B.C. Nurses Union wins preliminary court battle over extra billing

VANCOUVER _ The B.C. Nurses Union won a significant victory in a court ruling released Tuesday, dealing a blow to the Attorney General's efforts to quash a long-running battle over how medicare is enforced in the province.

Justice Stephen Kelleher, in a 27-page ruling, dismissed an application by the Attorney General and the B.C. Medicare Commission to deny the B.C. Nurses Union standing to pursue a complaint that the commission is not enforcing all the provisions of the Medicare Protection Act.

The union said in a statement following the ruling it contends that by turning a blind eye to so-called facility fees charged by private clinics, the government is neglecting its legal responsibility to protect patients from user fees and extra billing for medicare-insured services.

The ruling dismissed most of the government's objections to the union's case _ which focused essentially on its belief that the union had no standing to be making the argument in a full court hearing.

The court found that the union has raised a serious legal issue about the Medical Service Commission's failure to enforce some portions of the B.C. Medicare Protection Act.

``I conclude that the union has the capacity to bring this petition,'' said Kelleher.

No court date has yet been set for the petition to be heard.

In his ruling, the judge made clear the two sides' positions.

There are provisions in the medicare act that prohibit the commission from paying medical practitioners ``for procedures performed under the act if the practitioners impose a user charge or extra billing in relation to the procedure.''

``The union refers to this as double-dipping. The act does not permit payment by the commission under the plan when the patient is also required to pay.''

The judge said the union's complaint, and the basis of their petition, is the ``failure of the commission to enforce these prohibitions.''

The judge noted that the nurses union started the petition in April 2005 although it first raised its concerns with the B.C. government in 2003.

The commission and the Attorney General, the judge said, say that the union ``has no legal status or capacity to bring this petition.''

The judge, however, agreed with the Attorney General's argument that the union could not advance the case on behalf of patients in the public interest.

Instead, both individual patients and the union would have to proceed arguing their direct, personal interest in the case, the judge said.

BCNU president Debra McPherson expressed happiness at the ruling.

``He has substantially broadened the rights of unions to bring actions before the courts on matters of broad public interest and turned aside the government's attempt to restrict us to narrow labour relations matters,'' she said in a prepared statement.