These documents are critical to understanding the issue of long and harmful waiting times in the public health care system
For more than two years, the B.C. government did not disclose documents that reputedly undercut its defence in the constitutional challenge to restrictions on private medical care and now insists their contents are hearsay.
Although the litigation has been underway for a decade and the trial started in Sept. 2016, Victoria only produced the requested material in November.
The province says the documents created by health authorities and hospitals should not be admitted as evidence because the authorities were not named in the lawsuit and the contents were suspect.
The plaintiffs claim the documents — primarily about child spinal operations and a scoliosis communication strategy discussed in 2009 and 2010 — are important because they indicate surgical waiting times were manipulated to make them appear shorter.
“They had an obligation to disclose them because they were obviously relevant to these proceedings,” lawyer Robert Grant argued for the two clinics and handful of patients attacking provisions of the Medicare Protection Act.
“We specifically demanded them back in 2016, and we didn’t receive them until Nov. 2018.”
Grant said they showed the lengthy and pernicious queues were not due to a lack of physicians, specialists or capacity but because of limitations on operating room time.
For instance, in late summer 2009, though 190 children were on a two-year waiting list, only two scoliosis surgeries occurred weekly at B.C. Children’s Hospital.
Government lawyer Jonathan Penner insisted B.C. Supreme Court Justice John Steeves had already ruled such material should be given no weight unless someone with first-hand knowledge could verify and explain it.
“They’re official and reliable (Provincial Health Services Authority) documents,” Grant responded.
“If you look at them you’ll see that they all came from the defendant. They’re the defendant’s documents disclosed to us. We’ve proceeded from the outset of this case based on an assumption the defendant province would admit documents that were not controversial, that were government documents, that were widely accepted. We’ve had to deal with a case in which the defendant has objected to virtually every document, even their own documents that they know are reliable. That’s what we’re having to deal with. That’s why this trial is taking too long.”
Susan Wannamaker, president of B.C. Children’s and a vice-president of the PHSA (which oversees the Surgical Patient Registry), testified the reports, emails and data from the Canadian Paediatric Surgical Wait Times project looked authentic.
But she couldn’t say more.
“These PHSA documents are critical to understanding the issue of long and harmful waiting times faced by patients in the public health care system, to provide necessary context around the treatment of pediatric patients and to properly address the defendant’s pleadings and stated position in this litigation that the problem is not systemic and it’s not a failure of the public system for some patients but instead it’s just doctors managing their wait-lists,” Grant explained.
“To the extent that the documents involve facts they should be admitted under the principled exception to the hearsay rule.”
But Wannamaker was not in charge when the reports were prepared and had no personal knowledge about them, Penner noted.
“They clearly are hearsay,” he emphasized.
“They don’t qualify for admission under the principled approach or under the business exception, and Ms. Wannamaker’s evidence was quite clear, she simply is attaching exhibits to … an affidavit that she hasn’t seen before because she’s been told that they are what they appear to be.”
Still, the justice wasn’t so sure his previous decision applied: “Sorry, I don’t know that one by heart.”
That was so long ago; there have been so many reports and decisions …
And occasionally, the photocopying gets pages mixed up or doubled, as it did more than once with these documents, leaving everyone scratching their head.
“This isn’t why we went to law school,” Steeves muttered.
No, it wasn’t.
“I’ll get my ruling out as soon as I can,” the justice promised. “And I have four large binders in my office for tomorrow.”
The trial continues.
Follow and share local stories on Flipboard. Check out our Vancouver News magazine: http://flip.it/s7019i
CLICK HERE to report a typo.
Is there more to this story? We’d like to hear from you about this or any other stories you think we should know about. Email [email protected].