When I filed it with the Tribunal on April 9, 2015, I decided to attend the help clinic offered by the Tribunal the following Monday, and the young lawyer who reviewed my complaint documentation had nothing to add or change, and simply commented that it was an unusual type of complaint.
On July 17, 2015, I received in the mail a copy of the Notice of Complaint served on the Ministry of Health. It provides fairly generous time allowances for the process, but a response or an application to dismiss the complaint must be filed by August 17, with a provision for attending an early settlement meeting in October or November. So obviously nothing will come of this process this year, and perhaps we will see progress in 2016. On July 24, I received a copy of a letter to the Case Manager of the BCHRT from the BC Ministry of Justice advising that the Respondent to the Complaint would be represented by Denise Pritchard, Legal Counsel. On August 5, I received a copy of another letter to the Case Manager, this time requesting a month's delay in the proceedings. My response was sent off the following day. That didn't sit well with Ms. Pritchard, who dashed off a note to justify her request for the delay. The registrar at the Tribunal decided on the spot to grant her only half of what she had requested, and the deadline for the response was moved to August 30, 2015.
On August 31, 2015, the response from the Legal Counsel, which had a deadline of August 30, was delivered by courier. It is dated with date of its arrival, so it was a day late to meet the deadline that the Registrar had imposed. That, combined with its principal demand that my complaint be dismissed on a variety of technical and legal grounds, makes it somewhat ridiculous. The technical grounds are that the respondent is incorrectly identified - an issue that had been brought up by a Tribunal official and corrected verbally - and that MSP is not responsible for funding any of the related services - an interesting point, since MSP is the principal funding agency for the Ministry of Health. A further item with which she takes issue is that the complaint refers to this blog, which is "subject to editing" and should therefore be ruled off limits: the material of the complaint should be restricted to what is included in the Tribunal form 1.1 and nothing more. Considering that she completes the main items of the form as "see attached", and specifically responds "no" to the requirement that form 7.2 - Dismissal Application be used to demand dismissal of the complaint, and then demands dismissal in her attachment, it would appear that her submission is not to be subject to the same treatment she demands for mine. The bulk of her argument comprises a bunch of legalese bafflegab about the structure of the Ministry of Health without ever touching on the issue of discrimination. However, she does concede that the Ministry has determined that it is justified in not funding shingles vaccination. Her repeated use of the term "prima facie" pretty well sets the tone for the whole document, and is virtually meaningless in this instance. In any event, her arrogance is breathtaking. The same day, the Tribunal responded with a Respondent's Dismissal Application Deadline, which includes a deadline of October 5, 2015, for me to file a disclosure listing and documentation, which includes details of the remedy I am seeking. Then the Respondent will have until November 9, 2015 to file a response to my disclosure and remedy sought. At this point there is still no date set for an actual hearing, and my list of documents and the remedies have been submitted to the tribunal.
Application to Dismiss
On the afternoon of November 9 a parcel arrived by courier, and it was not until I opened it that I remembered that this was the deadline for the respondent to apply to the Tribunal to dismiss my complaint. It was so impressive that I had to weigh it (2.7 kg or 6 lb) and take a picture.
The contents, comprising 16 items as listed in the "list of documents" are "governed by the rules of confidentiality such that disclosure is given only for the purpose of this hearing": which I take to mean that I may not disclose them here or anywhere: they are for the eyes of tribunal participants only. This is something of a relief, since I certainly am not about to scan and digitize several hundred pages of reference material along with covering legal qualifications and other bullshit. What I can do, without, I hope, the risk of litigation and further intimidation, is summarize what this package contains - and possibly speculate on what it cost. The basic message is : "the complaint should be dismissed in its entirety". That's a lot of paper and documentation for a pretty simple message. It does not say - let's see if this has any merit, or let's see if there are points to discuss, or let's consider if we have all the answers. It states very clearly: let's blow this issue to kingdom come, regardless of the cost of doing so!
There are three witnesses on the list submitted: all high powered and drawn from the top echelons of the Ministry of Health hierarchy - one executive director, and two directors. The second largest item in the above picture is a sworn affidavit by the Executive Director of Public Health Services covering everything you ever wanted to know (and a whole lot you didn't) about immunization in British Columbia.
The largest item in the package is titled "Book of Authorities" and incorporates eleven cases that have been heard by the BCHRT, two that went to the Supreme Court of Canada, as well as the British Columbia Public Health Act (SBC 2008 Chapter 28). Needless to say, they all support the contention that my complaint should be dismissed out of hand. Without attempting to go through them all, I found a measure of encouragement in one of them that touched on a personal note with me. This was titled "Armstrong vs. British Columbia (Ministry of Health)", and concerned having to pay for PSA (prostate specific antigen) testing. The case, which was heard in December 2006 and January 2007, and decided in January 2008, resulted in the complaint being rejected and the case dismissed: a clear victory for the Ministry of Health. Curiously, by coincidence, in the fall of 2006 I was subjected to testing for prostate cancer, and ultimately treated for it by radical prostatectomy in the spring of 2008. During that period, and at least twice a year since I have had PSA tests, and I have never paid for one out of my own pocket. Again without going into detail, I understand that a good portion of the Armstrong case involved the distinction between "diagnostic" and "screening" PSA tests: the former being covered by MSP and the latter not. I believe that the difference is principally that in order to qualify as a diagnostic test it must be ordered by a physician, whereas screening could be initiated by the patient without a physician's input. I have to admit that before succumbing to prostate cancer I hardly knew I had a prostate, let alone what a PSA test was, and I suspect that most younger men are in much the same state of ignorance in spite of the level of publicity the issue receives today. So the Ministry was successful in defending its position with respect to Armstrong, but what did it actually win? The right to deny an individual a potentially life saving diagnostic procedure? And at what cost? Looks like a pyrrhic victory to me, and it certainly is encouraging in terms of potential outcome, whether my complaint goes any further or not.
This brings me to the issue of appearances, and potentially influencing how our health care dollars are spent. The attitude of the Ministry of Health is obviously that of an entrenched bureaucracy that wishes to be left to its devices without outside interference. Hence the weight of documentation, which at first glance (or prima facie, as I'm sure their counsel, Ms. Pritchard, would prefer to put it) looks like going after a fly with a blunderbuss - which in essence it is. So that rather than look at the complaint on its merits, let's get rid of it so we can continue as before. So first, we get rid of the items that are not specifically within the jurisdiction of the tribunal, and then we go after the ones that are with all the resources that we can bring into play on our side.
In her response to my statement of remedy, Ms. Pritchard begins and ends with the demand that the complaint should be dismissed, and for the rest states that everything in between is not available as a remedy to the complainant. I am sure that any number of legal arguments can be made as to the proper procedure and presentation of my remedies to show that they do not deserve consideration, but the issue of whether or not they represent a positive outcome for the patient and the public at large does not enter the picture. On that basis, I believe it is appropriate to examine the first four, all dealing with efficient communication and legitimacy of billing in light of the most recent commentary on the topic - found in this weekend's (November 14) National Post. The fifth item in my remedies comprises two parts, both of which allege age discrimination. The second, dealing with medicals for drivers over age 80, is deemed by Ms. Pritchard as inapplicable, essentially because I am not yet old enough to have been personally impacted. The first, for which the bulk of this documentation package is aimed, deals with the shingles vaccination, which I predict will fall under MSP coverage within the next five years, and would have done so a good deal earlier if the Ministry spent less on litigation and more on common sense solutions to healthcare issues.
Next Round
On December 7th the mail brought a further extension of proceedings. I now have until the end of the year to respond to the Ministry's application to dismiss my complaint. After that they have until January 14 to provide a written response to my latest submission. Moving at the appropriate pace, I shall send in my next submission on new year's eve, using suitable excerpts from the above review of the Ministry's application to dismiss.
December 31, 2015. My response to the application to dismiss was emailed this morning, and a fairly prompt reply from the tribunal stated that they were unable to access the links, so I had to get the essential ones downloaded and converted to pdf files for attachment to my email.
January 15, 2016. Yesterday the Ministry's response to my year end commentary arrived via email, and it was a bit of a letdown. All Ms. Pritchard could come up with at this time is a legal objection to my bringing up the issue of the 80 plus year old drivers' medical. So now the Tribunal has to decide what next, if anything. My prediction is that it will take at least a couple of months to come up with a firm ruling that the whole effort has been a waste of time, but it's been an interesting diversion.
