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18Jul

Ian Mulgrew: Medicare expert, lawyer spar to end landmark trial

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The B.C. Government’s defence in the landmark three-year-old Medicare constitutional trial in B. C. Supreme Court is ending not with a bang but a testy, two-day courtroom sparring match involving one of its experts.

Dr. Gordon Guyatt gave as good as he got, repulsing a prolonged assault on his objectivity and left the stand Thursday having provided some last-minute fireworks but seemingly little insight on the key issue — wait-lists and the effects of constraints on access to private care in the provincial Medicare Protection Act.

“My perception is that there’s been a fluctuation of concerns with waiting lists and that governments have, to an extent, addressed things,” he said.

“Things can always get better … you have tensions — constant tensions — in every health care system in the world, and problems will never be solved.”

A specialist in internal medicine and, for almost 35 years, a health researcher at McMaster University, the argumentative Guyatt was assailed as more of an ideological warrior than a disinterested expert.

Robert Grant, lawyer for the two clinics and handful of patients behind the legal challenge over barriers to access to private care, portrayed Guyatt as a virulent opponent of the private clinics and Dr. Brian Day, the driving force behind the decade-old litigation.

Noting he had a duty to be impartial, Guyatt bristled at the broadsides aimed at impeaching his credibility.

“Given my, given that commitment, I do not see personally as relevant further pursuit of my opinions about issues beyond the issues that I’ve been asked to comment on in my deposition,” he complained.

“Thank you for that,” Justice John Steeves said. “In the meantime, just answer his questions.”

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Government lawyers vainly tried to halt the brutal cross-examination that battered Guyatt’s neutrality.

A self-described left winger who ran repeatedly as an NDP candidate, Guyatt has been a social activist for 40 years.

In 1979 he co-founded the Ontario-based Medical Reform Group, which disbanded in 2014 and was replaced by the Canadian Doctors for Medicare, which he joined.

He was also a director of the Ontario Health Coalition, an activist network, that along with its sister group the B.C. Health Coalition, is a member of the Canadian Health Coalition.

Doctors for Medicare and the B.C. coalition, under the banner of B.C. Friends of Medicare Society, have intervened in the challenge to support the government case.

Grant accused the groups of wrongly asserting Day seeks “U.S.-style health care for Canada, where people go bankrupt, lose their homes and life savings, or worse, because they can’t afford treatment when they need it.”

The B.C. coalition, he said, incorrectly claimed Day wanted a system where “international private insurance corporations run the show and patients foot the bill.”

Grant said the groups were fearmongering.

“It is an overstatement that this case could bring down single-tier Medicare,” Guyatt agreed, adding he also did not endorse the portrayal of Day and his supporters as “greedy, awful people.”

He maintained he was too busy to keep up with everything the groups did,  and distanced himself from the inflammatory rhetoric.

“The way I would put it is that we were advocates for equitable high-quality health care accessible to people without financial obstacles,” he said.

“So, specifically, as I have said previously, I believe that it is more appropriate to base care on the need — the medical need than on ability to pay — and I would like to work, continue to work, in a system where the patients I treat are treated on the basis of need rather than ability to pay.
”

“I understand,” Grant replied.

“But the point (of the trial) isn’t about what you want to do in your own practice; it’s whether or not increased private health care, and specifically private-pay surgeries, will be permitted or not. And you are opposed to increased private-pay surgeries. Isn’t that right?
”

“Yes,” Guyatt confirmed.

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Grant insisted Guyatt was a vocal opponent of Day within the Canadian Medical Association, seeing him as a “tragic choice” and “a complete disaster” as the organization’s president.

“I don’t recall active involvement in that matter,” Guyatt said, but again added such comments would be “hyperbolic.”

The Ontario specialist attacked the concept of using “benchmarks” to measure surgical waiting times — saying “not much” research has been conducted to establish what is acceptable and he suggested they were undependable tools set by “good old boys sitting around the table.”

But Guyatt has long minimized waiting lists and their ill effects — calling them “a problem that may be much smaller than we imagine” in 2004.

And he acknowledged he was not familiar with the circumstances in B.C.

“Certainly not in detail …. I do not know the details of the extent of waiting lists currently. I am sure that waiting lists remain a problem. … and that they’re not optimal … I do not know well enough to know whether it would be appropriate to characterize them as a serious problem or not.
”

The final witness John Frank, an expert on social determinants of health, took the stand later on July 18 and was to finish July 19 — day 179 of the proceedings.

“When this trial began I thought it would last up to 18 weeks (three times longer than the similar Chaoulli case in Que.),” said Day, founder of the private Cambie Surgery Centre.

“I am happy that — almost 3 years later — the witness phase is over. I am confident that the justice system will eventually grant all Canadians the same rights to protect their health that the Supreme Court of Canada granted to citizens of Que., and that the citizens of every other country in the world enjoy.”

Justice Steeves plans to hear final arguments this fall and begin deliberations in December.

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