This article by Stan Houston and Lorian Hardcastle appeared in the Calgary Herald on December 16, 2023.
Bill 6, the Public Health Amendment Act, 2023, makes fundamental changes to the management of public health emergencies by shifting authority for major decisions from public health officials to cabinet. At the same time, it explicitly limits the role of the provincial Chief Medical Officer of Health (CMOH) and gives cabinet the authority to overturn their decisions. As recent court decisions have shown, this process had been adopted during the pandemic, with cabinet improperly exercising the CMOH’s powers.
Though we cannot reliably predict what the next public health emergency might look like, major pandemics in history have been immensely disruptive both in terms of direct health impact and their social and economic effects. For example, Alberta experienced devastating epidemics of polio and “Spanish“ influenza, both of which required major public health restrictions at a time when much less was known about causative agents or effective treatment and prevention measures. Much more frequent than major pandemics are smaller, often localized events such as the recent Shigella and E. coli outbreaks. Of course, the next “big one” could be something completely new, as was the case with COVID.
Bill 6 represents a missed opportunity to more comprehensively evaluate how well our public health laws performed during COVID to ensure that we are better prepared for the next emergency.
During a public health emergency, difficult decisions have to be taken balancing limited and evolving knowledge, direct health effects of the disease (e.g. deaths and disability), and consequences for the health-care system, while also taking into account broader impacts on individuals, society, and the economy. As we have experienced, measures to prevent transmission of serious infections may impose limits on some normal activities for a period of time. The response to a public health emergency requires an ability to seek out and evaluate the best available information and opinions, make reasoned judgments by balancing multiple considerations, and effectively communicate with the public.
During a future public health emergency, Albertans will certainly hope that cabinet gives appropriate weight to the advice of the CMOH and potentially other sources of microbiologic, epidemiologic, and medical information. This is where the amendments contained in Bill 6 fall short.
If cabinet is going to make decisions, then Albertans have the right to know what advice the CMOH has given them. Firstly, transparency is essential for accountability, which has been an explicit goal of the UCP’s recent health system changes. How can the public know if our government has made wise decisions if we don’t know what advice they were given?
Secondly, individual citizens have the right to make informed personal judgments around health risks and the freedom to take the personal measures they think best. Using the COVID example, an individual might well choose to use a mask in public settings or avoid crowded restaurants if they knew that was the recommendation of the CMOH, even if those measures were not mandated by cabinet.
Ontario’s Long-Term Care COVID-19 Commission highlighted the importance of CMOH recommendations being transparent. The Ontario government adopted a threshold for precautions that was 2.5 times higher than that recommended by the CMOH, who believed that he could not disclose his recommendation to the public. In response, the Commission said that “[i]n a health emergency, the public has the right to know the advice given on such an important matter, directly from their chief medical officer.”
No legal measures can guarantee the best outcome in every imaginable situation; the wisdom and the judgment of those making the decision will always be critical. However, the law should ensure the right of Albertans to the information that would allow them to assess decisions taken by cabinet in a public health emergency, and enable citizens to make personal health decisions.
Bill 6 and the recently announced plan to dismantle AHS and revamp health care delivery are both examples of a problematic direction this government has adopted for the health system. Both reforms represent a rejection of expertise in favour of increased central control, which risks politicizing health policy. And neither are evidence-based solutions designed to address the challenges with our health system.
(Note: top banner image was AI-generated).