The Campbell government may have won a battle but lost the war in its dispute with the British Columbia Government and Service Employees' Union (BCGEU) over contracting out administration of the Medical Service Plan (MSP) to Maximus. The Appeal Court overruled the BC Supreme Court on the question of whether the five principles of the Canada Health Act are incorporated in provincial law (the Medicare Protection Act). According to the Appeal Court, the Campbell government argued that the Medicare Protection Act does not incorporate Section 7 of the Canada Health Act (the five principles) but simply serves as a reminder to the provincial legislature that violations of the principles in Section 7 of the Canada Health Act may put federal funding at risk (paragraph 38).

The Appeal Court decision said:

"The Medicare Protection Act begins with a strongly-worded preamble which reflects the intention of the legislature in enacting health care legislation for British Columbia, specifically, the principles upon which the Medical Services Plan is to operate. The preamble states that "the people and government of British Columbia wish to confirm and entrench universality, comprehensiveness, accessibility, portability and public administration as the guiding principles of the health care system of British Columbia and are committed to the preservation of these principles in perpetuity".

Section 7 of the Canada Health Act sets out the five principles in the context of a province qualifying for federal funding. The Medicare Protection Act has adopted those principles not simply as a means to receive federal funding but as the guiding principles for administering health care in the Province. The use of the words "confirm and entrench" in relation to the five principles leaves no room for ambiguity."

B.C.G.E.U. v. British Columbia (Minister of Health Services), 2007 BCCA 379, para 40-41

The importance of that ruling should not be overlooked. On the eve of reporting out on the Conversation on Health Care, the Campbell government argued before the court that the principles in the Canada Health Act were only important in terms of determining federal funding, but the court ruled that the principles are part of, and hence affect the interpretation of provincial legislation.

Unfortunately for the union's case, the Appeal Court went on to find that the principle of "public administration" was not violated by contracting out to Maximus. The Court ruled that the government skated close to the line by allowing Maximus to adjudicate disputed claims, but it found that the government nevertheless retained ultimate decision making authority.

The Campbell government could amend the Medicare Protection Act to make it consistent with the argument it advanced in Court, namely that universality, comprehensiveness, accessibility, portability and public administration are relevant to federal cost sharing but not to the delivery of services in BC. Until it does that, the government has to be concerned that other cases could come forward in which petitioners argue that the government has violated the Medicare Protection Act by not adhering to universality, comprehensiveness, accessibility, portability or public administration. Challenges posed by the Campbell government in initiating the Conversation on Health Care are rife with suggestions of such violations, for example, question 3 asked: "What does the principle of "universality" mean when some citizens have special access to services and surgical options that others do not, for lack of extended or private insurance?" Will we now see an application under the Judicial Review Procedure Act because the government admits that access to services is not equal?

Subject to a further appeal to the Supreme Court of Canada, the government got off the hook on whether contracting out to Maximus violates the principal of public administration. That doesn't mean that there aren't problems with contracting out. The Freedom of Information and Protection of Privacy Commissioner recently ruled on a case where the agency contracted to collect MSP premiums (EDS Advanced Solutions) had an employee who violated privacy 94 times, including an instance where someone said that he could find his former wife no matter where she lived. The weaknesses in the contract regarding the protection of privacy have supposedly been fixed, at least until the next time a horror story comes to light.

Since shortly before Christmas 2006 I have been attempting to discover how many people are covered by MSP. In April the Ministry of Finance responded to a freedom of information request for data on the number of people covered by level of premium subsidy. The response indicated that more people are covered than there are people in the province. A follow-up to confirm MSP eligibility errors and potential abuse has been met with delays. A response has been promised by August 3rd but they will likely stall once again. Of course, Maximus is responsible for determining enrolments and deletions from the eligibility list, but as the Appeal Court ruled (paragraph 84): "Therefore Maximus is not the highest or ultimate decision maker when disputes arise under the Medical Services Plan." In other words, the Campbell government cannot hide behind Maximus, whether the problem is administrative chaos with respect to enrolment or whether it is a violation of a fundamental principle of Medicare.