Executive Summary: Key Legal and Evidentiary Issues

• Petitioner challenged the Medical Services Commission’s denial of funding for out-of-country proton beam therapy.

• Central issue was whether the Commission unlawfully delegated decision-making to the BC Cancer Agency.

• Petition was dismissed due to nearly seven-year delay in seeking judicial review.

• Petitioner failed to exhaust available administrative remedies before approaching the court.

• Incomplete application lacked necessary support from BC specialists and the BC Cancer Agency.

• Court emphasized importance of timely action and adherence to established review processes.

Facts and outcome of the case

Darrel Sekyer was diagnosed with prostate cancer in 2016. Believing proton beam therapy (PBT) in the United States was the best course of treatment, he applied in February 2017 for provincial funding through British Columbia’s Medical Services Plan (MSP). His application, submitted by his urologist, lacked a formal recommendation from the BC Cancer Agency, as required by the province’s Out-of-Country Medical Care Guidelines.

The MSP's Beneficiary Services Branch deemed the application incomplete and denied funding. Despite being advised multiple times that a referral and recommendation from an attending radiation oncologist and the BC Cancer Agency were necessary, Sekyer proceeded with treatment in the U.S. at a personal cost of $73,000 USD. Attempts to appeal informally continued until mid-2018, but no new documentation was provided. The Commission considered the file abandoned when no response came after a deadline extension to July 31, 2018.

Sekyer eventually filed a petition for judicial review on March 20, 2024, nearly seven years after the original denial. He argued that the Medical Services Commission had improperly delegated its decision-making to the BC Cancer Agency, effectively allowing that body to dictate treatment approvals.

Justice LeBlanc of the BC Supreme Court dismissed the petition. The court found the delay unjustified, especially considering that Sekyer had legal representation by 2018 and had indicated an intention to litigate. The court emphasized that timely resolution is essential for good public administration and that the petitioner offered no compelling reason for the extended delay.

Additionally, the court ruled that Sekyer failed to exhaust his administrative remedies. He did not complete the MSP's three-stage review process, which includes administrative and formal review stages designed to handle disputes before they reach the courts.

As a result, the petition was dismissed. The court ordered no costs against any party. The claim against the Provincial Health Services Authority (BC Cancer Agency) was dismissed by consent, also without costs.