Josh Dehaas: Two months to live, but a three-month wait to see a doctor

Allison Ducluzeau left Canada to get life-saving care. B.C. won't reimburse her, because they recommended another treatment - palliative care.

By: Josh Dehaas

Allison Ducluzeau, 58, of Victoria, B.C., started experiencing abdominal pain in October 2022. Within weeks, she went to an emergency room. Tests revealed abdominal cancer. Ducluzeau met with a local surgeon who told her that she was too ill for surgery and that chemotherapy would, at best, slow her cancer down. She was given two months to two years to live. The wait to see an oncologist, she was told, could be two months or more. The surgeon told Ducluzeau to go home and get her affairs in order. She gathered her children, then 21 and 26, to tell them she was going to die.

“It was the hardest thing I’ve ever had to do,” Ducluzeau told me. “Seeing how it affected them, it just made me find a way to dig a little deeper. I promised them that night that I’m not close to giving up here and I’m going to try other solutions.”

Family and friends contacted four U.S. clinics, which all said she was a candidate for CRS and HIPEC, a procedure in which surgeons remove abdominal tumours and flood the abdomen with chemotherapy drugs. Ducluzeau met with a surgeon in Baltimore in January 2023. He operated two weeks later.

Ducluzeau finally got to see a B.C. oncologist in March 2023 — more than three months after being told she had as little as two months to live.

Eighteen months post-surgery, Ducluzeau is in remission and feeling great —apart from the headache caused by more than $200,000 in medical bills racked up by the surgery, scans and weeks in a U.S. hospital.

British Columbia won’t reimburse the cost, as they sometimes do, because the B.C. Cancer Agency says their surgeon would have recommended a different treatment option, and the province's policy is that they'll only reimburse patients for out-of-country treatment where recommended by the B.C. Cancer Agency.

The different treatment option they would have recommended?

Palliative chemotherapy.

Ducluzeau should not have had to leave Canada to access apparently life-saving private health care when the public system failed to provide it. It remains an open question whether people like Ducluzeau’s constitutional rights are violated by laws that lead to deadly waitlists while blocking them from obtaining private health care close to home. That treatment was unavailable here due to the Medicare Protection Act, a B.C. law that aims to prevent the development of private health care options.

The MPA blocks surgeons from charging more than the provincial plan will pay, which makes private clinics financially unviable, and also effectively prevents the sale of private insurance. My organization, the Canadian Constitution Foundation, along with Dr. Brian Day’s Cambie Clinic and several suffering patients, challenged B.C.’s restrictions. We spent more than a decade in B.C.'s courts seeking clarity on the question of whether such laws (all provinces have them) violate the constitutional rights to life and bodily integrity where they lead to death or serious suffering.

In 2022, we lost at the B.C. Court of Appeal.

Now British Columbia is demanding we pay $1.7 million to cover the huge lawyer bills they racked up fighting us. To put that $1.7 million in perspective, consider that the donor-funded CCF had less than $2.1 million in revenue in the last fiscal year. This kind of crushing cost claim seems aimed at punishing us for engaging in public interest litigation. We’ll be in court fighting it this week. Regardless of what happens, we don’t plan to give up the fight for private options, which we believe are constitutionally required. In our view, having private options alongside the public system would lead to shorter waitlists in the public system, since it would have fewer patients to cover with the same tax dollars. We also think it would be more humane for people like Ducluzeau to have access to care close to home.

So where's the next front?

In the Cambie case, the judges agreed some patients are being deprived of their bodily integrity — and in some cases their lives — but the government was nevertheless allowed to prefer its monopoly over the type of system other countries have chosen, which are primarily public with private options that lead to far better outcomes. This puts the decision at odds with the 2005 decision Chaoulli v Quebec, in which the Supreme Court found that the Quebec government couldn’t block patients from paying for surgeries when suffering on excessively-long waitlists without violating their rights. One might assume all Canadians have the same rights, but that remains unclear because of a quirk of that case. In Chaoulli, three of seven judges agreed that laws blocking patients suffering on waitlists violated the Charter right to security of the person (bodily integrity); three said it did not, and a seventh judge said the laws violated a right similar to security of the person (inviolability) under Quebec’s Charter. In other words, there was majority agreement that Quebec’s ban couldn’t stand but it was a 3-3 tie on the question of whether the Canadian Charter was violated.

Curiously, the three dissenting judges sided with the province in part because they said Quebec had a “safety valve”: a little-known program that would pay for care outside of Quebec when the public system couldn’t deliver.

These dissenting judges said individuals denied access to that safety valve could always sue. We’d like to try out a case like this. One of the pending legal questions of such a valve is whether provinces are violating the Charter when they deny funding to those who wish to alleviate their suffering abroad, while also blocking them from paying for care at home. Ducluzeau is in the process of trying to access B.C.'s "safety valve" program but has not yet had any success. The province won't pay without a recommendation from the B.C. Cancer Agency, which has said it won't offer because there's insufficient evidence that the surgery received would have improved Ducluzeau's quality of life or life expectancy.

It's hard to see how they can say that with a straight face to a woman who appears to be on this planet more than a year-and-a-half after her diagnosis only because she had the wherewithal to leave the B.C. system.

Another question after Chaoulli and Cambie is whether other provincial laws aimed at making private clinics financially non-viable violates rights. If B.C. succeeds in forcing the CCF to pay $1.7 million in costs, that will make it harder for us to continue mounting public interest challenges on questions like these. But, like Ducluzeau, we don’t plan to give up.

Josh Dehaas is Counsel with the Canadian Constitution Foundation. If you’re a patient who is suffering on a waitlist and are considering treatment abroad, or have recently received treatment abroad, please contact  jdehaas@theccf.ca. Learn more at Yourhealthcantwait.ca.

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