The Alberta government is taking away decision-making powers from medical officers on widespread public health measures during future emergencies and giving it to politicians, according to new legislation that overhauls part of the province’s Public Health Act.
Bill 6, the Public Health Amendment Act, was tabled in the legislature Thursday afternoon by Justice Minister Mickey Amery.
If passed, it would amend Section 29 of the Public Health Act so that during declared states of public health emergency cabinet would have discretionary authority to make the final decisions on public health orders regarding all persons or groups of persons, including groups of individuals, businesses, non-profits, and schools.
“Albertans elect public officials to make big decisions on their behalf. So it’s important that elected officials make the final decisions during a declared state of public health emergency,” Amery said.
Medical officers of health would retain final decision-making power for orders impacting specific persons or public places and would provide advice for cabinet consideration.
“Decisions should be based on scientific and medical evidence, which is why we will continue to rely on the chief medical officer of health to perform a vital role in these situations,” said Amery.
The bill would also introduce a new paramountcy clause allowing cabinet to reverse or vary any public health decision made by any decision-maker under the act, outside of a declared state of public health emergency.
Amery said cabinet ministers would have to consider “a wide variety of factors” in making decisions on public health measures.
“They are contemplating things like the well-being of Albertans, things like the economic well-being, mental health well-being, the social well-being of individuals, the ability to interact with one another.”
Ingram ruling reversal
The changes come in response to the landmark Ingram ruling issued in July.
Calgary Court of King’s Bench Justice Barbara Romaine ruled that some public health orders implemented during the COVID-19 pandemic were invalid after improperly being given final approval by politicians, not public health leaders as then required by the Public Health Act.
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The act in its current form also disallows the delegation of the chief medical officer of health’s authority to cabinet.
Bill 6 would reverse those dynamics, giving final approval in most instances to cabinet, something Amery said was necessary to provide clarity.
“During a public health emergency, the lines of authority, responsibility and accountability must be clear.”
Romaine’s ruling prompted Crown prosecutors to cease pursuing pandemic-related charges under the act, citing the unlikelihood of conviction.
Among the cases dismissed included those of Edmonton-area pastor James Coates and “no lockdowns rodeo” organizer Ty Northcott.
It also found that the restrictions themselves, including masking, distancing and capacity limits, “were amply justified as reasonable limits” under Section 1 of the Canadian Charter of Rights and Freedoms, and were therefore constitutional.
Opposition health critic David Shepherd said he is concerned over concentrating power in cabinet, noting “the rapid politicization we saw with the previous government in regards to the COVID 19 pandemic.”
“It is concerning to us that this could lead then simply to further politicization in the place of medical science and expertise at a time that could have severe effects on Albertans’ health and indeed their lives.”
He questioned how necessary the bill is given future health orders could have come from public health leaders and still been consistent with the ruling.
“There were many other directions they could have gone.”
Manning panel report due this month
Bill 6 comes the same month as a final report from the Preston Manning-led Public Health Emergencies Governance Review Panel is due.
The panel is tasked with reviewing the legislation that guided Alberta’s response to COVID-19 and recommend changes to improve the handling of future public health emergencies.
It is led by the veteran conservative politician who is being paid $253,000 for his role as its chairman to oversee the panel’s five other members and a $2-million budget.
Amery said he had met with Manning and had yet to read the final report, but that he expected the amendments in Bill 6 to be consistent with the panel’s findings.
“We’ve heard loud and clear that Albertans are looking towards their elected representatives to have a significant role in the decision-making process.”
The panel conducted an online public survey between January and mid-March asking, “what changes should be made, if any, to the laws of Alberta to better equip the province to cope with future public health emergencies?”
Postmedia acquired more than 3,100 of those responses through freedom of information requests.
An analysis of those replies found that the most common responses — amounting to 36.6 per cent of the total — called for a greater role for experts, including a more independent chief medical officer of health, in addressing future public health emergencies.
Replies expressing opposition to public health measures represented just under 30 per cent of all replies.
COVID-19 has been a contributing cause in the deaths of close to 6,000 Albertans since the start of the pandemic, according to the most recently available public data.