As with most court rulings, the recent Chaoulli case raises more questions than it answers. The Supreme Court struck down a Quebec statutory prohibition on private medical insurance on the grounds that it violates a section of the Quebec Charter. The decision will open the door to private insurers and finally give patients the power to choose between health care providers.

But, because the decision was based upon a challenge to provincial legislation in Quebec, the implications for the rest of Canada appear murky. The Court considered whether the Quebec prohibition violated The Canadian Charter but the Supremes were unable to reach a consensus and left us with a legal quagmire. Three of the justices, including Chief Justice McLachlin, found that the prohibition did in fact violate the section 7 right to "life, liberty and security of the person," and that it was unconstitutional. Three other justices dissented and the tiebreaker ruled the law violated the Quebec Charter but was silent on the Canadian Charter.

Technically, the court did not unanimously declare that a statutory prohibition on private medical insurance unconstitutional in the rest of Canada but it might as well have. A split constitutional decision by the highest court in the land creates such a degree of uncertainty as to negate the possible enforcement of such prohibitions in the rest of Canada, including British Columbia. In effect, the uncertainty of the decision may prove to render such prohibitions null and void and of no force or effect.

For example, in British Columbia we have legislation similar to that which was challenged in Quebec. Section 45 (1) of The Medicare Protection Act states that, "A person must not provide, offer or enter into a contract of insurance with a resident for the payment, reimbursement or indemnification of all or part of the cost of services that would be benefits if performed by a practitioner." So, with the provision's constitutional validity up in the air, the next move is the premier's.

Premier Campbell should repeal the prohibition in the Medicare Protection Act. Not only because it is likely to be ruled unconstitutional in the future, but because it is morally reprehensible to sentence people to suffer on waiting lists and to deny them the choice of purchasing private medical insurance and ultimately getting treatment faster.

Nonetheless, if the premier decides to follow the many political sheep before him and fail to lead health care reform patients should take solace in the fact that, reform will come with or without his leadership. As is usually the case, true reform will come from the ground up. There will be an instance, in the not so distant future, where a private insurer will decide to bear the risk of contravening The Medicare Protection Act and offer medical insurance. Why Because there is both an overwhelming demand from health care consumers for timely access and an unlikely scenario of the BC government wanting to trigger a constitutional challenge.

Patients want choice and it will come regardless of the political will of our 'leaders.' But there is choice for premier Campbell: repeal the provision and be the shepherd of health care reform, or join the rest of the sheep and do nothing.