Bill 104: Clarification on the limits of the powers of a Medical Officer of Health & the Minister of Health

 

Clarification on the extent of  powers of Regional Medical Officers of Health, the Chief Medical Officer of Health and the Minister of Health.

Prior to the examination of  Bill 104 in Committee, I have a final observation that warrants either simply a clarification in the Assembly or an amendment to provide further clarity respecting the limits of the powers of the Regional Medical Officers of Health, the Chief Medical Officer of Health and the Minister of Health. The question is simple, what are the limits of the powers conferred to the Medical Officers of Health and the Minister of Health?  If the intention is for the powers of each officer holder to be constrained to the list of powers, a simple amendment to state that the powers are limited "with respect to the following matters". This would provide a clearer indication of roles and responsibilities to manage notifiable diseases. Alternatively, the Minister could indicate the legislative intent behind Bill 104 to resolve interpretative ambiguity.

Bill 104 resolves many current deficiencies in the current Public Health Act. It is entirely appropriate to provide the Minister of Health specific authority to take certain measures to address public health in relation to Group I notifiable diseases. This restores a role that was gradually eliminated since the original modern 1918 Public Health Act. 

The advantage of the Minister of Health taking an action is that it creates a political linkage of accountability and responsibility back to the Legislative Assembly. Because the Minister rather than Cabinet is exercising the power, it does not contain the same limitations related to Cabinet confidentiality. This means that the Minister is able to provide an additional public rationale for decisions compared to decisions made at the Cabinet level.

However, there is still an issue related to the limits of each actor empowered to act for the purposes of public health.  There is a minor degree of interpretive ambiguity in the powers conferred to each position. This is because sections 33(4), 33.1(4) & & 33.2(4) state generally that an office holder has the power to to issue the following order: “An order may provide for any action that the medical officer of health [or other office holder] considers necessary”. 

This confuses a general standing power for each position to take any action to protect public health in the context of a notifiable disease but then applies specific examples of a non restrictive list. The extent of the powers are undefined where the list is merely illustrative.  By contrast, the specific powers afforded to the Federal cabinet under the Emergencies Act are limited. If an action cannot be placed under specific enumerated power, it does not exist.  The current wording of the powers provides a degree of flexibility, there is also the risk that a future government may misinterpret their powers beyond the scope of the act in a manner similar to treating the Emergency Measures Act as an enabling act and also confusing who should take responsibility for a specific public health measure.

An interpretative limitation is that an order under any Medical Officer of Health under section 33(4) cannot include class closure orders. This power is only conferred to the Minister of Health or in a more limited sense, the Chief Medical Officer of Health and is appropriate.  However there is still the possibility of administrative confusion surrounding the powers of a Medical Officer of Health (both regional and chief) using their powers under section 33(4) and the Minister’s powers under section 33.2(4) related to Group I notifiable diseases. This becomes further complicated when examining Cabinet’s remedial powers under s.68(nn) respecting the control of notifiable diseases . The concern is that there may be powers more appropriate for the Minister to use rather than a Medical Officer of Health. Alternatively, there may be circumstances where it is more suitable for Cabinet to utilize its powers.

 The reason why province wide application of certain powers requires political intervention is a function of Responsible Government. Province wide measures should draw the attention of the Minister and also the associated scrutiny and oversight of the Legislative Assembly. The nature of the drafting of s.33.2(4) raises the following question: does the government intend to grant the Minister of Health the power to impose a province wide quarantine or isolation travel registration scheme for persons entering the province? Similarly is the Assembly being asked to grant the power to the Minister of Health to have the power to impose vaccination passports or is the intention for this to be left with Cabinet? My assumption is no. However, the potential for overlapping powers can create a situation where responsibility and accountability becomes diffused and blurred.

There is less ambiguity for orders respecting premises, events or activities issued by the Chief Medical Officer of Health under 33.1(4). They are only directed to the owner or occupier of a premise, or a person responsible for an event. I view these as conferring general closure, or social distancing powers related to notifiable diseases. This addresses a deficiency in the current Health Hazard closure orders where they cannot be directed at human based diseases. Because, the Minister has the power to issue wider class orders, a qualified class order issued by the Chief Medical Officer of Health is limited it its interpretative powers.

A path forward?

A method to resolve this ambiguity is to amend the relevant sections to clarify that the examples are exhaustive rather than illustrative by stating that a Medical Officer of Health can take an action “with respect to the following matters” This amendment would clarify that a regional Medical Officer of Health does not have the authority to close public places, limit public gatherings or impose intraprovincial travel restrictions in the context of notifiable diseases for example.

A similar limitation on the Ministerial powers under section 33.2(4) would clarify that Cabinet still has remedial powers to make regulations for the control of notifiable diseases. This would ensure an understanding that the Minister of Heath would not have the authority to impose vaccination passports or a province wide travel registration scheme for the purposes of quarantine. These matters would be dealt with by Cabinet in a manner similar to the now repealed  Public Health Regulations.

For clarity, I view the Minister of Health or a Medical Officer of Health as having the power to impose mask wearing rules. This mask wearing power was already conferred via the power of a medical officer of health to order an individual to "conduct themselves in such a manner as not to expose another person to infection." via section 33(4)(d).  Cabinet however would still have an overriding power to regulate any matter respecting the control of a notifiable disease.

The source of this authority has generated significant recent commentary, especially in the context of masking wearing in schools. The power is not found under section 6 of the Public Health Act as those powers of a Medical Officer of Health only relate to Health Hazards which pursuant to the definition of  a Health Hazard under the act of the act are expressly not applied to human based diseases where a Health Hazard is a “ (b) a substance, thing or plant or animal other than a human”. 

Further I view that section 61.2 of the Public Health Act provides Medical Officers of Health a limited gap power to take certain district actions in relation to the absence of a clear legal authority elsewhere in the act. Since Medical Officers of Health already have specific powers related to the control of notifiable diseases under section 33(4), section 61.2 does not confer an additional or supplementary power with respect to notifiable diseases.

Vague laws are a friend to no one. Clarity on the limits of the powers afforded to Medical Officers of Health and the Minister of Health ensure greater compliance because of the clearer lines of accountability and responsibility. It is important to have these considerations known prior to the next wave of COVID-19. 

Suggested amendments

33(4) An order may provide for any action that the medical officer of health considers necessary with respect to the following matters to prevent, decrease or eliminate the risk to health presented by a notifiable disease  including requiring any person that the order states has or may have a notifiable disease or is or may be infected with an agent of a notifiable disease to do any or all of the following without delay:

(a)  isolate themselves and remain in isolation from other persons;

(b)  submit to an examination by a medical practitioner or a nurse practitioner and deliver to the medical officer of health a report by the medical practitioner or the nurse practitioner as to whether or not the person has a notifiable disease or is infected with an agent of a notifiable disease;

(c)  place themselves under the care and treatment of a medical practitioner or a nurse practitioner; or

(d)  conduct themselves in such a manner as not to expose another person to infection.

33.2 (4) An order may provide for any action that the Minister considers necessary with respect to the following matters to prevent, decrease or eliminate the risk to health presented by the Group I notifiable disease, including

(a)  directing the closure of a public place,

(b)  restricting or prohibiting public gatherings in a health region,

(c)  restricting travel to or from a health region, and

(d)  in the event that an order is directed to a class of individuals who have or may have a Group I notifiable disease or are or may be infected with an agent of a Group I notifiable disease, requiring each member of the class to do any or all of the following without delay:

( i) isolate themselves and remain in isolation from other persons;

( ii) submit to an examination by a medical practitioner or a nurse practitioner and deliver to the medical officer of health a report by the medical practitioner or the nurse practitioner as to whether or not the individual has a Group I notifiable disease or is infected with an agent of a Group I notifiable disease;

( iii) place themselves under the care and treatment of a medical practitioner or a nurse practitioner; or

( iv) conduct themselves in such a manner as not to expose another person to infection.

Bill 104 - Public Health Act amendments : A brief discussion on suggested changes.

Bill 104 - Public Health Act amendmendments: A brief discussion on suggested changes.

On May 10  the New Brunswick Government tabled Bill 104 which proposes to amend the public health act to provide clearer roles and responsibilities in the use of powers related to notifiable diseases like Covid-19. This legislation ensures  that in the event of another wave of Covid-19 in the fall, the New Brunswick Government will have sufficient legislative tools to manage the pandemic without using the emergency measures act. New Brunswick was the last province to use its emergency legislation as the primary tool to respond to pandemics.

I discussed a series of needed changes in a prior blog post.I am pleased that the Government is reforming the act.

https://lyleskinner.blogspot.com/2022/04/suggested-changes-to-new-brunswick.html

 For a general explanation of certain aspects of Bill 104, I refer you to a recent interview I gave with CBC Information Morning Fredericton.

https://www.cbc.ca/listen/live-radio/1-25-information-morning-fredericton/clip/15912105-changes-public-health-act

The following are a series of amendments and questions that should be asked in committee to provide clarity via legislative intent or through legislative amendments. The purpose for this is if these specific powers of the  Public Health Act are used in the future, there is no confusion. Bill 104 is a substantive legislative improvement to the province’s pandemic response.

1. Amend subsection 33.2(4)(c) to confer the power to  only restrict non-essential travel between a health region. This would avoid a future order running into the same difficulties as the fall travel restrictions between health reasons. As I commented to CBC in Oct 2021, a draft order accidentally banned non essential travel in areas that did not require proof of vaccination where it would have been illegal to go to a grocery store but legal to go to a Casino as the latter required proof of vaccination. Modifying this subsection ensures that no order would restrict an individual's ability to attend medical appointments or other essential activities. Although there is a sufficiently large interpretation on what constitutes essential travel, it is preferable to provide a subjective consideration on a case by case basis. A strong policy reason for this is to ensure that an individual who is leaving their house in relation to domestic violence can also freely travel between a health region as this would obviously be an essential reason to travel.

Further there may be significant Charter considerations that would not be saved by S.1 related to S.7 “Life, Liberty and Security of the Person” if there is a prohibition on essential travel.

Amendment

33.2( 4) An order may provide for any action that the Minister considers necessary to prevent, decrease or eliminate the risk to health presented by the Group I notifiable disease, including

(a)  directing the closure of a public place,

(b)  restricting or prohibiting public gatherings in a health region,

(c)  restricting non-essential travel to or from a health region, and

2. Closure / Restriction Orders are too narrowly defined and do not include religious activities.

The bill grants the Chief Medical Officer of Health the authority to close or restrict the operations of certain premises, events and activities. This addresses a deficiency in the current act where there was no legal authority to close / restrict a premise preventively if there was not a notifiable disease.

The issue is whether the drafters intended to exempt religious activities or events from the powers of the Chief Medical Officer of Health.

Seek clarification and if needed a suggested  amendment

Order respecting notifiable disease – premises, event or activity

33.1( 1) Subject to subsection (2), the chief medical officer of health may, by written order, require an owner or occupier of a premises or a person responsible for a recreational, sporting, religious or cultural activity or event to take or to refrain from taking any action that is specified in the order in respect of a notifiable disease.

Alternatively, simply deleting "recreational, sporting, or cultural" will enlarge the scope of application.

3. Clarification on what constitutes an “other location” for the purposes of detention by a court or a medical officer of health for failure to follow an order of a medical officer of health. Possible amendment to ensure individuals detained at other locations are treated with “generally established medical practices”

It is my assumption that this is intended to provide alternative locations such as a facility similar to a quarantine hotel or another location to avoid using traditional hospital facilities to conserve primary medical resources. The intent of these orders are to  “detain, examine or treat a person”. In essence there is an associated medical nexus where a person may be contagious with a Group I notifiable disease and detention is essential so that they can seek treatment and also prevent the infection of other people. The intent is not punitive. It is also not a mechanism to require an individual to quarantine at home if the province imposes a quarantine. That would occur via a Ministerial or Medical Officer of Health order.

New section 35.1 creates an agreement framework respecting the use of a location and also service standards but this is a separate consideration than ensuring reporting and treatment of specific individuals.

This gap is most notable in the proposed new court detention order under s.36(9)  or emergency ex parte detention order under s.41(7)(b) and (ii) for example:

( ii) in the event that the person is detained in a hospital facility to care for the person and, when ordered, to examine and treat the person for the Group I notifiable disease in accordance with generally accepted medical practices

Effectively it is unclear why persons detained in other locations would not be examined and treated with generally accepted medical practices.

An example of suggested change, if warranted, so that everyone is treated in accordance with generally accepted medical practice.

Suggested Amendment: modify  s.36(9)(b) to provide care with generally accepted medical practices regardless of location:

36( 9) (b)  in the event that the person is detained in a hospital facility to care for the person and, when ordered, to examine and treat the person for the Group I notifiable disease in accordance with generally accepted medical practices.

Similar amendments would also need to occur in section 41( 7)(b) and 9(b)(ii):

41( 7)(b)  in the event that the person is detained in a hospital facility to care for the person and, when ordered, to examine and treat the person for the Group I notifiable disease in accordance with generally accepted medical practices.

(d)  by repealing paragraph (9)(b) and substituting the following:

( ii) in the event that the person is detained in a hospital facility to care for the person and, when ordered, to examine and treat the person for the Group I notifiable disease in accordance with generally accepted medical practices.

 

4. Clarify medical supervision and reporting responsibilities for individuals supervising persons detained in “other locations”.

Section 37 requires an individual to be designated  to be responsible for a detained person in hospital facilities. There is no one presently designated to have responsibility for individuals detained in “other locations”.

Suggested  amendment

37(a) In the event a person who is delivered to a hospital facility operated  by the regional health authority, the chief executive officer of a regional health authority, or a person designated by the chief executive officer, shall designate a medical practitioner or a nurse practitioner to have responsibility for the person named in an order made under section 36 and who is delivered to a hospital facility operated by the regional health authority.

(b) In the event of a person who is delivered to another location, the Minister shall designate an individual to have responsibility for the person named in an order under section 36

Similarly there is no reporting obligation for other locations to report to a Medical Officer of Health of the treatment and the condition of the detained person.

Suggested amendment

38 The medical practitioner, the nurse practitioner, or the person designated by the Minister,  responsible for a person named in an order made under section 36 shall report in respect of the treatment and the condition of the person to the medical officer of health in the health region in which the hospital facility or other location is located and in the manner, at the times and with the information specified by the medical officer of health.

These changes to 37 and 38 would ensure that there is still a supervisory medical and reporting linkage for individual persons to an officer of health to ensure that they are receiving care. If there is a valid reason why there should not be these reporting and supervisory linkages, then government should provide clarity on this,

5.  Deficiency in issuing Class Orders for diseases that are not classified as a Group I notifiable disease. Grant power to the Chief Medical Officer of Health.

Presently Public Health views that  Medical Officers of Health do not have the legal authority to issue class orders to groups of individuals. This creates an administrative  inefficiency in the event of a larger but localized outbreak where all impacted individuals may not be known. Bill 104 proposes to grant the Minister of Health the power to issue class orders in relation to Group I notifiable diseases. This is appropriate given the additional powers granted to the Minister. However the Chief Medical Officer of Health should also be given the authority to issue class orders in relation to all notifiable diseases including Group I to address local or regional outbreaks that do not require Ministerial intervention. At minimum, there should be a clarification as to why there isn’t a power to issue a class order respecting a notifiable disease that isn’t classified as Group I. The Minister of Health should have additional powers to to restrict intraprovincal travel, public gatherings and places. Conferring an additional power to  the Chief Medical Officer of Health to issue class orders for any notifiable disease would mirror similar legislative authorities found in other provinces such as PEI where there is the authority to issue a class order for any notifiable disease.

Suggested Question or Amendment

Clarification as to why neither the Minister nor the Chief Medical Officer of Health have the power to issue a class order for a notifiable disease that isn’t classified as Group I.

Depending on the view of the Assembly, it would be to either amend s.33.2 to provide the power to either the Minister of Health or the Chief Medical Officer of Health to issue class orders for any notifiable disease while reserving certain powers regarding closures of gatherings, public places and travel solely to the Minister of Health.

Alternatively, it would be to insert a new section 33.21 which would mirror 33.2 but confer a class order power related to notifiable diseases to the Chief Medical Officer of Health except for the 33.2(4)(a)(b)(c) Group I notifiable disease powers.

6. Clarify that Class Orders and Orders related to Premises, Event or Activity are renewable.

Both Class Orders 33.2( 3)  and Orders related to Premises, Event or Activities (33.1( 3)) are limited to a 14 day duration. However there is ambiguity on whether they can be renewed if there is a public health requirement to do so.

Amendment: I would recommend interesting a new subsections 33.2(3.1) & 33.1(3.1) to indicate that an order can be extended for an additional 14 day increments provided that the Minister or Chief Medical Officer of Health are satisfied that the criteria under 33.2(2) or 33.3(2) still exists to warrant an extension.

 

7. Create an oversight function for the Legislative Assembly if either a Ministerial Class Order under s.33.2 or a Cabinet regulation issued pursuant to s.42(nn) is invoked.

A possible role would be for the Minister of Health to table in the Legislative Assembly within 14 days of a Ministerial or Cabinet Order a report pertaining to the effectiveness and necessity of the Order to prevent, decrease or eliminate the risk to health presented by the Group I notifiable disease. The report would be automatically deemed referred to the Standing Committee on Social Policy for review.

I am of mixed opinion whether there should be a role of the Assembly in terminating the extended use of a Ministerial class order or Cabinet order related to a notifiable disease. Although this may be an ideal role respecting oversight and some provinces have this provision, I am uncertain of its overall effectiveness. A preferable option would be for the Standing Committee on Social Policy to review a report issued by the Minister. This would facilitate an appropriate degree of legislative oversight if Ministerial intervention is required without monopolizing House time. The Committee would be able to meet on a more frequent basis including during the extended adjournment of the Assembly. A power either conferred in statute or by resolution of the Assembly to allow for the Committee to have intersessional authority in the event of prorogation would be advisable.

The purpose for including s.42(nn) is to account if Cabinet decides to make regulations related to the control of notifiable diseases similar to the COVID-19 Preventative Measures regulation.