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Underneath the legal drama: The ethics of for-profit health care in B.C.

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Photo: 401kcalculator.org/flickr

One of the most important constitutional trials in Canadian history was set to begin on September 8, 2014 before the B.C. Supreme Court. Dr. Day, owner of the for-profit Cambie Surgical Centre says he is fighting for the freedom of patients who are victims of "medical enslavement," while making generous and unlawful profits well above what the government and his own profession have identified as fair. These arguments were to be heard in a costly 24-week trial that pits our public health system against the two-tiered, free-market alternative he proposes that patients have a right to in a free society.

Yesterday, at the request of Cambie's legal team, the trial was postponed for 6 months. The complicated and expensive legal proceedings will recede from the public eye in the coming months, and we hope for a resolution out of court that will be less costly and uphold and improve public health care in Canada. But whether in the courts or behind closed doors, this is an opportunity to turn our attention to the blinding ethical discord that lies beneath the growing for-profit health-care industry in Canada.

With legal distractions temporarily swept aside, British Columbians have the opportunity to better understand the complex story behind the push for for-profit care, and learn about solutions that will lead to #bettermedicare. This story has three parts: The first is the obscurity of the finances of highly profitable clinics like Cambie. The second is the inaccessibility of for-profit services for the vast majority of patients. The third is the vulnerability associated with pain and illness, and the particular implications of financial strain in times of pain and uncertainty. The story is one of egregious ethics.

Obscure finances of for-profit clinics

The courts have yet to see a clear picture of Cambie's financial records. Private corporations need not disclose their financial records publicly, and so neither the profits nor the cost-effectiveness of Cambie's services are known. The Medical Services Commission audit of Cambie was similarly stalled by obscured financial records, and after 2 years, the MSC was only able to access one month of data; in that month, they found half a million dollars of unlawful billings (these unlawful billing trends are ongoing). The profit at stake in this case is tremendous, not only in the operations of the Cambie Surgical Centre, but in the potential legal precedent for free-market enterprise in Canadian health-care delivery. If Cambie wins this case, health care could thereafter be freely traded between Canada and the U.S. under NAFTA without option to restrict the growth of for-profit care that would spill northward from the U.S. due to our free trade agreement. The enormity of financial interests in this case are difficult to overstate.

Not a health system solution

Services provided at boutique for-profit clinics like Cambie do not serve the majority of the population. In a context of rising income inequities this is particularly poignant, as an increasing proportion of the population can't afford their steep premiums for care. They also provide a restricted list of services that don't require complex care: largely opportunities for patients to jump to the front of the wait-lists to see specialists, and day procedures. Complex procedures or procedures for complex patients who need overnight stays, specialty medical or multidisciplinary care, simply aren't as profitable, and so they aren't offered. For-profit clinics like Cambie provide freedom for the wealthy to jump to the front of wait lists, while siphoning doctors and nurses from the public system. Cambie offers a menu of procedures that are but the tip of the iceberg of what our health system needs to offer better care to patients. Rather, it is an opportunity for independent and highly profitable entrepreneurship. It is not a solution to our strained health system that is suffering for lack of leadership and health reform.

Pain, uncertainty and vulnerability

In times of illness and injury patients suffer from more than their symptoms -- they suffer greatly from uncertainty and a loss of control. Their future livelihood is threatened; life with disability can be frightening. They suffer from short office visits with doctors who don't have time to educate them about the road ahead and diffuse their fears. In such a period of vulnerability, there is nothing more hopeful to a patient than a procedure that will definitively and concretely take away their pain and suffering. It is a noble hope; doctors and patients alike want a chance for a definitive fix. Sometimes surgery is a clear recommendation, but more often it is not. Few procedures are without risks, complications, long recovery periods, and marginal outcomes. Time is often needed to optimize fitness and health for patients to benefit from surgery. Conservative therapy often does just as well but takes longer, requiring bravery, patience, and diligence with a rehabilitation regimen best supported by rehabilitation experts that many patients cannot afford.

Cochrane reviews indicate that more than half of patients are no better or worse after low back surgery. Similarly, knee arthroscopies -- commonly performed at Cambie -- often have marginal or short-term benefits, and for patients with even the beginnings of arthritis, are no better than "sham surgery." A UBC study of WCB patients receiving expedited care at Cambie showed that they did no better, if not a little bit worse, than those receiving care in the public system. Anger from the real burden of ongoing pain and uncertainty can easily be translated towards the lack of rapid access to surgery in the public system, even when expedited surgery isn't the right solution. It is a delicate job to find the right patients to benefit from surgery. We mustn't overexpose patients to risky interventions in our eagerness to "do something," nor should we deny appropriate patients access to treatment because of fear of lack of benefit.

The muddy evidence for surgery for chronic pain is only further muddled by the profit motive. My job as a family physician is to support patients in navigating a path forward through times of vulnerability. If we are attentive, the burden of suffering, disability, and the complex path forward to recovery is evident to family physicians. Surgery may or may not be appropriate, but patients invest tremendous hope in surgical consults and procedures. Dr. Day is making tremendous profit by offering patients an escape from suffering in the form of expedited surgical solutions. It seems glaringly obvious that to require patients to make a decision about paying thousands of dollars for a surgery that they are told is appropriate but that the system is denying them -- is unethical. In a time of illness and suffering it can cause even greater harm to be faced with potential financial strain. Removing the additional weight of financial burden in a time of illness or injury is the basis of our public health system in Canada.

For-profit surgery is an ethical breach

Doctors in B.C. are keen to provide high-quality care for patients, and they are paid well to do so. This duty and the payment schedule that supports our work is embedded in our governing legislation and code of ethics. For doctors keen for other entrepreneurial opportunity, those doctors can opt out of medicare or practice in the complex health economy of the U.S. We should be called to examine our code of ethics when a doctor's quest to provide high-quality care bleeds into a quest to provide unrestricted for-profit care that greatly supplements their earnings while threatening to undermine the equity upon which our system is founded by siphoning doctors and nurses from the public system to work for the wealthy few.

Research ethics boards prevent physicians from doing direct research on our own patients because of conflicts of interest -- doctors are in a "fiduciary relationship" with patients in which "the physician is in a position of power and confidence over the patient… Patients are regarded as vulnerable in relation to physicians." We must be mindful of the forces that impact our services offered, be they financial gain, or experimental research. The College of Physicians and Surgeons explicitly cautions that a financial conflict of interest, "real, potential, or perceived" is a competing interest to providing ethical care. The apparent ethical breech of challenging our constitutional right to universal, accessible health care without clearly disclosing one's financial conflict of interest is particularly egregious when we peel away the complexity and understand the simple reality: although our public medicare system has some well-known gaps, Dr. Day is taking advantage of these by filling them in ways that make him tremendous profits.

Real solutions and #bettermedicare

Many people suffer financially from ongoing disability and long wait lists, and the public system needs to boost its operating room (OR) capacity rather than cutting back OR times to manage continually shrinking budgets. But the system must do this in the context of comprehensive solutions for patients in pain. Surgical solutions are but one solution, and they ought to be delivered in an appropriate manner devoid of financial conflict of interest. The OASIS program in Vancouver, Victoria's orthopedic collaboration called RebalanceMD, and Alberta's Bone and Joint Institute are all examples of publicly available, comprehensive and accessible orthopedic solutions that have reduced wait times. There are alternatives to a two-tiered system for orthopedic care. These are the solutions that we must call on our government to improve and scale up.

Perhaps now we can cautiously begin dreaming of how to reinvest the money saved by avoiding a 24-week legal battle and putting a stop to our ongoing subsidies of Day's unlawful billing practices.

Photo: 401kcalculator.org/flickr

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