness in a Liverpool criminal trial. Someone had stolen a watch from a child. I had to identify the thief in court and describe the incident. He was convicted and jailed. I was the child. I remember there was much pomp and ceremony as the judge, wearing a crimson gown and an impressive wig, arrived in a chauffeured Rolls-Royce, a Union Jack flapping from the front fender. I now joke to lawyers that I have an unparalleled 65 years of court experience.

In court we (the Cambie Surgery Centre and six patients) are opposed by 22 lawyers and a large team of paralegals and consultants. Government has a limitless budget—our tax dollars. I console our lawyer, usually alone in the courtroom, with the David and Goliath story.

Canadian courts have some formalities such as the wearing of gowns, bowing, and (cynically) calling each other “friends.” Doctors would flinch at the often discourteous dialogue between opposing lawyers and our witnesses. Professionalism is not very evident and the manner of speech is often rude, aggressive, and ignorant. If doctors interacted similarly with one another, or with patients, we would be disciplined for unprofessional conduct.

The trial has been plagued by constant interruptions and objections, citing archaic protocols such as hearsay rules or opinion evidence. Government lawyers objected to an ophthalmologist with 25 years’ experience defining glaucoma because he was not an “expert.” Some interruptions appear designed to disrupt a witness’s train of thought and delay the process, perhaps in an effort to bankrupt us and thereby end the case.

Government backtracked on a pretrial agreement to accept submitted expert reports, forcing us to obtain additional reports, causing further expense and delays. Government violated the rules in not disclosing 300 000 documents until 7 days before the earlier 2016 trial date, causing another financially harmful delay. A national charity, the Canadian Constitution Foundation (https://theccf.ca), is helping fundraise and our lawyers are frugal and efficient, but the government’s strategy of pressuring us financially represents a serious threat.

The court has heard protracted arguments and objections aimed at preventing factual evidence from being presented. Government appears to have no other strategy or planned route to victory. They argue that government reports and publications should not be allowed into evidence. The BC Health Minister was called as a witness, and they opposed his appearance, arguing he had nothing to contribute (he has publicly declared that countries in Europe, and Australia and New Zealand outperform us). 

Since September 2016, I have observed the justice system from the perspective of an individual sitting in the courtroom. It is clear that access to justice in Canada is even worse than access to care. After a near 8-year wait for trial, we have already spent over 8 months in court. The Chaoulli v. Quebec (Attorney General) case lasted just a few months.

BC lists over 85 000 patients on wait lists, timed from when the hospital booking is received. The true numbers are much higher. Government has argued that none of these patients deteriorate or suffer while waiting and have even argued that it’s good to wait. 

Patrick Monahan, former dean of Osgoode Hall Law School, has written: “We conclude that where the publicly funded system fails to deliver timely access, governments act unlawfully in prohibiting Canadians to use their own resources to access those services privately.”

In 2005 the Supreme Court of Canada ruled that Quebec citizens have the right to purchase private insurance. They stated that Canadians are suffering and dying on wait lists. Government lawyers must, therefore, win the argument that, unlike those in Quebec, BC patients should suffer and die on wait lists.

In a world based on logic, this trial should have lasted a few hours. Let’s hope that logic and reality can overpower the strategy of obfuscation that government lawyers are following in this case.
—BD

Brian Day, MB. Access to care and access to justice. BCMJ, Vol. 59, No. 4, May, 2017, Page(s) 209 - Editorials.



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