Photo: The Canadian Press

Dr. Brian Day, Medical Director of the Cambie Surgery Centre in Vancouver.

A lawyer arguing in favour of a two-tier health-care system in British Columbia says the government can't legally justify preventing patients from paying private doctors to alleviate their suffering sooner than the public system could provide treatment.

Peter Gall began his closing arguments Monday in a decade-long constitutional challenge of the Medicare Protection Act of B.C. as lead plaintiff Dr. Brian Day, CEO of Cambie Surgical Corp., looked on from the gallery.

The case has drawn a fierce defence from those who warn a parallel public-private system would only benefit the wealthy and expanding private insurance would disproportionately impact patients who aren't considered "profitable."

"If you cannot provide timely service to everyone, you cannot prohibit anyone from going outside the system for private care," Gall told B.C. Supreme Court Justice John Steeves.

It's entirely within the provincial government's constitutional purview to make policy decisions about how the public health-care system is delivered, Gall said, adding that has led to shortcomings where the government's own data show it is failing to provide diagnostic and surgical services in a timely manner.

That means patients should have the right to make their own choices, he said.

"Waiting for these services causes, at a minimum, ongoing pain, ongoing physical and mental suffering, ongoing disability and as well the possibility of additional and permanent harm, even death."

Gall dismissed fears that allowing private health services would result in a radical transformation of the public system as purely "hypothetical," adding that the government could introduce strict regulations.

Government lawyers aren't scheduled to begin closing arguments until next week but they say in court documents that Day's claims of four plaintiff patients having been deprived of life, liberty and security of the person under Section 7 of the charter are problematic because those protections apply to issues of justice, not health care.

Rather than a constitutional challenge, the government alleges Day's case amounts to "political theatre" and an attempt to force change on the health-care system for the financial benefit of doctors who earn more money from wealthy patients going to private clinics.

The province also says Day's lawyers have failed to establish that patients suffer harm by waiting for services.