A loophole in the Canada Health Act is fueling the growth of private medicine for patients from out of province

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The Canada Health Act makes it illegal to charge patients for medically necessary services that are covered by provincial health plans. So how is a Montreal clinic able to offer private breast cancer surgeries to patients from Ottawa?

The clinic — VM-Med Montreal Breast Center — says it has experienced an uptick in patients from Ottawa seeking private breast cancer surgery.

It is able to do so by using a loophole in the Canada Health Act that allows clinics to offer medically necessary services to patients from other provinces without penalty.

Read Elizabeth Payne’s feature story:

Breast cancer surgery wait times in Ottawa are so long that women are heading to a private clinic in Montreal

If an Ontario clinic charged a patient for private surgery covered by OHIP, for example, the province would be penalized and the province’s federal health transfer payments would be reduced by that amount. But it becomes more complicated when that same service is provided to out-of-province patients, said former Ontario deputy minister of health Dr. Robert Bell, which allows such clinics to operate.

Bell said he would like to see that loophole closed. “Private surgery centres are taking advantage of it.”

One business, Surgical Solutions Network — which offers orthopedic and other surgeries covered by provincial health plans at clinics in Ontario, British Columbia and Alberta — spells it out on its website.

“For Canadians who do not wish to or are unable to wait for publicly insured surgery in their home province, Surgical Solutions Network allows them to receive timely surgical care at one of our facilities outside their province, in accordance with the Canada Health Act.”

Bell notes that doing so is not “in accordance” with the Canada Health Act, but since the act is silent on the issue, it can be done without penalty. And a growing number of companies are offering surgery, in addition to online primary health care to out-of-province patients, especially with long surgical backlogs and a critical shortage of family physicians.

“This is a loophole in the Canada Health Act and it is set up to provide profit-making care for rich people,” he said.

The situation is more complex in Quebec where a landmark 2005 Supreme Court of Canada ruling permitted residents to have private medical insurance, paving the way for more private clinics.

But a decision by the Supreme Court of Canada last week declining to hear an appeal of a British Columbia case that challenged the ban on private surgeries is being seen as a victory by public healthcare advocates.

In a statement, federal Health Minister Jean-Yves Duclos said the Supreme Court of Canada’s decision “brings finality to this matter. The British Columbia Court of Appeal decision in this case stands, which reaffirmed the fundamental principles of our universal, public health care system.

“Universal, accessible, and publicly funded health care is a point of pride for Canadians,” Duclos said.

Given current backlogs and health worker shortages across the country, many would argue that pride is seriously dimmed.

Bell said he hopes Duclos will use that final word in the Cambie Surgeries Corporation case to take decisive action to close the loophole allowing private health centres to spring up across the country and offer a two-tier system for those who can afford it.

If not, he said, the growth of private surgical centres in Ontario as a result of new provincial legislation passed this spring will mean many of those centres will also get in on the lucrative practice of treating out-of-province patients.

“It is small now, but you can imagine this exploding, especially as the government in Ontario starts funding for-profit centres,” he said. “Why wouldn’t they just double their business?”